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MEE > Property > Flashcards

Property Flashcards

1
Q

Land Interests - Present possessory estates

A

Someone has the right to land now; someone may get the right to land later in some cases.

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2
Q

Present possessory estates - Fee simple absolute

A

Largest possible estate in land, indefinite duration (“To A and his heirs”).

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3
Q

Present possessory estates - Fee simple determinable

A

Terminates automatically after a duration, grantor has possibility of reverter (“so long as”).

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4
Q

Present possessory estates - Fee simple subject to condition subsequent

A

Can terminate after a named event, grantor has right of entry (“but if”).

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5
Q

Present possessory estates - Fee simple subject to executory interest

A

Automatically divests in a third party if named event occurs.

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6
Q

Present possessory estates - Invalid conditions

A

Violate public policy, e.g., encourage divorce, restrict marriage.

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7
Q

Present possessory estates - Restraint on alienation

A

Public policy favors the alienability of property. Courts generally uphold reasonable conditions and restraints.

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8
Q

Present possessory estates - Life estate

A

Lasts for duration of grantee’s life, after which the estate transferred to someone else lasts for named grantee’s life.

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9
Q

Present possessory estates - Life tenant duties

A

Maintain the property in reasonable state; pay mortgage interest only; pay ordinary taxes if income or use.

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10
Q

Present possessory estates - Life estate pur autre vie

A

Life of another; measured by life other than grantee’s (“to A for life of B”).

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11
Q

Present possessory estates - Waste

A

Any act by the life tenant that adversely injures future interest of remainderman or reversioner.

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12
Q

Waste - Voluntary waste

A

Willful or negligent acts that decrease value of estate, intentional/negligent damage.

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13
Q

Waste - Permissive waste

A

Failure by LT to take reasonable steps to preserve land, or pay taxes/interest (not principal).

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14
Q

Waste - Ameliorative waste

A

Change that benefits property; CL: Prohibited. Modern: Allowed if FMV not impaired and future remainderman consent or substantial, permanent change in neighborhood deprived property of value.

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15
Q

Future interests - Possibility of reverter

A

A type of right but not a future interest; automatically in effect when a grantor creates FSD (see above).

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16
Q

Future interests - Right of entry/power of termination

A

Must expressly state in conveyance of FSSCS and affirmatively exercised.

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17
Q

Future interests - Reversion

A

Created when grantor transfers less than a fee interest to 3P (“to A for life, then to B for life”).

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18
Q

Future interests - Executory interest

A

Created in favor of 3P, but that divests a prior estate on the occurrence of a named event.

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19
Q

Future interests - Shifting executory interest

A

Future interest in 3P that divests preceding freehold estate (3P).

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20
Q

Future interests - Springing executory interest

A

Follows a gap or cuts short grantor’s estate (“to A if…”).

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21
Q

Future interests - Remainder

A

Future interest created in 3P (remainderman) to be taken after natural termination of preceding estate.

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22
Q

Remainder - Vested remainder

A

Created in an ascertainable person and not subject to a condition precedent.

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23
Q

Remainder - VR subject to open

A

Class gift; interest subject to diminution due to new class members (birth of additional persons who will share in the remainder as a class).

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24
Q

Remainder - VR subject to total divestment

A

Vested subject to condition subsequent (“to A for life, then to B and B’s heirs, but if B dies unmarried, then to C and heirs”).

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25
Q

Future interests - Contingent remainder

A

Remainder not vested in an unborn/unknown person, or subject to a condition precedent (“to A for life, then to B if B has children”).

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26
Q

Future interests - Modern application

A

Remainders and executory interests are transferable, descendible, and devisable inter vivos.

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27
Q

Future interests - Shelley’s Rule

A

If the same instrument creates a life estate in A with remainder to A’s heirs, only A has a transferable interest.

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28
Q

Future interests - Doctrine of Worthier Title

A

Remainder in grantor’s heirs (“to A for life, then O’s heirs”) is invalid and becomes reversion in grantor (O).

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29
Q

Rule Against Perpetuities (RAP)

A

An interest is valid only if it must vest or fail within 21 years after the death of a measuring life in being (someone who existed when the interest was created).

