Property Flashcards
1
Q
Name the two present estates
A
fee simple absolute (determinable or condition subsequent) or life estate
2
Q
Name the future estates held by the grantor
A
Reversion, Possibility of Reverter, and Right of Entry (power of termination)
–it’s when the grantor conveys less than his entire share–
3
Q
Name the future estates held by a third party grantee (2)
A
Remainder and Executory Interest
4
Q
Characteristics of Fee Simple Absolute (4)
A
- Present Estate
- Runs forever
- No restraints on transfer of ownership (any attempt is void)
- Presumption: courts presume this unless language has clear intent to make something else
5
Q
Right of First Refusal and Conditions on Present Estates
A
Ok, as long as they don’t limit the right to transfer
6
Q
Fee Simple Determinable
language indicating (4) and what it matches up with
A
Language:
- so long as/as long as
- while
- during
- until….something happens
Goes with possibility of reverter
7
Q
Possibility of Reverter
A
Goes with Fee Simple Determinable
Held by grantor (it’s automatic upon the happening of the fee simple determinable)
8
Q
Fee Simple on Condition Subsequent
language indicating (3) and what it matches up with
A
Language:
- Provided/however
- But if/if
- Upon condition that
*not ‘for the purpose of’
Goes with Right of Re-entry (aka power of termination)
9
Q
Right of Re-entry
A
Goes with fee simple on condition subsequent
Held by the grantor but does not go back automatically to him on the happening of the condition subsequent–grantor must exercise right of entry
Grantor must reserve the right of entry with proper language (gives him right to go and take land)–if he doesn’t, condition will be ignored
10
Q
Life Estate
A
Present estate measured by a lifetime (never actual time)
Forfeiture restrictions (but if..) terminating estate if holder tries to transfer is ok
11
Q
Life Estate Pur Autre Vie
A
life estate measured by the life of someone else
12
Q
Duties of LIfe Tenant on the Estate (3)
A
Maintain: continue normal use of land in present condition (to do more/less is waste)
Duty not to commit waste
No duty to insure the property
13
Q
Class Gifts Characteristics (4)
A
- Gifts to a class of unnamed people
- Can lapse: members who die first are eliminated/get nothing
- -but if they survive T but die before class can take, his heirs will take - Class stays open: to accommodate those who later meet class definition
- Rule of Convenience: class closes when any member is entitled to distribution (unless grantor says otherwise)
14
Q
Reversion
A
future interest held by grantor, when he gives away less than full estate
not certain-may/may not go back to O depending on the grants
can be transferred
15
Q
If future interest is ambiguous (is it condition subsequent/right of entry or determinable/reverter?)
A
Court presumes condition subsequent/right of entry since this won’t automatically divest someone of property
16
Q
Remainder
what, and three types
A
A future possessory interest given to a third party grantee upon the natural expiration of the estate before them
does not affect the prior life estates
- Vested Remainder
- Vested Remainder Subject to Open/Partial Divestment
- Contingent Remainder
17
Q
Vested Remainder
A
future possessory interest given to a third party grantee upon natural expiration of estate before them
nothing stands in the way of it becoming possessory (you know who will take and there are no conditions)
18
Q
Vested Remainder Subject to Open/Partial Divestment
A
future possessory interest given to a third party grantee upon natural expiration of estate before them
gift to a class not fully developed–don’t know who will take it, so class will stay open for future members to qualify
19
Q
Contingent Remainder
A
future possessory interest given to a third party grantee upon natural expiration of estate before them
something has to happen/be known before remainder becomes possessory
- condition: must be satisfied
- grantee not in existence: kids must be born
- ID unknown: ex, don’t know a widower until husband is dead
20
Q
Executory Interest
characteristics and two types
A
future possessory interest given to a third party grantee that operates to cut short a life estate
‘vested remainder subject to an executory interest’
right to sue if the life estate holder commits waste
- Springing: operates by taking title from grantor and giving it to grantee
- Shifting: operates by taking title from one grantee and giving it to another grantee
21
Q
List 3 kinds of waste
A
Voluntary Waste
Permissive Waste
Ameliorative Waste
22
Q
Voluntary Waste
A
any affirmative action beyond right of maintenance, causing harm to premises (ex: cutting trees or depletion of natural resources–unless that was purpose of land)
Sale of crops is not waste, nor is reasonable repair
23
Q
Open Mine Doctrine
A
there was already a working mine on the property, so the life estate holder can use it w/o committing waste
24
Q
Permissive Waste
A
life tenant fails to maintain.
