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Property Flashcards

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1
Q

What is a devisee?

A

Someone who takes property by will.

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2
Q

What is an heir?

A

Someone who takes property by intestacy law.

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3
Q

What is a grantee?

A

Someone who takes inter vivos - between the living.

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4
Q

What are the present possessory estates?

A
  1. Fee simple absolute
  2. Defensible
    - fee simple determinable
    - fee simple subject to condition subsequent
    - fee simple subject to executors interest
  3. Fee tail
  4. Life estate
  5. Non-free hold - landlord-tenant
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5
Q

What is a fee simple absolute?

A

“To A (and his heirs)”

Best type of estate, may last forever. alienable, devisable, descendable.

No future interest.

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6
Q

What is a defeasible estate? What are the types?

A

An estate that may terminate upon some happening or event before its maximum time has run.

  1. fee simple determinable
  2. Fee simple subject to condition subsequent
  3. Fee simple subject to executory interest
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7
Q

What is a fee simple determinable?

A

Created by durational language - so long as, during, while, etc.

Creates a future interest in grantor - possibility of reverter.

Terminates automatically on happening of event and returns to grantor.

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8
Q

What is a fee simple subject to condition subsequent?

A

Created by conditional language: provided, however if, but if, etc.

Creates future interest in grantor - power of re-entry/right of termination.

Power of termination must be expressly reserved to grantor.

Does not automatically transfer - grantor has to exercise right.

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9
Q

What is a fee simple subject to executory interest?

A

Created by either durational or conditional language.

Termination occurs on some event, property passes to 3rd party, not grantor.

Creates a future interest in 3rd party - executory interest.

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10
Q

What is a fee tail?

A

Common law estate descended to grantee’s children only.

“To B and the heirs of his body”

If no lineal descendants, passes to grantor or 3rd party - creates remainder or reversion future interest.

Treated as fee simple absolutes in most jurisdictions.

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11
Q

What is a life estate?

A

“To B for life”

Creates future interest - reversion or remainder.

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12
Q

What is a life estate pur autre vie?

A

A life estate measured by the life of someone other than the grantee.

“A to B for the life of C”

Creates future interest - reversion or remainder.

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13
Q

What is a non-freehold estate/term estate?

A

Estate that is limited in duration - basically landlord-tenant.

Reversion - future interest in grantor

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14
Q

What are the future interests in the grantor?

A
  1. Possibility of reverter
  2. Right to re-enter
  3. Reversion
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15
Q

What are future interests that aren’t in the grantor?

A
  1. Executory interests
    - shifting
    - springing
  2. Remainders
    - vested
    - contingent
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16
Q

What is a possibility of reverter?

A

a future interest in the grantor that follows a fee simple determinable

The land automatically reverts back to the grantor when the event happens.

Not subject to the rule against perpetuities (already vested in grantor)

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17
Q

What is the power of termination/right to re-entry?

A

Future interest in the grantor with a fee simple subject to condition subsequent.

Not created automatically, must be explicitly reserved.

Property does not automatically revert when condition is met - grantor must exercise right.

Not subject to the rule against perpetuities (already vested)

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18
Q

What is a reversionary interest?

A

A future interest in the grantor when they transfer less than a fee simple absolute. Like a life estate, etc.

Not subject to Rule against Perpetuities (already vested)

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19
Q

Are grantee future interests transferable?

A

Yes.

Except, power of termination/right to reentry is not transferable inter vivos.

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20
Q

What is a remainder?

A

A future interest created in a third person that is intended to take effect after the natural termination of a preceding estate.

“To A to B for like, then to C”

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21
Q

What is a contingent remainder?

A

Any remainder that is not vested.

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22
Q

When is a remainder vested?

A
  • created in an ascertainable person (not “the oldest child of C then living”)
  • not subject to any condition precedent, other than the termination of the preceding estate.
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23
Q

What is a vested remainder subject to total divestment?

A

A remainder that is vested, but may be terminated based on the happening of some future event.

“A to B for life, then to C, so long as liquor is never served on the premises”

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24
Q

What is a vested remainder subject to open?