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30
Q

Concurrent estates - Tenancy in common (TIC)

A

Each TIC is entitled to possession of the whole property. No right of survivorship. Interest freely alienable, inheritable, and devisable by will.

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31
Q

Concurrent estates - Joint tenants (JT)

A

Must take identical interests, at the same time, by the same instrument, with the same right to possession. Right of survivorship. Severance by sale, partition, or mortgage.

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32
Q

Concurrent estates - Tenancy by entirety (TE)

A

JT between married persons. Right of survivorship. Requires consent of both to transfer or encumber.

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33
Q

Concurrent Estates - Tenancy by the entirety (T/E)

A

Only between legally married parties at time of grant. Conveyance needs both spouses (effective if by both). Severed by death, divorce, mutual agreement.

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34
Q

Co-Tenancy - Possession

A

Right to possess the whole property. If ousted from any portion, can sue for S and/or ejectment.

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35
Q

Co-Tenancy - Partition

A

Right to partition (ending CT) to physically divide if feasible, or to sell and divide proceeds.

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36
Q

Co-Tenancy - Rents/Profits

A

Tenants in common (TIC) share rent from land proportionally. Profits belong to CT in proportion they own; offsets contributions for preservation and protection (e.g., taxes, mortgages, necessary repairs shared proportionally).

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37
Q

Co-Tenancy - Improvements

A

No duty for agreement, but difference from increased price created due to improving CT can be offset with any rent collected and split rest of rent.

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38
Q

Co-Tenancy - Duty of fair dealing

A

If a CT gets title or lien on the property, other CTs may join and pay share or forfeit interest.

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39
Q

Common Interests - Homeowner’s associations (HOAs)

A

Cooperative apartments (co-ops), condominiums (condos); property owned by owners; covenants and restrictions (incl. fees) that govern whole community.

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40
Q

Common Interests - HOA

A

Manage planned unit developments (PUDs) or common interest developments (CIDs).

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41
Q

Common Interests - Co-op

A

Holds title to land; co-op board chooses and can occupy premises. Each condo owner owns interior; all owners own walls, land, common areas as co-tenants.

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42
Q

Adverse Possession (AP)

A

A trespasser may acquire title to real property by AP. Possessor must show actual entry giving exclusive possession that is continuous, hostile, and for the statutory period. Gov’t land not subject to AP.

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43
Q

AP - Actual and Exclusive

A

Physically occupied portion, not shared with the true owner or the public at large.

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44
Q

AP - Open and Notorious

A

Plainly apparent occupation of land so as to put the true owner on notice of use upon inspection (actions contrary to true owner’s intent (regardless of possessor’s intent)).

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45
Q

AP - Continuous

A

Continuity of stay as of original owner (e.g., leaving for a year breaks continuity).

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46
Q

AP - Statutory period

A

May be tolled if disability (insanity, jail, non-age) already exists at the time of entry until disability is removed.

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47
Q

AP - May take periods of AP by previous possessor

A

Requires intentional transfer. Combine to meet statutory requirement.

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48
Q

AP - Rights

A

Same as true owner (remedies, title, etc.) at time of entry. Must quiet title to make marketable.

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49
Q

T - Tenancy for years

A

For fixed period. Terminates automatically. Created by express agreement (writing > 1 yr).

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50
Q

T - Periodic tenancy

A

Created by express/implied agreement (LL leases at month-to-month), or operation of law (T stays after lease expires). For fixed period until self-renews until notice equal to length of period, up to 6 months

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51
Q

T - Tenancy at will

A

No stated duration. Lasts until termination, death, or transfer. Created by express agreement or by implication.

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52
Q

T - Tenancy at sufferance

A

Created by express/implied agreement (LL leases at month-to-month), or operation of law (T stays after lease expires). For fixed period until self-renews until notice equal to length of period, up to 6 months.

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53
Q

T - Tenant duties

A

Pay rent and avoid waste

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54
Q

T - Duty to pay rent

A

Duty to pay rent ends when T surrenders leasehold interest back to LL.