must do 3 things to avoid permissive waste:
- Repair: ordinary repairs, not replacement
- Taxes: pay all taxes on property (holder of future interest must make sure they are paid or will lose rights in tax sale)
- Interest: life tenant pays interest on mortgage (holder of future interest pays the principle)
25
Ameliorative Waste
affirmative act of life tenant that alters the property substantially (but increases value of estate)
26
Changed Conditions Exception to Ameliorative Waste
if changed conditions made property relatively worthless in current use, life tenant can tear it down/change it w/o liability (but has burden of proving changed conditions)
27
RAP Applies to (5):
```
Contingent Remainders
Vested Remainders Subject to Open
Executory Interests
Powers of Appointment
Right of First Refusal/Options
```
28
RAP Rule
no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
(could everyone alive at time of grant die, 21 years pass, before interest might vest?)
29
RAP Exception: Perpetuity Savings Clause
saves a grant from RAP by making sure it will vest w/in the time period of the rule
30
RAP Exception: Charity to Charity
RAP is never violated if the gift over is from one charity to another
31
RAP and Class Gifts
Bad to one, bad to all: if RAP voids a gift to any member of the class b/c of a possibility the interest might vest outside the time period, then all members in class lose the gift
32
RAP and Unborn Spouse
gifts following widow(er)'s life estate, where gift can't vest until widow dies
grant must be written so vesting doesn't occur until widow dies
b/c A could have married a woman not alive when O made the will, so she wasn't a life in being
33
Important Time for Deed and Will for RAP
Deed: look at the time the deed was made
Will: look at the situation at time of testator's death
34
Characteristics of Joint Tenants (3)
1. concurrent ownership
2. right of survivorship
3. right to partition by any joint tenant (destroys joint tenancy)
35
4 Unities Required for Creation of joint tenants
Time: all interests vest at same time
Title: grant to all tenants in same instrument
Interest: all must take same kind/amount interest
Possession: all must have identical rights of possession
36
Language Required for Joint Tenancy
must clearly create joint tenancy b/c the presumption is tenancy in common
37
Destruction of Joint Tenancy
Partition
Severance: involuntary destruction by:
-conveyance by any of the joint tenants (but not all)
-mortgage in a title theory state
-contract of sale (equitable conversion)
-creditor's sale (must be sale, not just a lien)
38
Texas and Joint Tenants
no common law joint tenants, only tenants in common. but can create contractual right of survivorship
39
Tenants in Common Characteristics (4)
1. concurrent ownership
2. right to partition by any tenant
3. no right of survivorship
4. the presumptive tenancy if wording isn't clear
40
Unity Required to Create a Tenancy in Common
possession: all must have identical rights of possession
41
List 3 Rights/Duties between Co-Owners
Possession
Accountability
Contribution
42
Possession as a right/duty between co-owners
each has a right to possess all the property consistent with other co-tenants
43
Accountability as a right/duty between co-owners
typically, one co-tenant doesn't have to account to another for profits since each has right to use whole, but exceptions:
- Ouster: accounting if one tenant either keeping another off the property or claiming exclusive possession
- Agreement: contractual agreement to share profits
- Lease: lease of property by co-tenant to third party
- Depletion: of natural resources by one co-tenant
44
Contribution as right/duty between co-owners
must pay their share of:
- mortgage on property signed by all co-tenants
- gov. imposed obligations (taxes, assessment for streets, sewers, etc.)
45
Title Theory v. Lien Theory for Mortgages
Title:
- minority
- when mortgage executed title passes from mortgagor to mortgagee and back to mortgagor when paid off
Lien:
- majority and presumption
- when mortgage executed a lien attaches to title and doesn't get transferred
46
List 4 Landlord/Tenant (aka Non-Freehold) Estates
Tenancy for Years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance
47
Tenancy for Years
a non-freehold landlord/tenant estate
duration: any specified time (not just for a year)--states when it will begin and when it will end and ends automatically on that time
SoF: any tenancy of years over one year must be in writing
48
Periodic Tenancy
a non-freehold landlord/tenant estate
Duration: repeating, ongoing, until one party gives valid notice (ex: month to month, wk to wk)
Notice: time must be at least equal to the period, unless it is a year, then only 6 months req.