A

A remainder that has been made to a class and has at least one member who is vested, but may have other members join the class later.

“A to B for life, then to the children of C” - vested once C has a child, but open because C could have more children.

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25
Q

When does a class close?

A

As soon as one member of the class becomes entitled to immediate possession of the property.

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26
Q

What is an executory interest?

A

A future interest in a 3rd person that cuts short the previous estate before it would have naturally terminated.

Follows a defeasible fee.

Subject to the Rule against Perpetuities.

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27
Q

What is a shifting executory interest?

A

Passes from one grantee to another.

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28
Q

What is a springing executory interest?

A

Transfers from the grantor to 3rd party.

Property goes from grantor to grantee, then back to grantor, then to 3rd party after a condition.

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29
Q

When does the waste doctrine apply?

A

When an owner has less than a fee simple - future interests, concurrent estates, landlord-tenant.

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30
Q

What are the types of waste?

A
  1. Voluntary - overt harm
  2. Permissive - negligently allows damage
  3. Ameliorative - makes unjustified or unapproved changes that actually increase value
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31
Q

What is the rule against perpetuities?

A

No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

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32
Q

When does the Rule Against Perpetuities apply?

A
  • executory interests
  • contingent remainders
  • vested remainders subject to open
  • purchase options
  • right of first refusal
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33
Q

When is a total restraint on alienation upheld?

A

On less than a fee, if reasonable.

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34
Q

What are partial restraints on alienation?

A

Purchase option
Right of first refusal

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35
Q

When are partial restraints on alienation upheld?

A

When reasonable. Look to limits in scope and time, purpose, legitimate interests of the party, whether the restraint is supported by consideration.

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36
Q

What are the types of co-tenancy?

A
  1. Tenancy in common
  2. Joint tenancy
  3. Tenancy by the entirety
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37
Q

What is a tenancy in common?

A

Each co-tenant owns an undivided possessory interest int he whole of the property. No right of survivorship.

Presumed to be tenancy in common unless stated otherwise.

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38
Q

What is right of survivorship?

A

If one of the co-tenants dies, the property passes to the co-tenant automatically.

Must state explicitly.

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39
Q

What is a joint tenancy?

A

Each co-tenant owns an undivided possessory interest in the whole of the property and has a right of survivorship.

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40
Q

How is a joint tenancy created?

A

Traditionally: 4 unities
1. Time
2. Title
3. Interest
4. Possession

Modern - only requires unity of interest and possession

MUST be explicit about right of survivorship

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41
Q

What is tenancy by the entirety?

A

Gives married couples an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise.

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42
Q

What is a community property state?

A

State that doesn’t recognize tenancy by the entirety (for married couples)

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43
Q

When does severance occur for a tenancy by the entirety?

A
  1. Spouses jointly convey to a 3rd party
  2. One spouse conveys to the other spouse,
  3. The couple divorces (separation is not enough)
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44
Q

What happens when a joint tenancy is severed?

A

It becomes a tenancy in common.

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45
Q

Can an interest in a joint tenancy be devised in a will?

A

No. Upon a tenant’s death, the surviving joint tenant becomes sole owner of the land.

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46
Q

How is a joint tenancy severed?

A
  • partition action
  • joint tenant sells interest in property
  • in title theory jurisdiction (minority) - a joint tenant mortgages
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47
Q

What are the types of leases?

A
  1. Term of years
  2. Periodic tenancy
  3. Tenancy at will
  4. Tenancy at sufferance
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48
Q

What is a term of years?

A

A lease that has a definite beginning and end
Ends automatically at the end of the period, no notice needed

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49
Q

What is a periodic tenancy?

A

A lease with a set beginning date and continues from period to period without a set termination date, until notice is given. Notice must be equal to the rental period, up to 6 months max.

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50
Q

What is a tenancy at will?

A

No fixed duration, lasts as long as the parties desire. Must be by express agreement.

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51
Q

What is a tenancy at sufferance?

A

A holdover tenant that the landlord wants to leave, but hasn’t been able to get them off the property. Becomes a periodic tenant if rent is accepted.

