Property Flashcards
1
Q
**Must the recission of a land contract be in writing/signed?
A
No
2
Q
warranty deed
A
protects against TITLE deficiencies (MEL - mortgages, liens, encumbrances)
3
Q
**How do you terminate a granted easement (appurtenant), where right of use attaches to the land?
A
via release (written, by beneficiary) or abandonment (physical action showing intent to abandon further use)
4
Q
**What happens when the benefitted land (lucky guy that has a granted easement to use the servient estate) is transferred?
A
The granted easement runs with the beneficiary’s land (dominant estate)
5
Q
**If the recording statute “has no timing provisions,” then which type is it?
A
Notice statute, which means if second purchaser is a bona fide purchaser without notice, then #2 wins
6
Q
**After foreclosure, who gets priority: a right preserved in the original deed, or the purchase money mortgagor?
A
right preserved in the original deed (eg “owner can take back home for 1K if buyer uses land for commercial purposes”)
7
Q
**covenant of further assurances
A
grantor will do whatever is necessary to remove a defect associated with TITLE, such as an encumbrance, if it arises, and if the problem is not fixed, damages will be awarded.
8
Q
A has life estate, B has remainder. During A’s life estate, who has to pay taxes and interest?
A
A (life estate) must make repairs and pay real estate taxes and mortgage interest (the remainder men pay the principal)
9
Q
in installment contract of real estate sale, by when does Seller need to delivery marketable title? At beginning of installment contracts, or after they’re paid?
A
by time of closing, which could be years :O
10
Q
**to get new buyer to assume existing mortgage, does the deed conveying that assumption need to be signed?
A
no signature required, just acceptance
11
Q
**After being recorded for first time, does expressly granted easement need to be re-identified in deed accompanying future conveyances?
A
No, the recording provides notice
12
Q
**how does consideration not being paid (whether recited in the deed or not) fit into the validity of conveying a deed?
A
consideration is irrelevant: only requirements to validly convey land are the deed’s execution and delivery.
so if deed was validly executed and delivered and it said “this conveyance was in consideration of $X,” but buyer ultimately didn’t pay, property is still the buyer’s
13
Q
can co-tenant A collect from B (both TIC) for property taxes paid by A?
A
A co-tenant can collect contribution from the other co-tenants for paying more than his portion of operating expenses, including property taxes
14
Q
**A and B own Greenacre via TIC. B leases out his interest. Can A collect on that rent?
A
Yes. A co-tenant must account to other co-tenants for rent received from third parties. Each tenant is entitled to an amount of the rents proportionate to his ownership interest (so A owns 50% of Greenacre, A can get 50% of B’s rental proceeds)
15
Q
**fee simple with a durational condition (“so long as”) is called what?
A
fee simple determinable
Duration -> Determinable
16
Q
what’s the name for an unreasonable restriction on receiver’s ability to transfer property?
A
restraint on alienation
the law favors the transfer of property (court will strike this out if unreasonable)
17
Q
**Redemption (ability to pay back fully to avoid losing home to foreclosure) must be done by when?
two options: (1) equitable right and (2) statutory right
A
EQUITABLE right applies until foreclosure
STATUTORY right (if jdx has one) = extension: applies within X period of time AFTER foreclosure
18
Q
RAP = by 21 years after the death of the validating lives (those mentioned?), we need to know what’ll happen.
A
If it’ll be known within the lifetime of the validating lives whether condition will occur, then no problem
19
Q
**equitable conversion re: property conveyance
if a seller dies after a contract has been formed but before it has been completed, the affected real property goes to who? must it still be sold?
A
taker of seller’s real property basically steps into decedent’s shoes
the affected real property will pass to the taker of the seller’s real property. Then at closing the property must be conveyed to the buyer, and proceeds from the sale pass to the taker
20
Q
Does an expressly granted easement transfer automatically when the land is transferred?
A
Yes
21
Q
Merger terminating easement =
A
person OWNS both properties (a life estate isn’t enough)
because once he owns both, no easement needed – he OWNS the whole land
22
Q
Deed to grantee who doesn’t exist yet is okay or void?