-correct effective day of termination is the last day of the period.
49
4 Ways to Create a Periodic Tenancy
1. Express Agreement
2. By Implication: if lease silent to duration it's presumed periodic, measured by rent payments
3. Operation of Law/SoF: an oral lease violating SoF but landlord takes rent, creates periodic tenancy determined by period covered in rent check
4. Operation of Law/Hold Over: tenant stays after lease over and landlord takes rent, there is new periodic tenancy
50
Tenancy by Will
a non-freehold landlord/tenant estate
Terminated by:
- death of either party
- waste of tenant
- assignment by tenant
- transfer of title by landlord
- lease by landlord to someone else
51
Tenancy at Sufferance
a non-freehold landlord/tenant estate
bare possession of holdover tenant, continues til eviction
Landlords options:
1. sue to throw him out and get damages
2. impose new periodic tenancy, forcing him to stay
52
Raised Rent and the Holdover Tenant
if landlord tells tenant of higher rent before expiration of lease, and landlord holds over, landlord can impose new periodic tenancy at the higher rate
53
3 Duties of Tenant
1. pay rent
2. not commit waste
3. if lease says tenant must 'repair and maintain'
- liable for all property damage including ordinary wear and tear (unless it is specifically excluded from promise to repair)
54
If Premise Destroyed, Not by Tenants Fault
tenant can terminate the lease is premise is destroyed w/o his fault
55
Landlord Remedies if Tenant Doesn't pay Rent
can sue for both damages and to throw him off the property
| can deduct rent from security deposit
56
Landlord Remedies if Tenant unjustifiably Abandons Property
1. treat abandonment as offer of surrender and accept by retaking (ending tenants liability as of that date)
2. re-rent premise on tenants account and hold tenant liable for any deficiency (mitigate damages)
57
List 3 Landlord Duties
1. Give actual possession
2. implied warrant of habitability
3. implied covenant of quiet enjoyment
58
Implied Warranty of Habitability
Landlord duty to tenant
landlord must provide property reasonably suited for residential use (basic necessities to be habitable)
Can't be waived
59
If Landlord breaches implied warranty of habitability
tenant has 2 options:
1. move out and end lease
2. stay and sue for damages
60
Texas and Implied Warranty of Habitability
no implied warranty, but statute req landlords to repair conditions that materially affect physical health and safety of ordinary residential tenant.
If landlord breaches, tenant can:
1. move out
2. stay and repair and deduct cost from rent
3. sue landlord
commercial leases: court created implied warranty of suitability covering latent defects in essential facilities of leased property
61
Ways Landlord can breach Implied Covenant of Quiet Enjoyment (4)
1. total eviction of tenant: terminates lease
2. partial eviction of tenant: not terminate but tenant doesn't pay any rent
3. partial eviction by someone w/better title than landlord: tenant's rent reduced accordingly
4. Constructive eviction: landlord fails to provide service, making premise uninhabitable
62
Three Requirements for Constructive Eviction
1. landlord is cause of the condition/allowed it to happen
2. must be substantial interference with covenant of quiet enjoyment
3. must abandon premises w/in reasonable time after breach
63
Rent Acceleration Clauses
if tenant in default, he must pay all rent due at once. majority of states accept it.
if rent accelerated, landlord can't take possession too
64
Landlord Duties of Care (6) --aka Tort Liability
generally no duty unless:
1. disclose latent defects known/reason to know
2. common areas
3. criminal activity if no security measures
4. negligent repair by landlord/person he hired
5. short term lease of furnished dwelling, liable for all defects
6. public use:
- landlord knew/should of major defect and
- landlord knew/should tenant will not fix and
- landlord knew/should the public will be using premise
65
Assignment v. Sublease
Assignment: tenant transfers everything, holding nothing back (but can re-enter and take back if needed)
Sublease: tenant transfer a portion of the lease period, holding some back
66
Texas: Right to Assign/Sublease
In Texas, no right to assign/sublet unless landlord gives permission (unless the lease says otherwise)
67
Non Assignment/Non Sublease Clause in Lease
valid/enforceable but construed narrowly--a non assignment clause doesn't also prohibit sublease and vice versa
Violation: voidable at landlord option
68
If Landlord gives permission for assignment/sublease contrary to clause in lease
permission given once means the non assignment/sublease clause is waived for all time unless landlord states otherwise at time of giving permission
acceptance of rent by landlord is same as giving permission
(know as Dumptor's Rule)
69
In Assignment who can Landlord sue for rent?
