PROPERTY Flashcards
Joint Tenancy
each party owns half with right of survivorship
a. 2 or more people
b. Undivided 50% interest of whole
c. When 1 dies, the other gets it immediately
d. Each tenant may covey (sale, gift, etc.) their share to whomever whenever they choose, BUT this will sever JT into TIC
Tenancy in Common
each party owns half with NO right of survivorship
a. 2 or more people
b. Undivided 50% interest of whole, but NO RIGHT OF SURVIVORSHIP
c. When 1 dies, their 50% goes to their heirs
Tenancy by Entirety
Married Couple have Right of Survivorship
a. Legally married
b. 1 spouse may not convey without the others consent
Real Estate Contract
a. Must be in writing – because statute of frauds
b. Must include parties, price, terms, etc. (contract principles)
c. Execution transfers EQUITABLE TITLE via EQUITABLE CONVERSION risk of loss shifts to the buyer
d. Marketable title implied in contract = title free of liens or encumbrances
i. Real estate contract does NOT transfer legal title
ii. Confirms intent to transfer title
Deed Elements
i. Must be delivery of deed by seller – shows intent to convey
ii. Acceptance is presumed by buyer – unless the facts say otherwise
iii. Must include legal description of property
- Where the property is located so a reasonable person could find it
- “metes and bounds” description aka basic GPS location
iv. Identifiable grantees
v. Merger of real estate contract
- Contents from contract are incorporated into deed
- Have to sue on the deed if you find there’s been a breach
vi. Execution of deed conveys legal title (ownership)
- Deed must be in writing
General Warranty Deed
i. Conveys clean title, promising all is okay forever
ii. Also guaranteeing that Grantor went back and checked history of land and title is okay
iii. 6 warranties apply – don’t have anything to do with physical quality
General Warranty Deed Warranties
Present Warranties (if these are breached, they’re breached on day of closing)
1. I am the legal owner
2. Nobody else owns the property
3. I have the legal right to convey
Future Warranties:
1. No one else will come make a claim on the title
2. If someone does, I’ll defend
3. I’ll pay to clean it up / handle it
Special Warranty Deed
Conveys clean title; promises all is okay while current owner lived there
Quitclaim Deed
Conveys only what title seller has, no promises / no warranties
- Essentially: I give you whatever title I have
Mortgages & Promissory Note
Promissory Note: promise to pay + interest
Mortgage: if you can’t pay $ back, Lender has right to foreclose
promissory note & mortgage go together
Purchase Money
Money borrowed goes to buy the house, ALWAYS HAS PRIORITY
- Loan to actually purchase land
Assumable Mortgage
New owner becomes personally liable on the note
- NEVER ASSUME THAT NOTE WAS ASSUMED
- Buyer assumed mortgage / payments / all rights & obligations
- If you don’t pay, bank can go after seller / OG party, unless there was a novation
Subject to Mortgage
Original owner remains liable on the note
- DEFAULT
- Don’t owe any of the payments, but bank has the right to foreclose
Lien Theory Jurisdiction
Bank has a lien on property, resident has LEGAL title
- JT + Mortgage + Lien theory = JT
Title Theory Jurisdiction
Bank has legal title, resident has an equitable interest, when they pay off the Mortgage, they receive title
- Cannot sell property
- Bank holds deed and resident gets deed back when mortgage is paid off
- JT + Mortgage + Title theory = TIC
Redemption
Usually when you’re behind on your mortgage & want to prevent foreclosure (aka Redeem) – right to pay off what you owe & reinstate mortgage
Equitable Redemption
period of time from Notice of Foreclosure until sale that residents can pay off debt and keep property
- this right can never be waived
Statutory Redemption
period of time from sale until whatever statute provides that residents can still keep property
- After sale
- Only be statute
- Depends on jurisdiction
Race
first person to courthouse who records deed, wins!
Notice
Last BFP with NO NOTICE, wins!