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55
Q

T - Duty to avoid waste

A

No waste if premises damaged without fault of LL or T

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56
Q

Landlord Duties (LL)

A

LL may enter and inspect, T must not commit voluntary (affirmative waste); neglect or permissive waste.

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57
Q

LL - Duty to deliver possession

A

at beginning of lease term (breach if holder T not evicted)

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58
Q

LL - Implied covenant of quiet enjoyment

A

LL possession of premises. Eviction breaches this covenant.

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59
Q

LL - Constructive eviction

A

LL renders property uninhabitable + T vacates within reasonable time. T may stop rent and terminate lease. 3p interference is constructive eviction if LL knew or should have known about it

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60
Q

LL - Actual eviction

A

T physically excluded from entire premises by LL or holdover T may stop rent.

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61
Q

LL - Partial (actual/constructive) eviction

A

Actual/constructive Eviction. T may abate rent to reasonable rental value of partial portion.

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62
Q

LL - Duty to repair or maintain premises

A

LL generally has no express duty to repair or maintain premesis. If LL assumes duty to peform mnor repairs or repair damages caused by T, and is negligent, LL may be liable.

Latent defects: If LL leases knowing about defects not readily apparant, may be liable in tort to T or guests.

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63
Q

LL - Breach of implied warranty of habitability

A

Residential only. to make premises reasonably suitable for human dwelling. CL - N/A

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64
Q

LL - Fixtures

A

Chattel (personal property) affixed to land that is considered part of the realty. T must remove fixtures by end of lease term (or within reasonable time after indefinite tenancy). T must repair any damage caused by removal.

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65
Q

LL - Fixtures – Trespasser

A

has no right to take back what he didn’t have right to affix in first place

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66
Q

Transfer of Leasehold Interest

A

T has privity of K and contractual obligations to LL if retains, then eviction.

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67
Q

LL - Implied warranty of habitability

A

Residential only. to make premises reasonably suitable for human dwelling. CL - N/A

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68
Q

LL - Breach

A

T may self-help: terminate lease; abate rent to fair value, repair and offset future rent; seek damages

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69
Q

Assignment

A

T transfers entire remaining lease term. T is in privity of estate with LL; covenants can be enforced against assignee (T2). If T2 fails to pay rent, T is liable.

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70
Q

Sublease

A

T transfers part of remaining lease term. T is not in privity of estate with LL; covenants not enforceable against sublessee. LL can sue only T, e.g., for rent (absent agreement). LL can evict T.

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71
Q

Restrictions on assignment and sublease

A

Lease may prohibit assignment or sublease only if reasonable. LL must explicitly state if intent to require consent for future assignments by T.

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72
Q

Zoning

A

Gov’t usually required to continue to protect health, safety, welfare, or morals of citizens (police power), but this zoning power is limited by the due process clause, the equal protection clause, and the takings clause.

73
Q

Zoning - Ordinance

A

Specifically, zoning ordinances are generally valid as long as reasonably related to public welfare, not too restrictive, and non-discriminatory as to race or a particular parcel.

74
Q

Zoning - Variance

A

Gov’t permission to depart (or vary) from the literal restrictions of a zoning ordinance as an exception to the ordinance, sought as a permit based on one of two bases, an area variance or a use variance.

75
Q

Variance - Area variance

A

An exception that allows a building to exist in dimensions that slightly violate zoning ordinance requirements.

76
Q

Variance - Use variance

A

An exception that allows the operation of a structure for a purpose not permitted by the ordinance.

77
Q

Variance - Applicant must show

A

(1) undue hardship if no grant for the variance, (2) that the variance would not harm the community (3) there is no fault in seeking the request (not a bad actor).

78
Q

Nonconforming Use

A

A pre-existing use of the land that now does not conform to ordinance at time of enacting. Such a use already in effect cannot be eliminated unless it causes harm to the community; just compensation is paid.

79
Q

Amortization

A

Payments over time may be provided to landowner to gradually eliminate nonconforming use.

80
Q

Special Use Permit

A

A permit required even if zoning is proper for the intended use (e.g., hospitals, funeral homes).