Under the contract, landlord can sue the original tenant
under the privity of estate, landlord can sue the person in possession
70
In Assignment, if there are successive landlords, who can tenant sue?
the original landlord under privity of contract and current landlord under privity of estate
71
In Subleases, who is liable for the rent?
only the original tenant, the sublessee is not liable to the landlord b/c there is no privity of contract or estate (sublessor is considered to have kept estate)
72
Full and Partial Condemnation by State
partial: doesn't release tenant from rent but tenant gets money equal to rent that will be paid over remainder of lease, for property taken
full: extinguishes lease and tenant excused from rent and tenant gets money award to the extent the fair rental value of lease exceeds rent under lease
73
What is a Fixture?
chattel that can't be removed from property b/c it has become so affixed to property that it is a part of it
74
How to Determine if Something is a Fixture (4 steps of intent)
(if it isn't expressly agreed in contract) look at inferred intent:
1. degree of attachment
2. genearl custom regarding chattel
- washer and dryer never fixture
3. degree of harm to the premise to be removed
4. trade items (always removable)
75
If something Isn't a Fixture, when can it be removed?
Before the end of the lease or before closing--wait until after and it must stay
76
Easement (characteristic and 2 types)
non possessory interest in land, involving right of use
1. Easement Appurtenant
2. Easement in Gross
must comply with SoF
77
What is an Easement Appurtenant
easement that directly benefits the use/enjoyment of a specific piece of land
involves 2 pieces of property:
1. burdened, servient estate
2. benefited, dominant estate
78
What is an Easement in Gross
an easement that doesn't involve a dominant estate
| ex: utility easement (power lines, trains)
79
List 3 ways to create an Easement
1. Express Easement
2. Easement by Implication
3. Easement by Prescription
80
Express Easement
| characteristics and 3 requirements
express grant of easement to another/reservation of easement when land is sold
must comply with SoF
Requirements:
1. in writing
2. signed by holder of servient estate
3. executed like a deed
81
Easement by Implication
| 2 situations where it arises
Previous Use by Common Owner:
- sells off piece of property to someone else and previous owners use is:
1. first/continuous
2. apparent
3. reasonably necessary
Absolute Right of Access/Implied Easement of Necessity
- when property would otherwise be landlocked
- servient estate can chose location of easement if reasonable
82
Easement by Prescription
1. use adverse to owner (no right to use it)
2. use continuous and uninterrupted for stat. pd
3. use visible/notorious or with owners' knowledge
4. w/o owners permission
stat period: 20 generally, 10 in Texas
-begins to run when adverse use starts
83
Transferring the Benefit of an Easement
Appurtenant: goes automatically w/dominant estate, whether mentioned or not but can't be transferred separately from estate
Gross:
- Commercial: always transferred
- Personal: never transferred
- Texas: bars all transfers unless lang. of easement says so
84
Transferring Burden of an Easement
needs notice to subsequent holder
85
Presumptions if Easement is Silent on Length/Use (2):
1. easement is perpetual
| 2. use is that of a reasonable development of dominant estate (reasonable/likely contemplated by parties)
86
Who can Use the Easement?