A
void (given to “corporation” that was supposed to be 2 guys but they ultimately didn’t create it)
23
Q
Sellers of real property are obligated to disclose problems that could affect the property’s value or desirability. typically, it’s illegal to fraudulently conceal major physical defects in the property.
Generally, are sellers responsible for disclosing only information within their personal knowledge?
A
yes, only have a duty to disclose known defects
24
Q
life estate tenant has duty not to commit voluntary waste, which includes what 3 things?
A
keep the property in repair, pay property taxes, and pay mortgage interest.
25
what 2 things are needed for land conveyance's validity?
execution of deed (D's signature) + delivery (intent)
26
Covenant of further assurances
Deals with TITLE, not latent defects
wouldn’t be in a quitclaim deed, which contains no covenants, and in which grantor is not liable for any post-closing problems
27
can right of re-entry automatically pass to heir?
yes
28
Is a co-tenant generally required to pay rent to the other co-tenants for the value of her OWN use of the property, even when the other co-tenants do not use the property?
no, because all have co-equal right of possession
29
Can a co-tenant collect contribution from the other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses (e.g., taxes or mortgage interest)
yes, though a co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property.
30
Is there a right to reimbursement from co tenants for repairs made to the property, even when those repairs are necessary?
no
31
When all joint tenants of real property execute a mortgage, may the mortgagee enforce the mortgage against all joint interests upon default?
yes
32
does anticipatory repudiation apply to leases (ie can you collect for future months)?
Maj: no
Landlord is only entitled to rental payments as they become due.
Since the chef has failed to pay the rent for the four months since she vacated the premises, she is currently liable for that amount.
33
does purchase money mortgage have priority over prior liens?
have priority over all earlier liens/non-purchase-money mortgages and liens whether or not recorded (state doesn’t mater)
34
Does obtaining a judgment and filing it in the county = recording it?
yes
35
**"without notice unless the same be recorded according to law"
(#2 has no notice and is a bona fide purchaser)
No "first" = notice statute = no one recorded, u win
(u auto win if #1 didn't record)
"first" = race-notice = u must record first to win (first = first place in race to record)
36
Does modifying a senior mortgage forfeit the mortgage’s priority over a junior mortgage?
no, except to the extent that the mortgage prejudices the junior mortgage.
Example: the senior mortgagee subordinates its interest only as to the modification (here, the additional $25,000 wedding loan), while the original mortgage remains superior.
37
Is an increase in the scope of an easement caused by use generated for the benefit of property *other than the dominant estate* (eg use road easement benefitting Factory 1 on Estate 1 for new 2nd factory on new 2nd plot of land) permitted?
no
38
**can K be rescinded if performance isn't given on closing day?
no (it's breach but that's not the proper remedy), UNLESS K says time's of the essence
39
tenant in leased mansion. tennis courts are condemned (eminent domain'd) by state. Must tenant still pay rent?
yes, though compensated for lost courts
40
**how can you terminate a covenant?
by abandonment if the parties to the covenant act in an affirmative way that shows a clear intent to relinquish the covenant right [both dismantle wall];
mere non-use or statements of intent without affirmative conduct will not constitute abandonment.
41
Does the execution and recording of a deed creates a rebuttable presumption that the deed is delivered/presently operative?
yes
42
must death escrow be out of your control to be valid?
yes (eg give to attorney but do NOT reserve right to take it back, even if u notified future recipient)
43
Is a seller being unaware of a defect enough to protect him?
yes (though an inspection isn't enough to say "Oh I inspected it once, didn't see it, so not known)
44
Does easement owner have a right/duty to make repairs for its purpose?
yes
45
May easement owner require owner of servient estate to contribute if they use it too?
yes
46
Equitable conversion doctrine
pending contract --[risk on S]-- enter/execute contract --[B]-- closing
seller retains legal title to real property during the pendency of the land-sales contract, and that equitable title passes to the buyer upon entering the contract
place the risk of loss during the time b/t the execution of K and the closing on the buyer, *regardless of whether the buyer takes possession of the property*
47
**Federal Housing Act applies to...
Applies to rental + sale
Applies to housing-related transactions like ads, financing, homeowner's insurance, zoning
48
When can a tenant remove a fixture that she attached to leased property?
