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
Abandonment
abandonment occurs when a tenant vacates the leased premises before the end of the term, has no intent to return, and defaults in the payment of rent
Time frame for seller to transfer title
a seller need not transfer title until clsoing or a reasonable time thereafter unless time is of the essence
Doctrine of lapse
causes a devise to fail when the beneficiary predeceases the testator.
the devised property will instead be distributed in accordance w/ will or intesacy law
Future interests that follow a life estate are…
transferrable, devisable, and descendiable
tenancy in common
tenants in common own seperate but undivided interests in the same interest of property.
each tenant in common owns the entire prop but must share that ownership with each other tenants in common
free to bind his individual interest in the prop without the other co-tentant’s consent
joint tenancy
a tenancy in which each cotenant has an undivided and equal interest in the property with the rights of survivorship
can be conveyed during a tenant’s lifetime without the other tenant’s consent
tenancy by the entirety
a joint tenancy between married persons
only available to married couples and can only be partioned if both spouses consent
___ and _____ are not devisable or inheritable
joint tenancy and tenancies by the entirety
Scope of an express easement is defined in…
the first instance by its terms but if the location of the easement isnt specified then the servient estate may fix the easement to a reasonable location
A variance from a zoning ordinance will be granted if…
landowner can show
(1) variance doesnt deviate from comphrensive zoning plan, and
2) compliance with zoning ord would cause unnecessary hardship
unnecessary hardship rejected when hardship is self imposed.
Doctrine of after acquired title
applies when grantor coneys a property by a warranty deed before acquriing title once grantor recieves title it will automatically transfer to the earlier grantee
A deed is delivered through a valid death escrow when…
1) deed is given to an escrow agent w/ instruction to transfer it to the grantee upon grantor’s death, and
2) grantor relinquishes right to take back deed
a landowner who alters his land by removing lateral support from his neighbor’s land is
strictly liable for any resulting damages to neighbor’s land
statutory right of redemption
allows debtor to reclaim property by paying foreclosure price to purchaser after foreclosure sale
equitable right of redemption
allows a debtor to recclaim mortgaged property at any time before foreclosure sale by paying full amount of debt and accured interest
wild deed
not properly recorded and imports no construcitve notice to a subsequent purchaser
recorded outside chain of title
notice type recording statute
purchaser can prevail only if
1) prior conveyancess were unrecorded,
2) purchase paid value for the land, and
3) purchaser took wihtout actual, inquiry, or constructive notice of prior conveyance
four methods of creating an easement
1) express
2) implied by prior use
3) implied by necessity
4) prescription
an easement can be terminated by a written release that complies with the SOF. the release must
1) reasonably ID the parties,
2) contain words of transfer,
3) described the nature of the easement, and
4) be signed by the easement holder
fee simple determinable
grantor grants poss only until an event occurs, or only for so long as something remains true
when the defeasible cond occurs, the grantor automatically racquires poss (possiblility of reverter)
durational: so long as, during, until
Fee simple subject to a condition subsequent
upon the occurence of a specific condition, the grantor has the right to terminate the estate
conditional: but if, provided that, unless
Fee simple subject to an executory limitation
fee simple that is divested, or shifted from one transferee to another transferee upon the occurence of some future event
upon the occurence of the stated event or condition, title passes to a third party
easement implied from prior use
1) two parcels of land are in common ownership at the time the prior use arose,
2) one of the parcels is conveyed to a grantee,
3) parcel conveyed had been recieving a benefit from parcel retained prior to the conveyance,
4) usage is reasoably necessary or convenient (important to enojyment of the conveyed land or highly convenient)
5) usage is apparent (visible)
When is an easement extingushed by merger?
When owner of dominant estate acquired servient estate
quick claim deed
contains no warranties of title and buyer taking has no claim against seller for damages resulting from encumberances against the property having a priority over buyers interest
Regardless of applicable mortage theory, mortgagee is entitled to take poss if mortgagor abandons the mortgaged property
mortgagee who does so incurs liablity as if she were the owner
majority rule for landlord’s requirement for delivery of leases premises
landlord must deliver actual possession of premises at start of lease and remove any third party who wrongfully possess it
minority rule for landlord’s requirement for delivery of leases premises
require landlord to deliver legal possession - no third party has a legal right to possess the propertty when lease starts
fixture
an item that is attached to the property with the intent that it remain attached and used for a larger component/function of the property
mortgage on the property includes fixtures on it
Vested Remainders
Not subject to conditions precedent and held by an indentifable living person
transferable inter vivos, devisable by will, and descenible by inheritance
contigent remainders
subject to conditions precedent or held by an unknown/unborn person
transferable inter vivos, devisable by will, and descenible by inheritance
Tenant’s entitlement to share of leasehold under power of eminent domain
unless otherwise provided under a lease, a taking of all or part of a leasehold under power of eminent domain entitles tenant to a share of condemnation award.