only the dominant estate holder (not random people, not his friends-that would be excessive use)
87
Remedy for Excessive Use of Easement (Surcharge)
enjoin the excessive use, get injunction and damages-not terminate the easement
88
Repair of Easements
holder obligated to keep easement in repair
- can go on servient to repair
- but must make reasonable restoration of servient estate after repair
- servient has no obligation to repair (unless contract says otherwise)
89
6 Ways to Terminate Easement
1. Unity of Ownership/Merger
2. Valid Release (must comply w/SoF)
3. Abandonment (some physical act)
4. Termination by Estoppel (representation of relinquishment by dominant, reliance by servient)
5. Termination by Prescription (servient stops use for stat. period)
6. End of Necessity
90
Licenses Characteristics
Limited privilege of use, not a property interest
-only a contract right
no SoF issue
Revocation at will of licensor unless:
-irrevocable license: license + money spent on property in furtherance of license (then just as good as easement)
91
Attempted Easement fails b/c of SoF
creates an irrevocable license
92
Profits
right to go onto land to take natural resource
- also implied easement to go on land to get resource
- follows easement rules
93
PUblic Easement by Prescription
on private land, the public can get easement by prescription
-same elements but doesn't have to be exclusive
94
Covenant Running w/Land at Law (aka Restrictive Covenant Enforced at Law)
(4 requirements)
1. intent to run with land
2. notice of person against whom enforcement sought
3. touch and concern the land
4. privity (horizontal and vertical)
95
Privity Required for the Burden of Covenant Running with land
for a burden to run against the successor in interest there must be:
- horizontal privity
- vertical privity
96
Privity Required for the Benefit of Covenant Running with Land
for benefit to run in favor of the successor of interest there must be:
-vertical privity
97
Equitable Servitudes (Restrictive Covenants enforced in equity)
(3 requirements)
easier to enforce than at law
1. intend restriction to be enforceable by successor in interest
2. notice to subsequent purchaser and
3. must touch and concern the land
(no privity required!)
98
Subdivisions and Mutual Right of Enforcement
| aka reciprocal negative servitudes
any lot owner can enforce a residential restriction if:
1. interest to create a servitude is on all land in subdivision (found in common building plan)
2. notice
- actual
- record notice
- inquiry notice
99
Equitable Defenses to Enforcement of Equitable Servitudes (5)
1. unclean hands: P did same thing as D did
2. Acquiescence: P let neighbor do what D did
3. Laches: P sat by and did nothing while D did action and only now that D is done is P complaining
4. Estoppel: P said earlier it was ok
5. Changed conditions
100
Adverse Possession
| 6 elements: HELUVA
1. Hostile: on property w/no right to be there
2. Exclusive: excluding others from possessing property
3. Lasting: statutory period
4. Uninterrupted: kind of continuous use an ordinary owner would make
5. Visible: aka open and notorious
6. Actual: actually possess land to get title
101
Statutory Period for AP
| 1 general, 4 different for Texas
general: 20 years
Texas:
- 3 years if possessor under color of title and only narrow, specified defects in title
- 5 years if possessor is there under color of title and pays taxes
- 10 years if possessor just bare possession (limited to 160 acres unless larger area fenced)
- 25 years if possessor paid taxes for period, on property under color of title and true owner under disability
102
Constructive AP
| characteristics and 2 requirements
exception to requirement for actual possession
on land w/color of title to whole tract but only possesses part of it, but can still get all of it
requirements:
1. amount actually possessed reasonable relation to whole
2. property must be unitary (seamlessly whole)
103
Leasing Land and AP
leasing to someone when you don't really own the land qualifies as possessing it for AP purposes
104
2 main things NOT required for AP
1. owner doesn't have to know of trespasser (owner doesn't have to know anything)
2. AP doesn't have to think that he owns the property (ok that he knows he's trespassing)
105
AP against Concurrent Owners
ex: joint tenants or tenants in common
exclusion of other concurrent owners will start the clock running, not the mere absence of the co-tenant
106
AP and Future Interests
| 3 main situations
1. Life Estate + Future Interest: clock not start against future interest holder until life tenant dies (when it becomes possessory)
2. Fee Simple Determinable: happening of the condition starts the running of the clock for AP
3. Fee Simple on Condition Subsequent: clock doesn't start until grantor exercises right of re-entry
107
Tacking and AP
- can tack periods of Adverse possessor, if it goes directly from one AP to another, w/no gaps
- can tack periods of true ownership (doesn't have to be against the present owner for the entire stat period)
108
Types of Disability
| in gen, and in Texas
In general:
- minor
- insane
- jail
Texas:
- minor
- armed forces
109
How Disabilities Affect AP in General
- If owner under disability when AP begins: clock doesn't start until true owner free of disability
- if owner becomes under disability after AP begins: has no affect
no tacking of disabilities!
110
How Disabilities Affect AP in Texas
max tolling pd for disabilities is 25 years (after that the clock will start even if the disability doesn't go away)
111
Can you AP government land?
nope
112
What are the Two Steps in the Conveyancing of Land?