(i) if the leased property can be and is restored to its former condition after the removal, and
(ii) the removal and restoration is made within a reasonable time.
Although a reasonable time for removal generally does not extend beyond the termination of the lease, it may do so when
(i) the termination is not due to a breach by the tenant, and
(ii) the date of termination is not foreseeable by the tenant sufficiently far enough in advance to permit removal before the termination of the lease
49
**General warranty deed protects buyer from defects in home's condition, title, or both?
The six covenants of title in every general warranty deed only protect the buyer from defects in *title*, NOT defects in the condition of the home
50
HOA review board must act ___ when reviewing an issue that's under it's control
(eg if rule says it has sole power to determine for any reason whether an aesthetic can be placed, then it has the power to do that, as long as it acts reasonably)
51
may right of re-entry be transferred by holder during her lifetime?
no
52
Is a cousin (TIC, owns 40%) entitled to the rents received by the sister (TIC, owns 60%) from the third party in proportion to his ownership interest (40%) in the farm?
yes
53
**Can cousin (40%) prevent sister from leasing the whole farm to a third party?
no, because she has full possessory rights as a TIC and is leasing it
54
**does the granting of a mortgage by fewer than all of the joint tenants sever the JT?
no
55
Dad gives son 1/3 interest and daughter 2/3 interest as "joint tenants with the right of survivorship." JT created?
no because unequal shares
56
tenant [Crunch] [is / is not] bound to honor any covenant in his lease that has been assigned by the landlord [Gym Facility Landlord] to a new landlord, if the covenant touches and concerns the land [even when landlord changes]
is
Here, the liability waiver touches and concerns the land because it has to do with clients using gym equipment in the gym facility.
57
Absent contrary language, is an implied covenant of marketable title (i.e., a title free from defects) part of a land sales contract, regardless of the type of deed created?
yes
58
until when is the seller required to deliver marketable title?
until CLOSING (not contracting)
Even if D didn't own the property when deal was made and P had made deposit!
P must WAIT until closing (or reasonably after if time is of the essence) to sue
59
**Is transferee/purchaser strictly liable for any damage that occurs to existing structures [so, before the transfer] on the land as a consequence of subsidence caused by the removal of the oil or minerals?
yes
60
**Is the owner of mineral rights liable for damage done to structures built on the surface of the land after the mineral rights were transferred, as long as they exercised reasonable care in removing the minerals?
no
61
nuisance
May be negligent, reckless, intentional, abnormally dangerous activity
Unreasonable + substantial --> unreasonable = injury outweighs utility
Public nuisance = unreasonably interferes with health, safety, property rights of community, sue if uniquely impacted
62
TITLE THEORY STATE: is legal title in the mortgagee (credit union) until mortgage has been fully paid?
yes (credit union technically can possess anytime but K terms typically say no)
title = legal title
63
LIEN THEORY STATE: can mortgagee [credit union] take possession prior to foreclosure?
no, bc the mortgagor (borrower) is considered to be the owner of the land until foreclosure (niceeee...lean wit it)
64
**does wild food pass down to new property owner?
yes, unless it's been harvested and cultivated (then it's personal property of harvester)
65
remember that deed takes effect immediately and thus beats a will
:O
son's acceptance is presumed at the moment that the owner delivered the deed to the neighbor since the transfer was beneficial to the son
66
**Seller dies after executing land-sale contract but before conveying. To who does the property and proceeds go to if the will said personal property goes to A but real property to B?
common law = property to buyer, proceeds to personal property person
anti-ademption statute = property to to real property guy then to buyer, so proceeds to real property guy
buyer can compel the executor of the seller’s estate to honor the contract and transfer the property to the buyer.