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52
Q

When does a tenancy at will terminate?

A
  • the death of either party
  • the tenant’s causing the premises to fall into disrepair that affects the property value
  • the tenant’s assigning his tenancy to someone else
  • the landlord’s leasing the property to someone else
  • the landlord’s conveying his interest in the property to a third person
    –> no notice required
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53
Q

How much rent is the tenant liable for in a tenancy for years?

A

All unpaid rent in the lease. Anticipatory repudiation is allowed, but the landlord has a duty to mitigate.

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54
Q

How much rent is the tenant liable for in a periodic tenancy?

A

The rental obligation up until proper notice is given to terminate.

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55
Q

How much rent is the tenant liable for in a tenancy at will?

A

The amount of the rest stated in the agreement that is already owed. May not be money, but instead services.

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56
Q

How much rent is a tenant liable for in a tenancy at sufferance?

A

The reasonable rental value of the property.

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57
Q

How much rent is a tenant liable for in a tenancy at sufferance?

A

The reasonable rental value of the property.

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58
Q

What are the tenant’s defenses to avoid rent payment?

A
  1. Failure to deliver possession (under majority rule)
  2. Tenant has been evicted
  3. Tenant surrenders premises to landlord
  4. Destruction (under modern, not common law)
  5. Warranty of habitability
  6. Other contract defenses
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59
Q

What is constructive eviction?

A

The landlord has allowed the condition of the premises to deteriorate such that the tenant is essentially being forced out. Substantial interference with use and enjoyment of property.

Tenant must actually move out in reasonable time.

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60
Q

What is the warranty of habitability?

A

Implied warranty that landlord will maintain premises in a habitable condition.

Could become constructive eviction.

Must give landlord notice and reasonable time to fix the problem. OR tenant can repair and offset rent with costs of repairs

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61
Q

Does the landlord have an obligation to maintain or repair premises?

A

Not under common law, and not beyond warranty of habitability or other statutory obligations.

Landlord retains duty for common passageways and common areas.

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62
Q

What are the common and modern law rules on removing fixtures?

A

Common law: anything except a trade fixture (used in the course of business) cannot be removed by tenant

Modern law: if the fixture can be removed without affecting the premises, the tenant can do so.

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63
Q

When can the landlord retake property?

A

If the tenant has committed a material breach.

Common law allows use of force.

Modern law does not allow use of force, and requires legal process with notice.

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64
Q

Can the landlord transfer interest in rent?

A

Yes. The landlord of record not he day the rent is due is the one entitled to the rent.

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65
Q

Can the landlord transfer interest in rent?

A

Yes. The landlord of record not he day the rent is due is the one entitled to the rent.

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66
Q

What is the difference between an assignment and a sublease of the tenant’s interest?

A

Assignment - tenant transfers all of the remainder of the rental obligation.

Sublease - tenant transfers less than the entire interest in the lease, only a portion of the time left on the obligation.

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67
Q

What obligations do the tenant and assignee have in an assignment of a lease?

A

Both tenant ans assignee are in privity with the landlord, so both are liable for the rent.

Tenant is still liable unless there is a valid contract novation.

68
Q

What obligations do the tenant and sublesse have to pay rent in a sublease?

A

Sublessee is in privity with the tenant. Sublessee owes rent to tenant who owes rent to landlord.

69
Q

What is a covenant?

A

A promise to do or not to do something on the land. Remedy is money damages.

70
Q

What is required for a covenant to run with the land?

A
  1. Privity - horizontal and vertical
  2. Intent in writing
  3. Notice
  4. Touch and concern
71
Q

What is horizontal privity?

A

The relationship between the original covenantor and coventantee.

Requires privity of contract in connection wit the land - landlord/tenant, grantor/grantee, mortgagor/mortgagee.

72
Q

What is vertical privity for covenants?

A

The relationship between an original party to a running covenant and the successor in interest.

Only exists when the holder of the new serviert estate transfers all his interest to the new owner.

73
Q

What are the three types of notice for covenants and servitudes?