81
Q

Exaction

A

Gov’t may seek payment for permission to build (e.g., seek exaction payment from developer if gov’t has to install new traffic lights around new housing development), only if exaction is reasonably related to impact of the development.

82
Q

Takings Clause

A

If zoning reduces property value, gov’t must pay damages to owner. See Con Law Majesties.

83
Q

Conflict of Laws

A

Principles to determine whether a court of forum jx will apply its laws or those of another interested jx.

84
Q

Conflict of Laws - Situs rule

A

For real property (immovables), law of the situs (state where property is situated) governs its disposition.

85
Q

Conflict of Laws - If applied, then

A

The forum (possibly foreign) jx’s whole law; the law ultimately used may be from anywhere if situs rule is used.

86
Q

Non-Possessory Interests

A

Rights in land of another.

87
Q

Easement

A

A non-possessory property interest in another’s right to use another’s land.

88
Q

Easement - Easement appurtenant

A

Interest in use of land of another (servient estate) that attaches to and passes automatically with dominant land (dominant estate).

89
Q

Easement - Burden of easement

A

Passes automatically with servient land, unless new owner is bona fide purchaser without notice of easement.

90
Q

Easement - Holder of easement

A

May reasonably inspect, maintain (duty to make repairs), and improve the easement.

91
Q

Easement - Easement in gross

A

Personal to the holder, attaches to the servient land (only servient land; does not attach to land).

92
Q

Easement - Transferable

A

If easement serves commercial purpose (billboard). Not transferable if for personal enjoyment (swim).

93
Q

Easement - Creation

A

An easement may be created by express grant (PINE): 1) Estoppel (oral misrepresentation, detrimental reliance on the servient’s permission to use land).

94
Q

Easement - Easement by prescription (AP)

A

Actual (no exclusivity requirement), open and notorious, adverse, continuous use for statutory period. Public may gain easement in private land via public use.

95
Q

Easement - Easement by implication

A

Division of a single tract, where open and continuous use of servient part exists prior to division, which is reasonably necessary to enjoy dominant part, and parties intend to continue use after division.

96
Q

Easement - Easement by necessity

A

Division of portion of land (e.g., by selling) + absolute necessity of access created by division (e.g., public road or utility line). Owner of servient portion may choose location if reasonably convenient.

97
Q

Easement - Express easement by grant

A

An interest in writing signed by grantor. A grant of easement must comply with deed formalities (see III.1). Presumed to be of perpetual duration unless grant specifies otherwise.

98
Q

Termination

A

An easement may be terminated by (END CRAMPS):

99
Q

Termination - Estoppel

A

Servient owner justifiably relies on easement owner’s conduct or assurance that easement will no longer be enforced + materially changes position in reliance.

100
Q

Termination - Necessity

A

Of course for easement by necessity.

101
Q

Termination - Destruction

A

Of a structure on servient land involuntarily (willful destruction does not extinguish easement).

102
Q

Termination - Condemnation

A

Taking by eminent domain terminates all easements.

103
Q

Termination - Release

A

Writing deed of release from easement holder to servient landowner.

104
Q

Termination - Abandonment

A

Affirmative act or words showing intent for permanent non-use (building makes use impossible).

105
Q

Termination - Merger

A

Title of dominant and servient estates owned by the same person as the same type of estate.

106
Q

Termination - Prescription

A

Easement holder fails to use servient land for statutory period (AP).

107
Q

Profits

A

Right to enter and remove resources from land of another, created and terminated in same ways as easements.

108
Q

License

A

Permission to use land; large area or revocable unless authority under public license.

109
Q

Covenant (IC) - Burden

A

Promissory servitude. Modern: May be transferable if commercial, and may be subdivided if quantifiable.

110
Q

Covenant (IC) - Requirements

A

To run with land: Intent, notice, horizontal privity, vertical privity, touch, and concern land. Notice can be oral or implied. Intent for the benefit to run: At the time the covenant was entered, original parties intended the benefit to run. Horizontal privity: Relationship between covenantor and covenantee. Vertical privity: Legal relationship between original party to covenant and successor. Touch and concern: Benefits the land.