67
if a *fraud* concerning land is the subject matter of a dispute, then the site where the [fraud or land] happened determines which state's laws apply
where the fraud took place. but when it's solely a property issue, then it's where the land is situated
68
when a person "alters the instrument," they commit a forgery
that renders it an invalid deed -- subsequent purchaser not expected to discover the alteration , even if recorded
69
are courts reluctant to recognize an affirmative burden to pay money over an indefinite period of time (eg HOA requiring annual dues for indefinite period)?
yes
70
a remainder is contingent if...
there's a condition precedent that must be satisfied before the interest will vest in the remaindermen
71
does visiting the land less often than annually typically preclude adverse possession?
yes unless it's a place that's only to be used seasonally (continuous)
72
does occasional hunters on the property [during the time you're trying to adverse possess] preclude adverse possession?
yes (no exclusivity)
73
**3 year lease. In year 2, tenant leases to friend, who doesn't pay rent for a year.
Year 3, OG tenant takes over, paying nothing for final year.
Who can landlord go after for year 2 and year 3?
tenant only, for both years, because it was a *sublease* (and privity b/t landlord and friend)
74
**"to my neighbor, her heirs and assigns, so long as the premises are used for residential and farm purposes, then to my son and his heirs." What's the son's interest in the farm?
nothing, violates RAP because it could be waaaay more than a life+21yrs before we know whether it'll go to son
75
S sells B a home w/ warranty deed. then 3P sues B for quiet title. B wins, but wants S to pay for the suit's expenses. should S pay?
no. only would've had to pay if B lost (which would've proved that S had a title defect aka a lawful/reasonable title claim).
76
if a subdivision plan is recorded (and outlines restrictive covenant preventing mobile homes), and purchaser's deed of lot on the subdivision doesn't mention the covenant, is he still bound by it?
yes, because recorded = notice... + intent that it runs w/ the land + touches/concerns the land + privity of estate
77
**easement appurtenant
allows access to land (like a driving road) that's only accessible through a neighbor's land.
benefits the dominant estate and runs w/ the land, so transfers automatically when dominant estate is transferred
78
easement by implication
adverse possession easement (including easement by necessity), or implied from recorded subdivision plan
if express easement creates it, then no need for easement by implication
79
easement by necessity requires that the lands had been in ___
common ownership, and the necessity existed when the lands were severed
80
does an easement by prescription (like adverse possession) need to be exclusive (not used by others)?
no :O
81
adverse possession elements
ECHO-A
exclusive (cant share possession)
continuous (unbroken period of time, unless seasonal is okay)
hostile
open and notorious (can't be secret)
actual possession (trespasser must be physically present, treating as own)
82
is it considered waste if a life tenant changes the basic use of the land and that change will increase the land's value?
yes voluntary waste (affirmative act that "damages" the land)
83
in a COMMERCIAL lease, if the tenant has attached trade fixtures to the building (eg lighting), can tenant remove them before lease?
yes unless will cause substantial damage that cannot be restored
84
can a joint tenancy be severed by a will?
no, automatically goes to surviving JT
can only be severed by partition or by making an inter vivos conveyance of one's entire interest (sale/transfer)
85
how can tenant overcome lack of signed writing to show that landlord had orally promised to sell him land after 5 years of monthly payments?
by proving a part performance of an oral agreement [that contained a promise of land sale]. if not, court will assume the oral agt didnt exist, because no performance related to it / no signed writing
86
generally, is any restriction on the transfer of a legal interest in property valid or invalid?
invalid
| but options and rights of first refusal are valid if reasonable
87
do most states require that settlements be conducted by an attorney?
no, okay if agent only (though if agent does it, can't offer legal advice as if they were attorney)
non-attorney CANNOT answer legal questions because that'd be practicing law
88
in which two instances can a security deposit be retained?
