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Themis > Property > Flashcards

Property Flashcards

1
Q

What are the four unities required to create joint tenancy?

A
  • Possession
  • Interest
  • Time
  • Title
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2
Q

What happens if any of the unities are severed?

A

Reverts back to a tenancy in common

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3
Q

What are two types of executory interest?

A
  • Springing executory interest; divests to grantor

- Shifting executory interest; divests to grantee

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4
Q

What are the elements of constructive eviction?

A
  • Premises are unusable for their intended purposes
  • Tenant notifies landlord of the problem
  • The landlord does not correct the problem
  • The tenant vacates the premises after a reasonable amount of time has passed
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5
Q

What happens after a landlord assigns rights to a third party?

A

The tenant owes rent to the assignee landlord
The assigned landlord is obligated to the tenant to perform any burden imposed by a covenant that run with the land
The assignor landlord remains liable to the tenant for all covenants in the lease

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6
Q

What is a nonrecourse loan?

A

Loan secured by collateral, but for which the borrower is not personally liable. In the event of default, the lender can seize the collateral but nothing else.

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7
Q

What is the estoppel by deed doctrine?

A

A grantor who conveys a real property interest by warranty deed before actually owning it is estoppel from later denying the effectiveness of the deed.
When the grantor does acquire ownership, the after-acquired title is transferred automatically to the prior grantee

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8
Q

What are the effects of the anti-ademption statute?

A

The devisee of the seller-decedents real property is entitled to the sale proceeds

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9
Q

What happens when the seller of real property pursuant to a contract dies before the conveyance of the property?

A

The buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer

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10
Q

What is true of tenancy in the entirety?

A

There needs to be the four unities and the couple have to be married at the time the deed was executed

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11
Q

When must marketable title be delivered?

A

By the closing date, at which point the contract and deed merge and the deed controls

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12
Q

What is true of subjacent support rights?

A

The owner of the middle right is strictly liable for any failure to support the land and any buildings on it that existed before the rights were CREATED

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13
Q

What is the order of payment for money from foreclosure sales?

A
  • Costs associated with the foreclosure sale (including attorney’s fees)
  • Balance and interest of the mortgage obligation being foreclosed
  • Mortgage obligations owed to all junior interest holders
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14
Q

What is the assumption made by courts regarding closing dates?

A

Time is not of the essence
Party can sue for specific performance as long as the party is ready to perform within a reasonable time from the date set for performance
The breaching party may be liable for incidental losses

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15
Q

Who holds equitable title during the period between the execution of the contract and the closing and delivery of the deed?

A

The buyer
He is responsible for any damage to the property that happens during that period, unless there was damage was caused by intentional or negligent acts of the seller
The Uniform Vendor and Purchase Risk Act keeps the risk of loss with the seller (must have material part of property destroyed)

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16
Q

What happens once the deed takes effect?

A

The terms of the contract merge with the deed, and the deed controls

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17
Q

What is true of a lien theory state?

A

Mortgagee cannot take possession prior to foreclosure because lender has a lien until foreclosure is complete

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18
Q

What is true of a title theory state?

A

The lender has the right, as holder of the title, to possess the property at any time

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19
Q

What is true of an intermediate title theory state?

A

The mortgagor retains title until default, at which point the lender can take possession

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20
Q

What happens when the seller has casualty insurance?

A

The seller is generally required to give the buyer credit against the purchase price in the amount of the insurance proceeds when a casualty occurs

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21
Q

What occurs when there is partial condemnation of property?

A

The tenant must continue making rent payments
The tenant is entitled compensation for the portion of the property that was condemned or the time he was dispossessed from the leased property

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22
Q

What is true in a lien theory state?

A

The granting of mortgages by fewer than all the joint tenants does not sever the joint tenancy

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23
Q

What is true of a title theory of mortgages?

A

The granting of a mortgage by fewer than all of the joint tenants severs the joint tenancy and converts it into a tenancy in common

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24
Q

What happens when a portion of a joint tenancy is sold?

A

That portion becomes a tenancy in common with the remaining portions, which remain in joint tenancy

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25
Q

What is the majority rule on judicial liens imposed in an joint tenancy?

A

The joint tenancy is not severed
If the joint tenant against whose priest is imposed dies, the remaining joint tenants are entitled to that property interest by eight of survivorship

26
Q

Can a cotenants bind another cotenant to a boundary line agreement?

A

No

27
Q

What type of partition do courts prefer?

A

Partition in kind (court divides the jointly owned property into distinct physical portions), as opposed to partition by sale

28
Q

What happens if an assignee tenant reassigns the leasehold to another tenant?

A

Assignee tenant’s privity with the landlord ends; subsequent tenant is in privity with landlord

29
Q

Can the subleases enforce any covenants made by the landlord?

A

No. It can only enforce covenants made by the original lessee

30
Q

What happens when a lease prohibits the tenant from assigning or subleasing the leasehold?

A

Tenant can nevertheless assign or sublet

Landlord can terminate the lease for breach of one of its covenants and recover any damages

31
Q

What happens after a deed is delivered?