1. first the contract of sale
| 2. at the closing, the deed
113
What is Required for a Contract of Sale (of land)
| 5 general requirements
-governed by all regular contract rules plus
1. SoF
- in writing
- description of property
- name of parties
- price
114
Part Performance (as an exception to the SoF for a Contract of Sale of land)
oral contract that would be void under the SoF will be enforced if it is certain/clear and there is an act of part performance clearly proving the contract
shown by:
-possession + either:
paying full purchase price (or very close) OR
erecting improvements
115
Risk of Loss After Contract (but before closing)
In General: the buyer loses b/c of equitable conversion (only if seller is not at fault)
In Texas: risk of loss is on person in possession at time of loss b/c of uniform vendor risk act
116
If one party dies before closing (but after the contract)
Seller Dies: buyer closes with his estate and seller's interest is the personal property (the money)
Buyer Dies: seller closes with buyer's estate and buyer's interest is in the real property (the land)
117
Requirement of Marketable Title
| what that means and 3 things seller must give buyer
marketable title = a title that a reasonable person would accept--not a reasonable risk of litigation
1. Proof of Title: abstract or copy of all deeds in chain of title, showing no defects
2. Title Free of Encumbrances (ex: easement, restrictive covenants, options)
3. Valid Legal Title on Day of Closing
118
3 Things NOT considered an encumbrance to title:
1. zoning ordinances in general (if the property is in violation then encumbrance)
2. violation of housing/building code
3. mortgage (if mortgage will be satisfied with proceeds)
119
Time for Performance with Land Sales
even if closing is mentioned in contract, time is not of the essence in land sales contracts unless contract says so, or facts make it clear that is what the parties expected
if not of essence, performance must be tendered w/in reasonable time after date of closing (2 months is reasonable)
if time is of the essence: party who fails to perform on date can no longer enforce the contract and is in total breach
120
Remedies for Buyer if Seller's Title is Unmarketable
| 2 steps, 3 remedies
1. buyer must notify seller and give reasonable time to cure defect, even if postpones closing
2. if problem can't be corrected in reasonable time:
1. recession: buyer walks
2. damages: sue for breach
3. specific performance: take what seller can give and reduce price
121
AP and Covenants on Land
If AP uses land in violation of the covenant than he takes free of it
If AP uses land in conformity with covenant than he takes land with covenant
122
How to be able to Sell a Piece of Land you AP'ed
have to go to the court and quiet title so you have a good/marketable title
123
If Buyer takes land w/o title problems being cured:
no recouse against seller based on the contract, any action must be based on what's in the deed
124
Remedies for Breach of the Sales Contract
1. Damages
- diff between contract price and value of land on day of breach
- liquidated damages: buyer's deposit forfeited if not more than 10% sales price
2. specific performance of sales contract
125
If there are defects on the property
gen: caveat emptor
exceptions: seller must disclose serious defects that seller knows and aren't obvious to buyer
126
Implied Warranty of Fitness/Merchantability
for new homes being sold by builder/manufacturer
127
Deed (step 2 of conveyance) and idea of merger
once deed accepted at closing, sales contract merges into deed and is completely gone. all contract provisions gone unless included in the deed or the contract says they will survive
deed: written doc that transfers title (ownership) or interest in real property from one person to another
128
List 2 Requirements for passage of the legal title from seller to buyer
1. execution of the deed
| 2. delivery of the deed
129
Execution of the Deed
Subject to SoF
- in writing
- signed by seller
- have words of intent to deed land (parole evidence can be used to show no intent)
- description of land (address is good)
130
Delivery of the Deed
doesn't have to be physical delivery/transfer
question of intent to pass title
can use parole evidence
presumption: recording presume delivery
presumption: grantor dies with deed in possession, no delivery
131
Conditional Delivery of Deed
ex: 'to A but not until I die"
valid delivery of a future interest so read it as: O to O for life, then to A
132
Oral Conditions on Delivery of Deed
ex: deed says from O to A but O tells A 'this is only if you marry my kid'
condition completely disregarded
133
Conditional Delivery of Deed, on Grantee Paying Purchase Price
ex: use of escrow
valid provided grantor makes delivery to third party in escrow w/instruction to deliver to grantee when condition satisfied
once deed goes to escrow agent, can't get it back
134
Acceptance and Consideration for Deed Delivery
acceptance is presumed unless facts show rejection
consideration is not required (but it would be if you are going to claim BFP status later)
135
General Warranty Deed has 6 promises regarding title (present and future)
Present:
1-2: Covenant of Seisin/Covenant of Right to Convey
3. Covenant against encumbrances
Future:
4-5: covenant for quiet enjoyment/covenant of warranty: protect from later claims
6: covenant for future assurances: if seller needs to do anything else to convey good title
136
Damages for Breach of Covenant
Damages for Breach of Warranty: P can get purchase price received by warrantor + incidental damages
137
Estoppel by Deed
If A deeds property to B that A doesn't own, but later A gets title, B will get title
Except: A (grantor) transfers to BFP, B (original grantee) loses
Texas: called Doctrine of After Acquired Deed
138
List Three Recording Acts
1. Notice Act
2. Race Notice
3. Pure Race
139
Notice Act (one of the recording acts)
protects subsequent grantees who are BFPs
language:
-'w/o notice' or 'in good faith' and nothing else
(recording is irrelevant unless gives notice)
texas uses
questions:
- bfp? notice?
