Property Flashcards
Adverse Possession
One who wrongfully enters prop excludes gov’t owned land
Req Adverse Possession
Continuous
Open and Notorious
Hostile
Exclusive
Continuous AP
For statutory period (CL 20 yrs)
Seasonal or infrequent if
Consistent w/ type of property
Open & Notorious AP
Used in manner such that
Reasonable true owner on notice
Seasonal sufficient if intended use
Hostile AP
W/ out true owner’s consent Ignores state of mind (Maj) Good Faith (Min) Hostile if thinks rightful owner Bad Faith (Min) Knows not his
Exclusive AP
Excludes owner and general public
Tacking AP
Can tack on predecessor’s time to
Satisfy statutory period if relationship
Such as transfer, contract, or deed
Disabilities AP
SOL stayed for true owner at time AP began
Infancy, insanity, prison at time AP began
Color of Title (SoF) AP
SoL ran and entered w/ belief owned
Acquires AP for whole prop if significant portion
Formation of Sale of Land K
Requires offer, acceptance, and consid
Statute of Frauds Sale of Land
Writing Signed by party to be charged Essential terms: Parties Description of property Price and payment info
Exceptions Statute of Frauds Sale of Land
Part Performance (need two): Payment Possession Improvements Detrimental Reliance (Estoppel): Reasonably relied upon k AND Would suffer detrimental hardship Admission Rescission: can be oral
Risk of Loss and Equitable Title
Buyer Liable unless
Deed states otherwise
Marketable Title
Implied covenant title
Free from unreasonable risk of litigation
Have until closing to cure
Time of Essence Sale of Land
No Unless k specifically states
Merger Sale of Land K
K merges w/ deed
Extinguish all rights/obligations
Under k and following only
Terms under deed
Types of Deeds
General warranty deed
Special warranty deed
Quitclaim deed
General warranty deed
Protects against all 6 warranties
For all defects
Special warranty deed
Protects against 6 warranties
For all defects caused by grantor
Quitclaim deed
No warranties and
Receives same as grantor held
Covenants to Deeds
Seisin Right to convey Against Encumbrances Quiet Enjoyment Warranty Further Assurances
Req of Deed
Identify Parties Signed by Grantor (SoF) Words of Transfer Sufficient description of property Delivery Acceptance
Delivery of Deed
Retained by grantor, presumed no transfer
Given to 3rd party, once given ownership retroactive
Given to grantee, presumed valid
Acceptance of Deed
Presumed with land
Implied Warranty of Fitness or Suitability
Defects in new construction
Used adequate materials and good
Workmanship in working on residence
Duty to Disclose Defects
Material physical defects:
Material if substantially affects value
Safety of occupants or desirability
Not readily observable
What Recording Acts Attach to
Deeds, mortgages, leases, options,
Judgment affecting title
Types of Recording Acts
Race
Notice
Race/Notice
CL Recording
First in time, first in right
Shelter Rule
Take as if subsequent purchaser
Estoppel by Deed
Transfers when not owned
Cannot repossess once owned
Mortgages
Security device used to secure payment of debt owed by party (mortgagor) to lender (Mortgagee)
Majority Lien Theory Mortgages
Borrower treated as owner
Lender holds lien
Minority Title Theory Mortgages
Lender treated as owner
Purchase Money Mortgage
Loan obtained for purpose of
Purchasing property
Future Advance Mortgage
Line of credit or second mortgage after
Property purchased
Deed of Trust
Delivers title to 3rd party (Tee)
Until note paid
Installment Land Contract
Seller retains title until pmt CL: if buyer breaches Seller keeps installments and land ML: some JDX must foreclose, or Redemption, or restitution
Absolute Deed
Transfer of title for loan
Prove by clear and convincing evidence
Conditional Sale and Repurchase
Sells to lender who leases back
W/ option to repurchase when paid
Transfer of Mortgage By mortgagor/borrower
Liability of mortgagor Remains liable Liability of transferee If assumes, personally liable Takes subject to, not personally liable Default
Due On Sale Clause
Lender demand full pmt on transfer
Transfer of Mortgage By mortgagee/lender
Mortgage follows note
Foreclosure
Forced sale of asset to pay debt when
Mortgagor in default
Types of Foreclosure
Judicial sale (by court) Power of sale (auction by mortgagee)
Equity of Redemption
Right of mortgagor to reclaim and
Prevent foreclosure by paying in full
Statutory Redemption
Deed in lieu of foreclosure
Convey property in exchange for release
Deficiency from Foreclosure
Responsible for remaining after foreclosure
Mortgage Priority
First in time
Exceptions of Mortgage Priority
Purchase money mortgage Recording act Subordination agreement Mortgage modifications: do not change priority unless sub burdens Future-advance mortgages After-acquired property
Easement
Right by one to make specific, limited
Use of land owned by another
Types of Easement
Appurtenant
In Gross
Affirmative
Negative
Express Easements
Grant
Reservation
Grant Express Easements
Created by parties in writing
Reservation Express Easements
Conveys land but
Reserves easement for him/herself
Implied Easements
By implication
By Necessity
Prescriptive
Easement by Estoppel
Easement By implication
Prior use
Continuous and apparent after severance
Reasonably necessary to dominant land
Easement By Necessity
Common ownership in past
Strict necessity at severance
Prescriptive Easement
AP minus exclusive
Easement by Estoppel
Permission by someone to use land
Continuous reasonable reliance
Permission is withdrawn and
Reliance was detrimental
Scope of Easement
Defined by first instance of its terms
Change in Scope:
Reasonableness standard
If exceeds, trespasser