111
Q

Equitable Servitudes

A

An equitable servitude requires: 1) notice, intent, and touch/concern land for the burden to run. 2) notice, intent, and touch/concern land for the benefit to run.

112
Q

Real Covenant - Runs with the land

A

A real covenant “runs with the land,” meaning a subsequent owner may enforce or be burdened by the covenant.

113
Q

Real Covenant - Burden to run

A

For burden to run with the land and bind successor of burdened estate requires writing, intent, notice of covenant by BFP of land (actual, inquiry, or constructive/record notice), horizontal privity, vertical privity, and touch & concern.

114
Q

Real Covenant - Benefit to run

A

For benefit to run to successor of benefiting estate and enforce the covenant require writing, intent, vertical privity (benefit runs to assignees of original or any lesser estate; any successor may enforce benefit), touch & concern.

115
Q

Equitable Servitude

A

If holder seeks injunction: Type of covenant where successors may be enjoined in equity (not damages).

116
Q

Equitable Servitude - Burden to run

A

For burden to run requires writing, intent, notice, touch & concern.

117
Q

Equitable Servitude - Benefit to run

A

For benefit to run requires writing, intent, touch & concern.

118
Q

Equitable Servitude - Exception to writing

A

Implied reciprocal servitude: Negative restrictions part of a common scheme or plan (typically subdivisions) can be enforced even if not in the deed, if some other deeds have it and there was notice.

119
Q

Equitable Servitude - Defenses

A

Changed neighborhood (change is so significant that enforcement would be inequitable), unclean hands (party seeking enforcement is violating similar restriction on own land), acquiescence to violation by benefited party, estoppel (benefited party acted such that reasonable person would believe covenant was abandoned); laches (benefited party didn’t sue within reasonable time).

120
Q

Termination

A

Same ways as both a real covenant and an equitable servitude. Analysis depends on remedy sought.

121
Q

Lateral Support

A

Absolute right to support from side of land. If in natural state: Adjacent landowner A is strictly liable for damage if excavation causes land to subside. If improved land (e.g., buildings): Adjacent A is strictly liable for excavation if land would have collapsed in natural state. Otherwise, liable for damage if A’s excavation was negligent.

122
Q

Subjacent Support

A

Absolute right to underground support of natural land and structures pre-existing when subjacent estate was created. Underground occupant of land (e.g., mining co.) is strictly liable for damage to structures. If surface structures built after subjacent structures, subjacent owner is liable only if negligent.

123
Q

Private Nuisance

A

Substantial and unreasonable interference w/ use and enjoyment of land, not necessarily intentional.

124
Q

Trespass

A

Intentional and unprivileged physical intrusion of exclusive possession of land.

125
Q

Light

A

No right to have sunlight continue to reach landowner’s building. Note: A misuse to block access to sunlight.

126
Q

Water Rights

A
127
Q

Water Rights - Navigable watercourses

A

(e.g., rivers, lakes, streams) are governed by either of…

128
Q

Water Rights - Riparian doctrine

A

Owners of land that borders watercourses (riparian owners) have rights to use water for domestic purpose based on…

129
Q

Riparian doctrine - Reasonable use

A

(majority theory): All lands with access to navigable water have reasonable access to make use of the stream as long as use does not unreasonably interfere with rights of other riparian land owners.

130
Q

Riparian doctrine - Natural flow

A

(more restrictive minority theory): Riparian owners may be enjoined upon use of stream if it substantially or materially reduces water quantity or quality for another owner (e.g., downstream owner).

131
Q

Water Rights - Prior appropriation doctrine

A

Owner who first makes beneficial use of watercourse has high right to continue to use.

132
Q

Water Rights - Surface water

A

(passing over land and not a channel, e.g., rainfall) within boundaries may be used for any purpose. Liability for redirecting and changing its natural flow depends on which theory applies:

133
Q

Surface water - Natural flow theory

A

Landowner cannot alter the rate or manner of natural drainage of surface waters where such actions would injure others above or below him. Most states allow “reasonable changes.”

134
Q

Surface water - Common enemy theory

A

Owner may keep water from coming onto land, if no unnecessary damage to others’ lands.