1) failure to pay rent
| 2) damages to premise beyond normal wear and tear
89
**what can landlord do when premises are used for illegal purpose?
terminate the lease or seek injunctive relief
90
co-tenants have a right to contribution from each other for certain expenditures, like taxes, mortgage payments, and necessary repairs
logical because even though a co-tenant owns only part of the land, each of the expenditures must be paid in FULL (so everyone must contribute their share so the payments add up to 100%)
91
can a mortgage cause severance of joint tenancy?
yes, if it's a title theory state (no if lien title..lean wit it..keep JT).
Ttttitle --> becomes TIC
92
man and woman had JT of home. Title theory state. man takes out mortgage; woman doesn't. Man dies before paying off mortgage, son is heir. what does woman, man, and son own, and who's is subject to mortgage (or is none of it?)
half the woman (free of mortgage), half the son (mortgage)
Title -> JT becomes TIC due to mortgage
Man's interest is subject to mortgage, transferred to son subject to mortgage
woman's was never subject to mortgage
93
what're the main ways of creating an easement?
```
PIE (farm)
by
prescription
implication
express grant
```
94
easement appurtenant requires how many pieces of land?
appurtenant = AP = requires TWO pieces of land (dominant, which is benefited, and subservient)
95
*in case involving real property*, if there's a conflict re: which state's law should be applied to resolve the issue (eg a CONTRACT issue), court should apply the choice of law rules of where the K was signed, or where the property is?
property
96
does simply calling the restriction a servitude or covenant w/in the fact pattern automatically make it one?
no
97
**EQUITABLE SERVITUDE elements
1) INENT for the restriction to bind and be enforceable by subsequent grantees ('this agt shall bind all successor owners and they may enforce this covenant')
2) subsequent grantees had NOTICE (deed recorded)
3) restriction TOUCHES AND CONCERNS the land (eg restriction on type/number of buildings)
Privity of estate is NOT required; only for a covenant
98
can 2 men jointly get adverse possession on land? isn't that a violation of "exclusivity"?
2 men can because exclusivity = exclusive from true owner/public at large
99
where there's both a senior and junior mortgage, modifications to the senior mortgage that are ___ to the junior mortgage, such as raising the __ rate or __ amount, thus making it more burdensome (thus steroid-ing the odds that THAT mortgage will be unpayable first), will give the junior mortgage priority
detrimental, such as raising the interest rate or principal amount
100
grantor conveyed "to my daughter, her heirs and assigns, so long as the premises are used for residential purposes, then to her son and his heirs and assigns." What's the grantor's interest?
possibility of reverter
strike "then to her son and his heirs and assigns" because violates RAP - could be 1,000 years till that part happens
left with "to my daughter, her heirs, so long a premises re used for residential" -> grantor has possibility of reverter
101
**coveyance of land deed requires what?
ED
execution (signed by grantor) + delivery (intent to pass title) of deed
102
what happens if recipient of deed rejects it?
then it's rejected and there was NO EFFECTIVE ACCEPTANCE. otherwise, grantee's acceptance is generally assumed
103
**equitable estoppel
equitable estoppel -> estop! not equitable! -> not fair to F over person who detrimentally relied
detrimental reliance - one party induces another, through false language/conduct, to act to his determinant. prevents disadvantage to the injured party.
104
does selling a house w/ quitclaim deed to buyer mean that seller nevertheless must at least provide marketable title
no..quitclaim deed sells "as is" w/r/t to title lol. no marketable title necessary
105
inquiry notice
if someone else's possession and use of the land is open and notorious (or if an inspection would've showed you that someone else possess it), then subsequent grantee DOES have inquiry notice (and thus not protected by notice statute, which requires lack of notice)
106
what counts as "continuous" under adverse possession?
only requires the degree of occupancy and use that the AVERAGE OWNER would make of the property (adverse possessor using a plot to store waste but removing it 1 month a year, isn't enough to defeat continuous possession)
107
equitable conversion
after contract is signed re: land, risk of loss switches to buyer
it's only "equitable" that risk of loss "converts" to buyer once the contract is signed
108
although the lender's policy of title insurance ended when the loan was repaid, does an owner's policy of title insurance continue to protect the owner if the owner (here, the buyer) is ever successfully sued on a title covenant in a future conveyance?