tenants share = FMV of condenmed leaseholder + compensation for any obligation to pay rent
take subject to a mortgage
dont agree to pay mortgage and not personally liable for it. the seller remains liable
assuming mortgage
agree to pay and primarily liable while seller is secondarily liable
annexed chattel
a life tenant (or her personal rep) may remove an annexed (attached) chattel within a reasoable time after life estate ends if:
1) the life tenant didnt itend to permanently annex the chattel, and
2) it’s removal will not cause substantial damage
deed in lieu of foreclosure
a mortgagor can avoid foreclosure by conveying title to the mortgaged property to the mortgagee.
Valid so long as fair to grantor and not simply a means of conveying og mortgage
a mortgagee that receives a deed in lieu of foreclosures is treated as having impliedly retained the right to foreclose on its mortgage - unless…
it had actual knowlege of a junior lean. if so, then the mortgaee cannot foreclose on its mortgage to eliminate that junior lien
when co-tenancy is divided in an action for partion by sale, any lien on a tendant’s proeprty interest will stay attached to that interest if the creditor isnt a party to the action
if a creditor is a party to the action then the lein will attach to sale proceeds attrituable to that interest
Timing for performance under SOF
under SOF time for performance isnt an essential term and courts infer perforamnce wihtin a reasonable time was intended
Warrant deed covenants
Three present covenants:
1. cov of seisin: a cov that the grantor owns the land that the deed purports to convey to the grantee;
- cov of right to convey: a cov that the grantor has a right to convey the land; and
- covenant against encumbernaces: a cov that there is no outstanding right or interest in a third party which does not totally negate the title the grantor purports to convey
Three future covenants:
1. cov for quiet enjoyment: a cov that the grantee will not be distirbued in her poss or enjoyment of the property by a third party’s lawful claim of title
- cov of warranty: the cov of warranty is a cov wherein the grantor agrees to defend on behalf of the grantee any lawful or reasonable claims of title by a third party and to compensate the grantee for any loss sutsained by a claim of superior titled
- cov for further assurances: cov to perform whatever acts are reasonably necessary to perfect the title conveyed if it turns out to be imperfect
Fair Housing Act
it is unlawful to refuse to rent a dwelling to a person based on the person’s race, color, religiion, sex, familial status, or national origin.
Fair House Act Exception (Section 3603(b)(2))
the anti-discrimination rule does not apply if the owner occupies one of the units in a multiple-unit dwelling containing no more than four units occupied by persons living independently of each other.
publishing ad that violates FHA of 1968
Section 3604(c) of the Act makes it unlawful to make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation,
or discrimination
*no exception for smaller buildings that are owner occupied
Implied cov of quiet enjoyment
Implied in every lease.
protects a tenant against a constructive eviction by the landlord, which occurs when the landlord fails to perform a duty owed to the tenant that substniatlly depreives the tenant of the use and enjoyment of the premises
Doctrine of constructive eviction
tenant has burden of showing
* breach of a duty to the tenant,
* tenant gave the landlord notice of the breach,
* breach resulted in denying the tenant substantial enjoymet of the premises,
* the tenant gave the landlord a reasonable opportunity to correct the breach, and
* the tenant timely vacated the premises
to enforce equitable servitudes need
horizontal and vertical privity
intent for cov to run
notice of cov
touch and concern the land
(PINT)
remedy = injunction
to enforce a real covenant
writing - writing that satisfies SOF
intent to run - promising party intends for cov to run to their succssors in interest
touch and concern = cov relates to the use, enjoyment, or occupation of the beneffited and burdended lands
Horizontal privity - promising party simulataneously transfer the land and creates the cov
vertical privity - successor of the beneffitted estae has a possessory interest and successor of the burdened estat has a promsing party’s entire ownership interest
notice - if the person to be bound was a purchaser, that person had notice of the covenant
(PINT)
remedy = money damages
For benefit of real cov to run
writing
intent to run
touch and concern
limited veritical privity
no notice required
Equitable mortgage
an equitable mortgage is created when an absolute deed (a deed that is free of encumberances and transfers unrestricted title to property) is given with intent to secure a debt
Adverse possession
ownership of real property is transferred to a person who exercises exclusive, continous, hostile, and open possession of that property for a specified period of time
Continuous - presence is continous and uninterrupted for statutory period
Hostile - possession is without owner’s consent
actual
Open, notorious, actual - possession is apparent or visible to reasonable owner
Exculsive - physical presence on land not shared with owner
CHANGE
Valid deed requirements
Written and signed by grantor
identifies grantor and grantee
indentifies land by reasonable certainty
includes words of transfer
for a judicially supervised foreclosure sale, the foreclosing mortgagee must give notice to the holders of any junior interest in the property.