A
  1. Actual notice
  2. Constructive (Record) notice
  3. Inquiry notice
74
Q

What is an equitable servitude?

A

A promise related to land that runs with the land.

Remedy is equitable - injunction.

75
Q

What is the difference between a covenant and an equitable servitude?

A

Both are promises to do or not do something that can run with the land.

Covenant - remedy is damages.

Equitable servitude - remedy is injunction.

76
Q

How is an equitable servitude created?

A
  1. Touch and concern
  2. Intent in writing
  3. Notice
77
Q

What are the factors to determine a common scheme or plan?

A
  • A large percentage of lots expressly burdened;
  • Oral representations to buyers;
  • Statements in advertisements to buyers; or
  • Recorded plat maps or other declarations.
78
Q

What are the types of servitudes?

A
  1. Easement
  2. License
  3. Profit
  4. Covenant
  5. Equitable servitude
79
Q

How is a covenant or equitable servitude terminates?

A
  1. Written release
  2. Merger of the estates
  3. Abandonment
  4. Estoppel
  5. Changed circumstances so that the reason behind the restriction is no longer valid.
80
Q

What is an easement?

A

A grant of a non-possessory property interest in land.

81
Q

What is an easement appurtenant?

A

Benefits a parcel of land, the dominant estate.

82
Q

What is an easement in gross?

A

Benefits a person or entity, not a parcel of land

83
Q

How is an easement created?

A
  1. Express (in writing)
  2. Implication
    - implied by prior use
    - by necessity
    - by platt
  3. By prescription (adverse possession)
84
Q

How is an easement implied by prior use created?

A
  1. Severance of title to land held in common ownership
  2. The use giving rise to the easement was in existence at the time of the severance.
  3. The use was apparent and could be discovered upon reasonable inspection
  4. At time of severance, the easement was necessary for the proper and reasonable use of the dominant tract.
85
Q

How is an easement by necessity created?

A
  • common ownership of the dominant and servient estate, then severance
  • strict necessity for the easement at the time of the severance
86
Q

What is an easement by plat?

A

A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision.

87
Q

What is an easement by prescription?

A

From adverse possession - actual, hostile, open, notorious, and exclusive use of land for the statutory period.

Can’t get full title, because not exclusive use.

88
Q

How an easement terminated?

A
  1. Destruction of the servient estate
  2. Merger of title
  3. Written release
  4. Abandonment - intent and affirmative act
  5. Estoppel
  6. Severance
  7. Prescription
  8. Servient estate sold
  9. End of necessity
89
Q

What is a profit (property)?

A

A non-possessory interest in land - the holder of the profit has the right to go on someone else’s land and take something off to it.

Freely transferable.

90
Q

How is a profit created and terminated?

A

Created - expressly or by prescription

Terminated same as easements

91
Q

What is a license?

A

A privilege to do something on someone else’s property.

Can be oral, and freely revocable.

Not transferable unless licensor intends.

92
Q

When is a license irrevocable?

A
  1. When you’re going onto someone’s land to get your own property.
  2. Executed license - when the licensee expends money or labor in reliance on the license.
93
Q

When does a license terminate?

A

On the death of the licensor or the conveyance of the servient estate.

94
Q

What can zoning regulations cover?

A
  • use of land, buildings, and structures
  • size, height, area, location, construction, repair, and removal of structures,
  • areas and dimensions of land, water, and air-space to be occupies and open spaced to be left unoccupied,
  • excavation or mining of soil or other natural resources.
95
Q

When does a zoning regulation violate due process?

A
  • procedural - no notice and opportunity to be heard
  • substantive - arbitrary and capricious -> not reasonably related to public health, welfare, or safety
96
Q

When does a zoning ordinance violate equal protection?

A

If similarly situated people are treated differently.

Apply rational basis review, unless a fundamental right or suspect classification.

97
Q

When can a zoning ordinance be subject to a first amendment challenge?

A

When it regulates billboard or aesthetics.

98
Q

What are concerns for re-zoning?

A

It must be based on a change of conditions in the land, neighborhood, environment, or public opinion.

Rezoning of a specific piece of land requires procedural due process.