135
Q

Surface water - Reasonable user theory

A

Balance utility of use against gravity of harm.

136
Q

Surface water - Impounding water

A

An owner may capture and use surface water on or off his land, only if no malice.

137
Q

Land sale process

A

Contract to buy/sell land → escrow period (transfer funds) → closing (deed transfer) → conveyance.

138
Q

Land sale contracts (LSK)

A

Precede most transfers of land. Writing is required per SOF, unless part performance or estoppel. Must be signed by party enforcement is sought against, and describe land and consideration to be paid.

139
Q

Doctrine of equitable conversion

A

(during escrow by agreement and delivery of deed): When LSK is formed…

140
Q

Doctrine of equitable conversion - Equitable title passes

A

to buyer: Buyer owns real property and must pay K price by closing date. Estate of decedent seller or buyer is entitled to specific performance (heirs must purchase or sale and convey at closing).

141
Q

Doctrine of equitable conversion - Legal title remains

A

w/ seller (and his heirs) until closing. Seller has personal property interest in proceeds of purchase price.

142
Q

Doctrine of equitable conversion - Risk of loss

A

Follows equitable title. If property destroyed before closing w/ risk of loss, buyer bears risk. But seller must credit any received insurance proceeds to purchase price.

143
Q

Doctrine of equitable conversion - Relation back

A

Buyer’s title relates back to time of deposit in escrow if justice requires (e.g., incompetent seller).

144
Q

Uniform Vendor and Purchaser Risk Act (UVPRA)

A

Minority view, seller retains risk of loss until transfer of legal title or buyer takes possession.

145
Q

Marketable Title

A

Needed by closing date (delivery of deed). All LSKs include an implied covenant of marketability, to convey marketable title that is reasonably free from doubt and defects.

146
Q

Marketable Title - Defects

A

Chain of title (AP, unvested future interest), encumbrances (mortgages, liens, restrictive covenants, easements, significant encroachments), existing zoning violation (not restriction).

147
Q

Marketable Title - Easement

A

Must be beneficial, visible, or known to buyer; does not impair marketability.

148
Q

Marketable Title - Failure to provide

A

Failure to provide marketable title is a waivable buyer’s defense against LSK enforcement. Buyer must notify seller and give reasonable time to cure defects. Unmarketable at time of closing, seller in breach; buyer’s remedies include rescission, damages, specific performance with abatement (reduced purchase price), and quiet title suit.

149
Q

Marketable Title - Seller’s liability

A

Seller’s liability on implied covenant ends if buyer fails to notify and closing occurs.

150
Q

LSKs - New Construction

A

LSKs have no warranties of quality or fitness (reasonable workmanlike quality), except for sale of new or remodeled houses by a builder. Seller of existing buildings is still liable for known defects.

151
Q

Merger at Closing

A

LSK merges into deed at closing; once merged, buyer can sue on breach of warranty, not on LSK.

152
Q

General Warranty Deed

A

Seller warrants that no title defects were created by himself and all prior titleholders.

153
Q

General Warranty Deed - Includes 6 Covenants

A

Present covenants (do not run w/ land, breached at conveyance, only immediate grantee can enforce): covenant of seisin (promise that he owns title and possesses estate conveyed), covenant of right to convey (grantor had right as valid owner), covenant against encumbrances (no easements, covenants, unpaid mortgages or liens). Future covenants (run w/ land, any future grantee can enforce): covenant for quiet enjoyment (promise that grantee won’t be disturbed by lawful claims of title), covenant of warranty (promise to defend vs. reasonable claims of title & compensate for any losses from superior claims), covenant for further assurances (promise to take reasonable steps to perfect defects of title).

154
Q

Special Warranty Deed

A

Seller warrants that no title defects have occurred during own ownership.

155
Q

Quitclaim Deed

A

Seller makes no warranties and conveys whatever interest he has (does not affect implied covenant).

156
Q

Valid Conveyance by Deed

A

Requires formalities—writing signed by grantor, reasonably identifies parties and land.

157
Q

Deed

A

Grantee name may be blank (deed valid when filled). If land description blank, void unless grantee’s authority to fill.