yes
109
an HOA may impose restrictions on structures or landscaping only if authorized by __ or __
statute or the governing documents
110
title insurance policy
insures that a good record of title of the property exists as of the policy's date, and agrees to defend the record title if litigated
111
title insurance policy can be purchased by a property owner of the mortgage lender
does it protect only the person who owns the policy / only the lender?
an *owner's* policy protects only the person who owns the policy
But a *lender's* policy follows any assignment of the mortgage loan
112
**requirements for a real covenant to bind successors
PINT
privity
intent for the covenant to bind successors
notice to the person the covenant is being enforced against
covenant must touch and concern the land
covenant remedy = damages; equitable servitude = injunction
113
when a mortgagee (bank), which has the right to enter property to correct waste, utilizes their interest in the property by entering it and running it, is the mortgagee (bank) taking possession of the property? Is it in the position of an agent or owner when someone suffers a tort in the land while the mortgagee was fixing stuff?
owner because the bank was a mortgagee in possession (so: liable as owner)
114
**an easement by implication/necessity is created when the owner of a tract of land sells a part of the tract, and by this division deprives one lot of access to a ___
public road or utility line
115
does a neighbor telling the landlocked P that he can use her land for access to *another* public road "for a price" destroy an easement by necessity/implication argument?
no! give em da easement!
116
a __ gives the holder the right to enter onto another's land to remove natural resource. This is a __ right
it's a "profit a prendre," which is a property right in the property (due process protections)
So a governmental taking will entitle the miner to share in owner's condemnation award
rocks...pier...property lol
117
unless an equitable servitude (restrictive covenant) is from a common building or development scheme (encompassing all the lots in the subdivision), then the equitable servitude may only be enforced BY and AGAINST...
the lots that have it
118
**is a covenant against partition allowable?
no, a tenant always maintain an inherent right to seek partition
119
will: "Hilltop to such of my grandchildren who shall reach age 21; and by this provision I intend to include all grandchildren whenever born."
When man dies, the class of his CHILDREN ends. his "I intend" provision is or is not valid?
valid
120
rule of convenience
a rule of construction based upon a transferor's presumed intent. They're used when a will is silent re: testator's actual intent. But when testator says "by this provision I intend to include all grandchildren whenever born," the rule of convenience (presumptions) wouldn't apply because he gave explicit instructions re interpretation
121
**Owner gives electric company (easement holder) right to construct/use overhead electric line across his property. The writing doesn't mention responsibility for maintenance. Electric line falls during storm because negligently maintained. Who's liable?
electric company, because an easement holder (electric company) is required to make necessary repairs and, if repairs damage the land, restore land to condition it was in before repairs were made
122
Seller says he'll convey to the buyer a marketable title on 300K sale-price home by a quitclaim deed at closing. Title search reveals that the land was subject to a 50K mortgage and easement. buyer now claims title is unmarketable and refuses to close. is buyer correct?
yes, because the right-of-way easement makes title unmarketable
the mortgage here doesn't render title unmarketable because the proceeds of the sale would satisfy the mortgage
although the quitclaim deed only gives title to what the owner actually owns, the owner's promise to deliver marketable title means the buyer can refuse to close
123
does a quitclaim deed negate the implied covenant to provide marketable title?
no, EVERY land sale contract has implied covenant of marketable title, UNLESS IT'S WAIVED IN THE CONTRACT
124
if you authorize agent to deliver your deed, do you have to grant that authority in writing for agent's signature to be valid?
yes, because when the act performed by an agent is required by law to be in writing (deed - land transfer - SOF), then the agent's authority must also be in writing
125
**man conveys house to wife for life, remainder to daughter. house has 200K mortgage. does someone pay the full monthly principal + interest? or someone the monthly principal, and the other the monthly interest?