99
Q

What is a variance to a zoning regulation?

A

Permission by the local zoning authorities to use property in a manner forbidden by zoning ordinances.

100
Q

When can a variance be sought from an area zoning restriction?

A

When there are practical difficulties in meeting the requirements of the zoning code or the requirements are unreasonable or create undue hardship.

101
Q

When can a variance be sought from a use zoning restriction?

A

Must show undue hardship - no viable use of the property without a use variance.

102
Q

What is a special use permit in zoning?

A

Required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area.

Requires a public hearing with notice to all who have an interest.

103
Q

What are lateral support property rights?

A

The right of a landowner to physical support of his or her land in its natural state by adjoining land.

A landowner has an absolute right - strict liability for any damages caused to adjoining land.

104
Q

What are subjacent support rights?

A

The right of support extends to land in its natural state and buildings existing on the date when the subjacent estate was severed from the surface.

Underground landowner is liable for damages to subsequently erected buildings only if he or she is negligent.

105
Q

What is riparian view of water rights/Reasonable use doctrine?

A

Majority view. a riparian owner can make reasonable use of riparian (navigable) water as long as his use does not interfere unreasonably with the rights of other riparian land owners

106
Q

What is the prior appropriation view of water rights?

A

Awards the right to use the water to the first person to take the water for beneficial purposes.

Minority view, western states.

107
Q

What are the 3 rules for diffuse surface water?

A
  1. Common enemy rule
  2. Civil law rule - no interference with any surface water is allowed.
  3. Reasonable use rule
108
Q

What is the common enemy rule?

A

floodwater can be diverted by any method onto another’s land (default rule)

109
Q

What is the reasonable use rule for diffuse surface water?

A

surface water can be diverted onto another’s land if using reasonable means to do so.

110
Q

What is the doctrine of part performance for the sale of land?

A

Exception of Statue of Frauds. Can be used to enforce an oral contract for the sale of land.

Must show at least two of three:

  1. Payment of all or part of the purchase price
  2. Taking of possession
  3. Making substantial improvements
111
Q

Where does risk of loss fall in a land-sale contract?

A

Majority rule - after contract is formed, risk of loss is on the buyer.

Uniform Vendor and purchaser act - risk of loss remains with the seller until the legal title or possession passes to the buyer.

112
Q

What is the implied covenant of marketable title?

A

In every land sale contract unless specified otherwise.

The seller must deliver title at closing that is reasonably free from defects in both title and law.

no:
- unpaid mortgages or liens
- covenant or easement that restricts use
- title acquired by adverse possession
- existing condition that violates a zoning ordinance

113
Q

What is a quitclaim deed?

A

“As-is” deed. The seller conveys whatever interest they have, including defects. No covenants or warranties, so buyer cannot sue based on covenants (including marketable title) after closing.

114
Q

What is the merger doctrine in land sale contracts?

A

The covenant of marketable title is in the contract. The contract merges with the deed at closing. After closing, the buyer cannot assert the covenant of marketable title and must sue on any covenants included in the deed.

115
Q

What is a general warranty deed?

A

Contains all 6 covenants of title, covers the period prior to the sale. The seller warrants that there are no defects in the chain of title. Buyer can sue on any of the covenants of title.

116
Q

What is a special warranty deed?

A

May contain all or some of the covenants of title, and typically limits liability only to the period of the seller’s ownership of the land. Seller warrants that no defects have occurred during his ownership.

117
Q

What are the covenants of title in general warranty deeds?

A

Present covenants
1. Seisin
2. Right to convey
3. Covenant against encumberances

Future covenants
4. Quiet enjoyment
5. Warranty
6. Further assurances

118
Q

What is the difference between present and future covenants of title in deeds?

A

Present covenants do not run with the land and are breached only at the time of closing.

Future covenants do run with the lands, and can be breached at closing or afterwards.

119
Q

What is the covenant of seisin?

A

Present covenant.

Grantor promises that he owns the property.

120
Q

What is the covenant of the right to convey?

A

Present covenant.

Grantor promises that he has the power to convey the property.