any others who have an interest in the property (senior mortgage holder) or who are liable on the debt (guarantor) may be joined as proper but unecessary parties
shelter rule
a person who recieves prop interest from a BFP is entitled to the same protection under the recording act as the BFP even if that person wouldnt otherwise be protected by the recording act
doctrine of ademption
causes devise to faith by either:
extinction - specifically devised property not owned by testator (or destroyed or fundmanentally changed) at death
satisfaction - beneficary received devised property (or other asset intended to satisfy devise) during t’s life
doctrine of exoneration
allows beneficiary of specifically devised real proprety to use estate’s remaining assets to pay off any encumbrances on that property
doctrine of abatement
reduces devises that cannot be satisifed by assets remaining after testator’s debts are paid
residuary devises abated first, followed by general and then specific devises
prescription easement
one uses land openly, notorisouly, continously, and without permission from owner for the satutory period of time
an easement by necessity will be implied if
severance of common ownership - the dominant and servient estate were a single tract of land and the owner retained part of the tract and conveyed the rest to another
strict necessity - the easment is absoultely necessary for the use and enoyment of the land
*runs with the land
a claim of constructive eviction is made as a defense to a landlord’s action for…
damages or unpaid rent
In order to establish a constructive eviction
tenant must prove that the landlord breached a duty to the tenant, such as a duty to repair, and that the landlord’s breach caused a loss of the substantial use and enjoyment of the premises
tenant must also show that he gave the landlord notice adequate to permit the landlord to meet his duty to the tenant and that the tenant vacated the leased premises
landlord’s duty to repair leased premises - residential @ common law
no duty to repair unless statute or contract requires
landlord’s duty to repair leased premises - residential - majority rule
duty to repair substantial defects under implied warranty of habitability
landlord’s duty to repair leased premises - commercial
no duty to make ordinary repairs unless statute or k requires
Does a retention of keys alone constitute accpetance of surrender?
No. not without other evidence showing that the landlord intended to accept the surrender
under common law, does a landlord have a duty to mitigate damages resulting from tenant’s wrongful termination of a lease?
no
a landlord cant sue a tenant for rents due in the future because there was always a possibility that the tenant might pay the rent when it was due
liability for private nuisance arises when the D’s interefence with the use and enjoyment of p’s property is both
substantial - offensive, annoying, or intolerable to a normal perosn in the community and
unreasonable - effectively renders the land unavail for ordinary use or enjoyment by the possessor and sasifies per se nuisnace, conduct unsuited to its location, avoidable harm, severe harm, malicious conduct
easement appurtenant
- benefits the owner of another parcel of land
- cannot be separated from the easement holder’s land.
- only binding on subsequent purchasers who take w/ notice of the easement
ways to terminate easements
destruction - servient estate condemned or destroyed by matural force
abandonment - dominant estate abandons easement
merger - dominant and sevient estates united in common ownership
prescription - servient owner prevents use for presciptive period
estoppel - dominant owner estopped from asserting easement
release - express release in writing satisfying statute of frauds
mnemonic: DAMPER
payment of preexisting mortgage obligation if periodic payment of interest only
life tenant is responsible for interest payments
future interest holder is responsible for principal payments due at a later date
payment of preexisting mortgage obligation if periodic payment of interest and principal
life tenant and future interest holder are responsible for payments equal to present value of each interest in property
seller’s duty to disclose @ common law
caveat emptor
no duty to disclose property defects unless otherwise provided
*minority rule
seller’s duty to disclose modern approach
must disclose known material defects that buyer could not reasonable discover
exception = as is clause
doesnt apply to commercial prop
when a co-tenancy is divided in an action for partition by sale, any lien on a tenant’s prop interest will stay attached to that interest if
the creditor is not a party to the action.
if credito is a party, then the lien will attach to the sale proceeds attributable to that interest
someone who is devised property is not a
BFP and is not protected by recording act
what makes a title unmarketable
defect in chain of title,
encumbrance,
viol of a zoning ordinance,
title acquired by adv poss
DEVA