life tenant (wife) = interest payment (prevent waste)
daughter = principal
126
can an owner-woman who lives in her 4-unit complex state a racial or gender preference in her ads? she wants white male, already has POCs
no! even if she meets the exception that allows her to discriminate in renting her units (4 units, owner lives there), she CANNOT PUBLISH a rental preference or discrimination
127
tenant subleases to friend. who can landlord sue if payments stop?
same question, but for assignments?
sublease = tenant
assignment = both (first friend, then OG tenant). BUT OG tenant may be released if landlord assents to assignment (novation)
128
if person with remainder doesn't make the mortgage payments, could her share in remainder be lost if the mortgage installments aren't paid, even though she can't be held personally liable for any amount?
yes, she's technically not personally liable, but if remaindermen like her don't make the mortgage payments, then house will be foreclosed on, and they'll lose their share in remainder
129
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| 9/14
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| 9/14
130
house that's in violation of building codes = marketable title?
yes, because that's not an encumbrance
131
do general "as is" provisions protect seller in cases of misrepresentation, active concealment, or failure to disclose?
no
132
can seller disclose known latent defects to agent in order to satisfy disclosure requirement?
no, must disclose to buyer
133
does title insurance only cover the person who buys it? or can someone sue the insurance Co instead of the person who bought the insurance?
covers only the person who bought it. someone else cannot sue her insurance Co
134
**----TITLES----
**do some people have a duty to make a title search?
NOBODY has a duty to make a title search (that's never the right answer)
135
**when a creditor receives a judgment against a debtor, and FILES the judgment in the county, is it considered recorded/protected via notice statute?
yes because he filed (ie recorded) it. if was *filed*, will have priority over anything in *future*, except purchase money mortgage
136
**guy buys property, records deed, K signed but hasn't closed yet. then, a debtor wins a judgment lien against seller, files it. notice statute. is there marketable title?
yes because buyer's protected because he recorded (so judgment lien creditor had constructive notice)
137
estoppel by deed: if a grantor purports to convey an estate in property that she doesn't own, her subsequent acquisition of title to the property will or will not automatically pass to the grantee?
will! BUT the grantee may only assert estoppel against the GRANTOR -- it doesn't protect the grantee [person who originally purportedly got the land] from subsequent bona fide purchasers [someone who later bought it from OG grantor] (diff chains of title)
the later grantee isn't bound by estoppel by deed
138
**ademption vs lapse
ademption -> ah damn, soldit! -> no longer yours
property bequeathed under a will, but they no longer own when they die, does not go to recipient because it no longer is the giver's. not even the proceeds of the specific gift go to the recipient because that's not the item itself
the sale proceeds go to whoever has the 'residue of the estate' in the will
Dan: 'I give my farm to Eric, and residue to Victoria'
Dan sells farm while alive. Dan then dies. Eric gets nothing, Victoria gets proceeds
*BUT it's a LAPSE if will *beneficiary* DIES before the will goes into effect (like ademption, goes to residuary)
139
**equitable servitude's 3 requirements
LIN Jeremy
(1) intent (to bind successors)
(2) notice (eg recorded)
(3) land (concerns its use)
CAN ONLY BE ENFORCED BY OG PARTIES, unless it's meant to bind the entire subdivision (then anyone can enforce). remedy = injunction
140
**who can enforce equitable servitude?
OG PARTIES, unless it's meant to bind the entire subdivision (then anyone can enforce). remedy = injunction
141
does access to inconvenient dirt road that can't be used w/o great expense DEFEAT argument for easement by necessity?
yes. even if inconvenient, u can technically use it, no need for right to something else for necessity
142
re: easements, dedication =
donation of land, or creation of easement for public use
143
if u get express permission to use strip of land as easement, could it eventually become easement by prescription (adverse possession) that cannot be revoked?
no! permission = not adverse! so can be revoked anytime
144
easement in gross involves one or two plots of land?