121
Q

What is the covenant against encumbrances?

A

Present covenant.

The grantor promises that there are no encumbrances on the land, visible or invisible.

122
Q

What is the covenant of quiet enjoyment?

A

Future covenant

Grantor promises that the grantee will not be disturbed by a 3rd party asserting a valid claim to the land.

123
Q

What is the covenant of warranty?

A

Future covenant

Grantor promises to defend the grantee against any 3rd party claim.

124
Q

What is the covenant of further assurances?

A

Future covenant

Grantor promises to do everything reasonably necessary to perfect the grantee’s title.

125
Q

What is the implied warranty of quality in land sales?

A

Covers significant latent defects in new or remodeled homes sold by builders and developers.

Defects must be discovered within a reasonable time after construction or remodeling.

126
Q

What is a mortgage?

A

An interest in real property that is designed to secure performance of an obligation (repayment of debt usually).

127
Q

Who is a mortgagor?

A

The debtor, the person borrowing the money and issues a mortgage to the lender.

128
Q

Who is the mortgagee?

A

The bank or lender - the creditor receiving the mortgage

129
Q

How is a mortgage created?

A

In writing, with a:

  • mortgage deed
    And
  • promissory note
130
Q

What is a mortgage deed?

A

A document that conveys the interest in the property to the mortgagee.

Must include:
- description of parties
- description of property
- intent to create a security interest

Must be recorded, like any other security interest agreement

131
Q

What is a mortgage note/promissory note?

A

Represents the mortgage obligation, creates personal liability in the mortgagor (borrower)

Includes:
- loan amount
- interest rate
- loan term
- prepayment terms
- acceleration clause
- due on sale clause

132
Q

What is an accelerating clause in a mortgage note?

A

Permits the mortgagee to declare the entire amount of the mortgage obligation due and payable if the mortgagor defaults.

133
Q

What is a due on sale clause in the mortgage note?

A

Requires the entire balance due to be paid before the property may be transferred by the mortgagor/seller to a buyer.

134
Q

What is a purchase money mortgage?

A

Mortgage given to secure a loan that enables the mortgagor to buy title to the property or make improvements, given in the same transaction as purchase of the property

Has priority over other liens on the property.

135
Q

What are the creditors remedies under a mortgage?

A

Can sue:

  • in personam - on the note
  • in rem - foreclosing on the land through the mortgage
136
Q

What is a deed of trust?

A

The debtor borrows money from the creditor and executes a deed on the property. The deed is given to a 3rd party (trustee) who holds onto the deed until the debt is paid.

137
Q

What is a future-advance mortgage?

A

A line of credit secured by property where money can be borrowed as needed. Executed at one date, but funds aren’t accessed until later.

Attaches on the date of execution, if notice to future creditors is given.

If obligatory (no discretion to lender) then takes priority over other liens.

138
Q

What is an installment land sale contract?

A

The buyer takes land and agrees to pay off the purchase price in installments. Buyer takes possession, but seller holds on to the deed (and right to retake land) until the debt is entirely paid.

139
Q

What is the difference between and obligatory and an option future-advance mortgage?

A

Depends on whether duty or discretion to give out funds.

Obligatory takes priority over other later liens.

Optional loses priority when mortgagee has actual notice over subsequent liens.

140
Q

Can a possessor of land under a mortgage commit waste?

A

No. They have a duty to manage the property in a reasonably prudent manner.

141
Q

What are the three mortgage theories?

A
  1. Lien theory - default.
  2. Title theory
  3. Intermediate theory
142
Q

What is the lien theory of mortgages?

A
  • mortgagee receives a lien on the property
  • mortgagor retains rights to possess property and legal title, and right to rents and profits from mortgaged property, unless and until foreclosure occurs
143
Q

What is the title theory of mortgages?

A

Common law model.

Mortgagee receives legal title and has a right to take possession and collect rents and profits. Title is subject to a condition subsequent that gives mortgagor property if loan is repaid.

Mortgagor has possession until default.

144
Q

What is the intermediate theory of mortgages?

A

Lien theory applies until default, then title theory applies.

