Property Flashcards
“Touch and concern”
Involves the relationship between landowners at law- directly benefit the other landowners in the use and enjoyment of their land
What are the duties of an original tenant and that of an assignment of that
After an assignment, the original tenant is no longer in privity of estate with the landlord. However, a tenant may still be held liable on its original contractual obligations to the landlord on privity of contract grounds. In an assignment, the assigned stands in the shoes of the original tenant in a direct relationship with the landlord.
Is a sublesse personally liable to a landlord?
A sublessee is not personally liable to the landlord for rent or for the performance of any other covenant made by the ordinal lessee in the main lease (unless the covenants are expressly assumed) because the sublease does not hold the tenant’s full estate in the land (so no privity of estate).
Joint tenance
A joint tenancy carries the right of survivorship, thus when one joint tenant dies, the property is freed of her interest and the serving joint tenant holds the entire property.
What happens when a tenant fails to vacate the premises
When a tenant fails to vacate the premises after the termination of his right to possession, the landlord may: 1) treat the hold-over tenant as a trespasser and evict him; or 2) vindictive the tenant to a new periodic tenancy. At left in commercial leases, the new tenancy will be year to year if the original lease was for one year o more.
A general warranty deed
A general warranty deed gives the grantee six covenants of title: the right to seisin, the right to convey, a covenant against encumbrances, the covenant of quiet enjoyment, the covenant of further assurances, and a general warranty. Under the covenants of quiet enjoyment, warranty, and further assurances, the man promised that (i) the woman would not be disturbed in her possession of the tract; (ii) he would defend the woman’s title against lawful claims; and (iii) he would perform whatever acts are necessary to perfect the woman’s title.
Mistake/inconsistency of deed
When there is a mistake or inconsistency in the description of property in the deed, one of the rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed. Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there is a unilateral mistake if misrepresentation is involved. Here, the facts indicate that the seller and the buyer were bargaining for a specific physical location (“the western half of the parcel from the western boundary to the grove of apple trees”) and not for a specific number of acres.
How does a burden bind the successor of the promisor
For successors of the original promise and promisor to enforce an equitable servitude, both the benefit and burden of the servitude must run for the land. For the burden to run and thus bind the successor of the promisor: 1) the covenanting parties must have intended that the servitude be enforceable by and against assignees; 2) the covenant must touch and concern the land; and 3) the party to be bound must have had actual, constructive (record) or inquiry notice.
What does it take for a deed to be valid
To be valid a deed must be delivered, which means that the grantor must have taken some action (not necessarily a manual handling over of the deed) with the intent that it operates to pass title immediately. Recording a deed that has even acknowledged before a notary is such an action and is presumed to carry with it the require intent. Even wihtout the knowledge of the grantee, delivery to the recorder’s office will satisfy the delivery requirement. If the grants intends the recording of the documents to be the final act in vesting title to the grantee, then such recording constitutes delivery.
When can a deed be treated as an “equitable” mortgage
If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an “equitable” mortgage and the creditor will be required to foreclose it by judicial action like any mortgage. In determining whether an absolute deed is really a mortgage, the court considers the following factor: 1) the existence of a debt or promise of a payment by the deed’s grantor; 2) the grantee’s promise to return the land if the debt is paid; 3) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property; 4) the degree of the grantor’s financial distress, 6) the parties’ prior negotiations
Severance and Partition of Tenancy in Common
By voluntary agreement: An allowable and peaceful way to end the relationship
By judicial action called partition in kind: an action for physical division of the property, if in the best interests of all parties.
By judicial action called a forced sale: An action when, in the best interests of all parties, the land is sold and the sale proceeds are divided up proportionately.
Profit
Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game). When an owner grants the sole right to take a resource from her land, the grantee takes an exclusive profit and is solely entitled to the resources, even to the exclusion of the owner of the servient estate. By contrast, when a profit is nonexclusive, the owner of the servient estate may grant similar rights to others or take the resources herself. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding.
Quitclaim deed
A quitclaim deed transfers whatever right, title, or interest in the property the grantor has.
Title unmarketable due to present and future interests
Title may be unmarketable where the owners of the present and future interests attempt to convey a fee simple absolute title if the future interests are held by persons who are unborn or unascertainable.
Race-notice jurisdiction
“No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.”
A subsequent purchaser must have taken without notice of the earlier sale and must have been the first to record.
Subdivision deed
If a covenant in a subdivision deed is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan is found to have existed at the time she purchased her lot. In addition, a prior purchase can enforce a restriction in a subsequent deed from a common grantor under either a third-party beneciry or an implied reciprocal servitude theory. Under the implied reciprocal servitude theory, an implied reciprocal servitude attaches to the grantor’s retained land at the moment she deeds a lot with the distraction. Thus, all of the other landowners in the subdivision could potentially enforce the covenant as an equitable servitude against the person.
Abandonment of an easement?
An easement can be extinguished where the owner of the privilege demonstrates action an intention to permanently abandon the easement. Mere nonuse is not sufficient to terminate an easement, unless the nonuse is combined with other evidence of intent to abandon.
When can the landlord take
A tenant must remove annexed chattels before the termination of the tenancy or they become the property of the landlord.
Priorities of mortgages and what is a Purchase money mortgage
Generally, the priority of mortgages is chronological. A number of other factors, however, may affect priority. Where a server of property receives a mortgage as part of the purchase price, a PMS results. Purchase money mortgages may also raise when a third party lends money to the buyer for the purchase of property and takes a mortgage on the property in return. In general the seller’s purchase money mortgage will take priority over third-party purchase money mortgage. Purchase money mortgages, however, are subject to later liens by virtue of recording acts. In the case where a mortgage is modified by agreement between the parties, any increase in the debt resulting from the modification will be subject to a junior lien, even if the original mortgage itself had priority over the junior lien. In the same way, an optional (as opposed to an obligatory) advance that is made after the junior lien will have a lower priority than the junior lien.
Covenant runs with the land
When a covenant runs with the land, subsequent owners of the land may enforce or be burdened by the covenant. If all of the requirements for the burden to run are met, the successor in interest to the burdened estate will be bound by the arrangement as effectively as if he had himself expressly agreed to be bound. To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant
Remainder
A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding state.
Vested remianeder
A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent.
Vested remainder certain to take
A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to take.
Vested remainder subject to open
Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent.