- Aka pure notice
Recording a deed = notice = no one after can claim to have no notice
BFP (Bona Fide Purchaser)
Someone paid value for the land and NO notice
- BFP = Mortgagees (banks)
- NOT BFPs = gifts, inheritances, adverse possession, lien holders (creditors like credit cards
Race-Notice
first BFP who records, wins!
- Paid $ + had no notice + recorded
Easements
one owner lets another do something on their land
Once an easement is created, it will be legally enforceable by all future grantees, unless legally terminated
Express Easement
easement in writing
Easement by Necessity
Have the right to enter land because it’s necessary because otherwise you’re landlocked
i.e. need access to public road
- terminated once no longer necessary
Easement by Implication
implied by prior use
Prescription Easement
using right of way for statutory period of time and have acquired legal right to use land
Terminating an Easement
Abandonment:
1. Stop exercising the right (non-use alone is not enough); and
2. Express an intent not to return
Merger: the 2 properties are now owned by the same person
Covenants
promise between 2 owners to do or not to do something
- can run with the land – irrespective of the people aka forever – because it “touches & concerns” the land
Look for
1. Intent
2. Touch and concern the land
3. Notice
4. Writing
5. Privity
- Must be in writing
- Remedy = legal damages ($)
Restrictive Covenant
promise not to do something
if covenant breached:
sue for damages
- can also seek an injection = equitable servitude
Equitable Servitude
restriction on use of lands found in subdivision (common plan or scheme), as long as ALL lots have same restriction, it is enforceable
- Aka Implied Reciprocal Servitude or Negative Servitude
- Enforceable against all future Grantees
- Equitable remedies = INJUNCTION
License
permission to enter land of another, but revocable at will by grantor
Profit
You have the right to take something off the land of another
- Can extract something from ground (either under or on top)
- Usually someone is making a profit
Fee Simple Absolute
owns 100% for all time
Life Estate
a. Owns 100% for life, FI = Remainder (contingent – vested)
b. Contingent = may get it if a contingency occurs “then to C if…”
c. Vested = going to get it for sure
d. A to B for B’s life. At B’s death goes back to A. A has a reversion
e. A to B then to C. C has a remainder
Fee Simple Determinable
a. “so long as.”
b. FI = Possibility of Reverter. Interest automatically reverts back
c. “A to B so long as used for …” if stopped using for that, goes back to A. therefore, A has a “possibility of Reverter.”
d. Reverter is automatic.
Fee Simple Subject to Condition Subsequent
- “but if” = Right of Re-Entry – not automatic.
- If this event occurs in the future have a right of re-entry
Rule Against Perpetuity
If either Determinable or Subject to Condition Subsequent, and there is a subsequent grantee, then RAP applies and that conveyance is void.
- A to B, for life, then to C.
- If A to B is fee simple determinable or subject to condition subsequent, then the “then to C” conveyance would be void.
- A & B’s interests remain valid
Landlord Duties
a. Warranty of Habitability: make it livable – any violation of the Health & Safety Code is a breach of this warranty
b. Landlord has duty to deliver actual property
Types of Tenancies
years, month to month, at will, sufferance
Tenant Duties
a. Duty to pay rent – always unless LL breaches warranty of habitability
b. Duty of No Waste – cannot damage property, which includes allowing damage to occur or actually damaging)
- Have a duty to mitigate damages and notify LL
c. Sublease – Original tenant remains primarily liable
- Portion of lease term (ex: 2 out of 12 months)
- No “privity” with sublessee
d. Assignment – New tenant becomes primarily liable
- Tenant gives away rest & remainder of lease
- Can go after original tenant if there’s a breach, unless a novation was executed
- In privity with new tenant
Fixtures
chattel (property) that by removing them, you would damage property
a. Default fixtures: things in inherent structure
b. Becomes so connected to the property, that removing it would cause damage
NEVER INFER DAMAGE TO PROPERTY