Prior to default, mortgagor has the right to possession, rents, and profits.

After default, the mortgagee is entitled to possession, rents, and profits.

145
Q

What are the three types of transfers by mortgagor?

A
  1. Buyer takes subject to the mortgage (default)
  2. Buyer assumes the mortgage
  3. Buyer assumes the mortgage with novation
146
Q

Who bears responsibility for the mortgage when a buyer takes the property subject to the mortgage?

A

The mortgagor - the buyer has no responsibility to pay, either before or after foreclosure.
–> Default, if not specified

147
Q

Who bears responsibility for the mortgage when a buyer assumes the mortgage?

A

Both the buyer and the original mortgagor. The buyer is primarily liable.

148
Q

Who bears responsibility for the mortgage when the buyer assumes the mortgage with novation?

A

The buyer forms a new contract with the lender. The buyer alone is responsible for paying.

149
Q

What are the types of foreclosure?

A
  1. Judicial foreclosure
  2. Private sale/power-of-sale - occurs without judicial action , pursuant to a power of sale clause in the mortgage documents
150
Q

What is a deficiency judgement at foreclosure?

A

When the foreclosure raises less money than the amount of the outstanding debt, the mortgagee can obtain the difference from anyone liable for the obligation.

151
Q

What is required of a judicial foreclosure?

A
  1. Public
  2. Properly noticed
  3. Conducted in a reasonable manner
  4. Result in a fair price - as a result of mortgagee’s due diligence in conducting the sale
152
Q

In what order are the proceeds of a foreclosure distributed?

A
  1. Costs of the sale
  2. Security interest foreclosed
  3. Junior lien holders terminated by the sale
  4. Remains to the mortgagor
153
Q

What is redemption on a mortgage?

A

A remedy of the debtor. Can stop the foreclosure by paying off the debt or bringing the loan current if no acceleration clause.

Common law - right exists until foreclosure sale. (equitable right)
Statutory - right exists up to a limited time after sale, can force buyer to sell the property at the foreclosure price.

154
Q

What is adverse possession?

A

Obtaining title from the rightful owner.

Requires continuous, open, notorious, actual, and hostile occupation of the land, with hostile intent.

Permission destroys intent.

Common law requires 20 years.

155
Q

Can successive adverse possessor’s periods of possession be combined?

A

Yes, for purposes of time requirement, if there was a transfer from one to the other. Called tacking.

156
Q

What is required for a transfer of title by deed?

A
  1. Donative intent
  2. Delivery of the deed
  3. Acceptance of deed by buyer
157
Q

How may a deed be delivered to grantee to transfer title?

A
  1. Giving the deed to grantee (unless the grantor did not intend an actual transfer of property)
  2. Grantor retaining the deed, only if delivery was intended
  3. Grantor gives deed to a 3rd party to give to grantee
158
Q

What are the written requirements for a valid deed?

A
  1. Identification of parties
  2. Indication of intent to make a transfer
  3. Description of property
  4. Grantor’s signature
159
Q

What are the three types of recording statutes?

A
  1. Race statute
  2. Notice statute
  3. Race-notice statute
160
Q

Who prevails in a race statute?

A

The person who records first.

161
Q

Who prevails in a notice statute?

A

The last bona fide purchaser who takes without notice of any other claim.

162
Q

Who prevails in a race-notice statute?

A

A bona fide purchaser who takes without notice and records first.

163
Q

What is the shelter rule?

A

A person who is a successor in interest to a person protected by the recording statute is also protected.

164
Q

What is the impact of a mortgage on a joint tenancy?

A

Title theory - severs joint tenancy
Lien theory (default) - does not sever joint tenancy

165
Q

When is a forced sale appropriate in an action to partition co-owned land?

A

When there is no fair and equitable division possible.

166
Q

When is an agreed-upon land boundary valid?

A
  1. neither party knows the true boundary
  2. there is express or implied agreement as to the location of the boundary
  3. existing possession conforms to that agreement.
167
Q

Are adverse possessors protected by recording statutes?

A

No. Acquisition by adverse possession is not a conveyance.

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