1. like giving Water Co permission to install pipes
giving permission w/ only one plot involved = gross (so easy for other person!!)
new owner has notice of the easement if easement was recorded (or otherwise give notice). deed to new owner doesnt need to mention the easement: he should inspect title records (constructive notice)
145
what remedy can P get when D uses easement beyond scope?
remedy = prevents only the EXTRA scope (but the OG easement remains)
146
heirs only matter if you die WITHOUT a will
so if A gives Switch to B, his heirs, etc.
B dies, he had a will, so it goes to whoever's in the will
147
executory interest vs contingent remainder
CONTINGENT REMAINDER = you get it CONTINGENT on you doing something!
follows a life estate or term of years after they end naturally
contingent = IT must satisfy certain conditions to qualify (^to A for life then, IF B GRADUATES FROM COLLEGE, then to B)
EXECUTORY INTEREST = cuts short someone else. sorry! its interest will be triggered on the happening of a stated event (to A and his heirs, but if A dies without marrying, to B!!!)
148
"to the church for the purpose of erecting a church." what effect does "for the purpose of" have?
nothing! here, fee simple to church
149
which of these HOA powers are allowed if someone's violating the rules?
- removing the violating trees
- withdrawing owner's use of common recreational facilities
- denying Board member voting privileges / Board position
all okay, except removing the trees (though u CAN fine/punish)
150
does merger occur then A owns Plot 1 in fee simple, and Plot 2 through life estate?
no, life estate doesn't create merger
151
***easement appurtenant vs easement in gross
which one runs w/ the benefitted land? which one expires when the land is sold?
easement appurtenant: allows benefited property owner (A) to access land (freeway) that's only accessible through a neighbor's land (B). the easement AUTO transfers when A is sold, regardless if mentioned in deed. so new A landowner also has easement to use B's land. B cannot block it.
It BENEFITS the use of property A to pass through B -- so beneficial land = auto pass, even better! Involves 2 land
easement in gross: benefits an individual, not estate A (to use estate B). Involves 1 land
- Confers upon holder only some personal or pecuniary advantage NOT related to his use or enjoyment of his own land. (ex: right to place billboard on another’s lot, right to swim in another’s pond).
- NOT TRANSFERABLE unless it is for COMMERCIAL purposes.
152
does mixing types of residential units negate the provisions of a common development scheme?
no, if they're still all residential, then it's okay if some are family home and others apts
153
equitable servitude requirements
Intent to bind future successors
Notice (subsequent grantee has notice of the servitude)
Touch/concern the land (somehow benefit the land, like not allowing drinking = prevents bad behavior)
NIT conference - equitable servitude, stuck in that division
154
for equitable servitude to bind an ENTIRE division, it must...
be found in the subdivision's common building plan
155
does someone in adverse possession of property for statutory period have marketable title to convey?
no, because buyer might be sued about whether the adverse possession was correct
156
does a restrictive covenant render title unmarketable?
yes
157
**if tenant assigns full remainder of lease to friend, but they tenant isn't released by landlord, who's liable to pay for future missed rent?
both, because tenant was never released
158
can an "as is" sale be valid re: terminates, if seller sold to buyer w/ warranty deed?
yes :O seller may disclaim any duty to disclose defects if the disclaimer is sufficiently clear & specific
warranty deed only deals w/ title
159
seller and buyer contract that buyer will take the land subject to easements, encumbrances. after contract is agreed to, but before deed is executed, seller grants easement to a 3P. can buyer repudiate?
yes because K was "subject to easements" at the time of contracting -- the new easement was granted afterwards
160
"an ejectment action may be brought within 21 years after the cause of action accrues" means...
21 years are required for adverse possession
161
A and B are JT w/ right of survivorship. Both die at same time. what happens to their interest?
A's (1/2) goes to A's heirs; B's (1/2) to B's heirs. Right of survivorship not triggered since died simultaneously
162
equitable conversion only applies to what issues?
who bears risk for damage to property
| S---K---B
163
is a mortgage an encumbrance?
yes
164
does a property's lack of access make title unmarketable?
yes, but can only sue if deed hasn't been delivered