158
Q

Valid Delivery of Deed

A

Intent: manual delivery, notarization and recordation, parol evidence (except to show conditional delivery), etc.

159
Q

Valid Delivery of Deed - Cancellation

A

Or destruction of deed has no effect on title, will not return ownership until new deed is executed.

160
Q

Valid Delivery of Deed - Acceptance

A

Is presumed if the conveyance is beneficial to grantee. A deed to a deceased person is void.

161
Q

Valid Delivery of Deed - Relation Back

A

Death or incapacity of grantor of deed in escrow → delivery relates back to time of deposit if justice requires (e.g., incompetent seller). By buyer/seller, their representative over 18 with power of attorney.

162
Q

Recording Statutes

A

Protect BFPs from secret interests if grantor conveyed a property interest more than once.

163
Q

Recording Statutes - Types

A

Race (first to record wins), notice (subsequent BFP wins), race-notice (subsequent BFP to record first wins).

164
Q

Recording Statutes - Bona Fide Purchaser (BFP)

A

One who paid monetary value in good faith (not a donee) without actual (subjective, from any source), constructive (recorded in chain of title), or inquiry (some fact that would prompt reasonable person to further investigate) notice of prior conveyance (e.g., deed, mortgage, lien) at the time of conveyance.

165
Q

Recording Statutes - Shelter Rule

A

Grantee (and donee) who takes from a BFP will prevail against an interest that the grantor BFP would have prevailed against, even if the grantee had actual notice of an unrecorded conveyance.

166
Q

Mortgage

A

Interest designed to secure mortgagor (borrower) performance of obligation of debt repayment.

167
Q

Mortgage - Debtor (mortgagor) remedies

A
168
Q

Equitable Right of Redemption

A

Mortgagor may pay off debt or bring loan current at any time prior to foreclosure sale. This right cannot be waived in the mortgage.

169
Q

Statutory Right of Redemption

A

Some jx allow mortgagor to redeem property w/in a fixed period after foreclosure sale.

170
Q

Exoneration

A

Original mortgagor can compel mortgagee to proceed first against primarily liable person.

171
Q

Mortgage - Creditor (mortgagee) remedies

A
172
Q

Foreclosure by Sale

A

When a mortgagor defaults on his debt, mortgagee (lender) can foreclose on the mortgage and sell the property to satisfy the debt at least in part.

173
Q

Foreclosure by Sale - Before Foreclosure

A

Mortgagee may take possession of property or receive rents, depending on theory of title.

174
Q

Foreclosure by Sale - Title Theory (majority MBE)

A

Mortgagee only gets security interest in property until foreclosure. Title Theory: Mortgagee gets title until mortgage is satisfied or foreclosed, is entitled to possession of property.

175
Q

Foreclosure by Sale - Priority

A

Sale proceeds paid in order: (1) expenses of sale, (2) loan principal & interest, (3) junior interests in order of priority (by time of recording, or recording statute), then (4) mortgagor, if any left. Mortgagee or party who has “assumed” mortgage may be personally liable for unpaid amounts (via deficiency judgment).

176
Q

Foreclosure by Sale - Purchase Money Mortgage (PMM)

A

Loan enabling acquisition of the property or improvements, always has priority over prior non-PMMs (subsequent mortgagees may defeat PMM by recording act).

177
Q

Foreclosure by Sale - Buyer of Foreclosed Property

A

Takes title as it existed when mortgage was placed in the land, subject to senior interests (e.g., original mortgage(s)), but foreclosure destroys junior interests. Ex: Homeowner owes debt on PMM, 2nd mortgage taken, 2nd creditor forecloses. Buyer takes subject to PMM. LL lien no longer on land; HO still owes debt on PMM.

178
Q

Foreclosure by Sale - Deficiency Judgment

A

Mortgagee retains personal cause of action against any party liable (a grantee who “assumed” mortgage and/or an original mortgagor). Foreclosing party subject to who is not mortgagor—if amount realized is “subject to” note relief as mortgagee can only look to the land to satisfy the debt.

MEE (10 decks)

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