A

The terms of the contract merge with the deed and the deed controls
The purchaser is not able to enforce provisions (including implied covenant of marketable title) of the purchase contract

32
Q

What is the implied warranty of fitness or suitability?

A

The warranty of fitness is implied in a land sales contract for the purchase of the newly constructed residence

33
Q

What is true under the theory of mutuality of remedies?

A

The seller is also committed to seek specific performance to force the buyer to purchase the land

34
Q

What is a deed of trust?

A

The borrower delivers the title of real property to a third-party trustee as security for the payment of the note, with the condition that the trustee re-conveys the title to the borrower upon payment of the note

35
Q

What is a due-on-sales clause?

A

Upon the transfer of mortgages property, the lender has the option to demand immediate payment for the full amount of the outstanding obligations including interest

36
Q

What is the effect of transfer by the mortgagor?

A

Unless the mortgagee-lender agrees to release the mortgagor-borrower from the liability for the loan, the mortgagor-borrower remains personally liable for the loan obligation after the transfer of the mortgage property

37
Q

What is a due-on-encumbrance clause?

A

Gives the lender the right to accelerate a mortgage obligation upon the mortgagor’s obtaining a second mortgage or other encumbering the property

38
Q

What is the effect of the transferee-buyer assuming a mortgage obligation?

A

If the transferee assumes the mortgage obligation, the mortgagor-borrower becomes secondarily liable as a surety and the transferee becomes primarily liable
No writing requirement

39
Q

What happens if the transferee-buyer takes title “subject to” an existing mortgage obligation?

A

The transferee-buyer is not personally liable upon default; only the transferor-seller is liable

40
Q

What is the effect of transfer by the mortgagee?

A

Mortgagor-borrower is generally obligated to pay the holder of the note

41
Q

What is the doctrine of equity of redemption?

A

Allows the mortgagor to reclaim clear title to the property prior to a foreclosure sale by paying the full amount of the outstanding debt
May be exercised by mortgagor or anyone whose right to mortgage property stems from the mortgagor’s interest

42
Q

What is a statutory right of redemption?

A

The mortgagor has a right for a fixed period of time to compensate the party who purchased the property at the closure sale and reclaim the property

43
Q

What is marshaling of assets?

A

The holder of the senior mortgage maybe compelled to first foreclose on the properties for which only that holder possesses a mortgage in order to protect the security interest of the holder of the junior mortgage
If there are multiple junior interests property subject to the more recently created interest is subjective foreclosure prior to property subject to the more remotely created interests

44
Q

What is subrogation?

A

The person who pays off another person’s mortgage obligation may become the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment of the mortgagor

45
Q

What happens if there is a mortgage on a title?

A

If the amount of the mortgage is less than the selling price, at closing the seller can apply the proceeds from the sale of the property to pay off the balance of the mortgage and remove the encumbrance

46
Q

When can a buyer enforce provisions of the purchase contract (I.e. Implied covenant of marketable title)?

A

Before the closing when the contract has merged with the deed. After, the buyer can sue based on covenants attached to the deed (general, special, and quitclaim)

47
Q

What is true of enforcement of mortgages?

A

Enforcement of a mortgage is subject to defenses that can be raised with respect to the obligation for which the mortgage serves as security

48
Q

What is true of contributions to repairs?

A

They can only be collected against co-tenants or users after adequate notice and an opportunity to participate in repair decisions

49
Q

What is important under a motive statute?

A

Whether the subsequent purchaser, at the time of purchase, has knowledge of the prior conveyance
It does not require (unlike a race or race-notice statute) that the subsequent purchaser record the conveyance

50
Q

What is abatement?

A

Reduction or elimination of a devise is permitted when the assets of the estate are insufficient to pay all debts and satisfy all devises. A general devise is sacrificed in order to honor a specific devise

51
Q

Does the doctrine of anticipatory repudiation apply to lease of real property?

A

No. The landlord is only entitled to rental payments as they become due.

52
Q

Does RAP apply where the right of first refusal is given in conjunction with a lease?

A

No.

53
Q

May mortgagee elect to pursue its right against the mortgagor’s personal obligation without first seeking to foreclose on the mortgaged property?

A

Yes.

54
Q

What is the test of whether title is marketable?

A

Whether the title must be free of an unreasonable risk of litigation at the time of closing

55
Q

Who is not protected by recording statutes?

A

Someone who has not paid value for the property: judgment liens and donees

56
Q

What is true of the “transferee buyer” takes title subject to an existing mortgage?

A

He is not personally liable upon default, but the lender is able to enforce its security interest through foreclosure. This is the default arrangement if the deed was silent

57
Q

Is equitable restitution available against a BFP?

A

No

58
Q

What does a lender’s release of mortgage do?

A

It discharges the mortgagor’s personal liability

59
Q

When is a variance granted?

A

If an owner can demonstrate that a particular zoning ordinance exacts a unique hardship on him, then he may be exempt from a zoning ordinance as long as the variance is not contrary to the public welfare

60
Q

When does a merger not terminate an easement?

A

When the owner acquires less than fee title to the underlying estate

61
Q

What are the three types of waste?

A

Affirmative
Permissive
Ameliorative

Themis (12 decks)

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