140
Race Notice (one of the recording acts)
protects subsequent grantees who are BFP and first to record
language:
-'w/o notice' or 'in good faith' AND 'first recorded/recorded first'
questions:
bfp? record first?
141
Pure Race (one of the recording acts)
whoever records first wins. subsequent purchaser doesn't even have to be BFP, could know about earlier sale
Language NOT used:
-'in good faith' or 'w/o notice'
142
List 3 types of notice
1. actual
2. record
3. inquiry
143
BFP
purchaser for value and takes w/o notice of earlier transaction
bottom basement price is ok but one dollar isn't
heirs, donees or devisees are not BFP, so can't defeat claim of someone who has prior conveyance
144
Shelter Rule
anyone (even heirs, donees) can shelter under rights of BFP
Anyone who takes from BFP gets valid rights, so they can transfer the property
even if they knew of earlier sale
145
Wild Deeds
deeds recorded outside the chain of title (recorded too late)
don't give notice
146
Security Interest (characteristic, 3 types)
device that is used to secure a loan on real property
1. Mortgage
2. Deed of Trust
3. Installment Land Contracts
147
Mortgage (type of security interest)
given by debtor (mortgagor) to creditor (mortgagee) and if mortgage isn't paid the sheriff sells land at foreclosure
148
2 Random things that are Considered Mortgages
1. Absolute Deed/Equitable Mortgage (separate promise of conveyance b/c deed really given to secure loan)
2. sale-lease-back w/option to repurchase
149
Deed of Trust (type of security interest)
given by debtor to a third party trustee who holds it until loan is paid off and if it isn't, trustee can sell land at auction
150
Installment Land Contract (type of security interest)
debtor signs contract promising to make payment and seller keeps title until the loan is paid off (completely)
Texas: Contract for Deed
151
Right of Redemption (for mortgage and deed of trust b/c they can be foreclosed on)
at any time up to foreclosure sale, debtor can redeem property
normally: pay amount in arrears
acceleration clause: debtor pay off entire balance
can't be waived in mortgage/deed, but can be waived later for separate consideration
152
Statutory Right of Redemption (for mortgage and deed of trust)
in some states
| lets the mortgagor get the property back after the foreclosure sale by paying foreclosure sale price
153
Priorities if Land has Multiple Mortgages
usually first in time first in right unless recording statute changes it or changed by contract between mortgage companies
PMM (taken out to buy property) gets priority over all other mortgages
--PMM by seller gets priority over PMM given by third party lender
154
If Owner Increases a Senior Mortgage
ex: taking out more money or increasing the interest rate
mortgage loses priority over junior one to extent of change only
155
Texas and Mechanics/Materialmens Liens (MML)
| characteristics and 3 requirements to perfect
validly perfected MML protect workers/suppliers to workers on real property
priority over mortgages/other liens
requirements to perfect MML
1. affidavit filed with county clerk where property located no later than 15th day of 4th calendar month after day indebtedness accrues
2. affidavit has:
- amount of claim
- name/address of relevant ppl
- genearl statement of work done
- materials furnished
- legal description of property
3. copy of affidavit sent by cert/reg mail to owner w/in 5 days of filing
can be foreclosed on like any other lien
relates back to commencement of construction/delivery of materials, not the date when the affidavit is recorded
156
What Interests does Foreclosure Wipe Out?
foreclosure wipes out junior interests but not senior interests
so, junior interest must be included as parties to foreclosure and given change to pay off senior debt
157
Order to Dispense Foreclosure Proceeds
1. cost of foreclosure, expenses and attorney fees
2. mortgage that was foreclosed, including interest
3. junior mortgages, in order
4. anything left goes to mortgagor
158
When Foreclosure Money isn't Enough
mortgagee (the creditor) sues the debtor for the balance
Texas: deficiency judgment limited to:
-difference between debt and FMV of property
Normally: deficiency judgment limited to:
-difference between debt and sale price
159
Consequences of Installment Land Contract (a security interest)
Forfeiture Clause, will say if debtor misses a payment seller can:
- cancel contract and
- keep money paid to date and
- get property back
Texas: protects buyer:
- seller has to give buyer notice of prospective forfeiture
- buyer has 30 days to cure default
160
Transfer of Security Interest
each party can freely transfer
Mortgagor: transfer title to property and mortgage tags along
- if grantee does not assume mortgage (takes subject to) he is not personally liable (though land can still be foreclosed on)
- if grantee assumes mortgage he is primarily liable and initial mortgagor liable as surety
- but if second purchaser and mortgagee change mortgage the first mortgagor is discharged
161
Due on Sale Clause
if mortgagor transfers w/o mortgagee's consent, full amount of loan is immediately due
clause enforced
162
Fixture Filing
if fixture filing not made as required by UCC art. 9 w/in 20 days of attachment then SI in chattel is subordinate to earlier mortgage on property but if it is proper the supplier of the chattel can remove it w/o regard to any mortgage
163
Right of Lateral Support
support from sides from adjoining landowners
Strict liability if land not supported and damage to improvements IF weight of improvement didn't cause collapse. negligence is building destroyed under normal tort principles
164
Right of Subjacent Support
support of surface from Bottom from adjacent landowners (like getting minerals)
strict liability for land/improvements existing when mineral rights severed (but not buildings built after that time)
negligence is building destroyed under normal tort principles
165
Riparian Water Rights
Majority
refers to ppl whose property borders lake/stream
owner can use all water needed for domestic purpose
-if non domestic (commercial/industrial) owner limited to reasonable use)
166
Prior Appropriation
western states, minority
| first in time takes: anyone who makes beneficial use of water has right to continue use
167
Texas and Water Rights
permit regulatory system w/ prior appropriation being main factor
168
Water Under the Ground (aka percolating, well or ground water)
landowner entitled to reasonable use, if used on property and not exported elsewhere
Texas: rule of capture, use doesn't have to be reasonable, can use all land if:
- not malicious
- can't waste
- can't cause subsidence of neighbor's land
169
Surface Water (runoff or flood water)--2 theories
Natural Flow: not supposed to change nat flow, except reasonably to deal with flood, like drainage ditches/pipes
Texas: natural flow
Common Enemy: can do anything with floodwater/reasonable or not
170
How do you qualify land as your homestead?
must intend to have property as your homestead and either actually occupy it or take overt actions of preparation showing you were about to
171
Rural and Urban Homesteads
Rural: no more than 200 acres for family/100 for single person, don't have to be continuous
Urban: no more than 10 acres, if more than one lot, must be continuos
172
2 Kinds of Debts that can force Sale of Homestead
1. Taxes: always vulnerable to sale if unpaid taxes on property
2. Loans Tied to Property: buying, financing, improving, home equity
173
Texas Real Estate Broker and Stuff
broker in texas can't get real estate commission unless the promise/agreement for payment is in writing or signed by the party to be charged
174
vendor and purchaser risk act
if all material part of property destroyed w/o fault of vendor before the legal title or possession has been transferred, the vendor may not enforce the contract and purchaser is entitled to recover any portion of the contract price paid, unless the contract expressly provides otherwise
175
grant and convey
use of these conveyancing words give rise to stat implied warranties of good/right to convey
warranty against encumbrances
176
preferential right to purchase
an ok restraint on alienation as long as it is reasonable
177
water-natural flow
can't divert/impose natural flow of surface water in a way that damages property of another
178
groundwater
rule of capture
179
gravel and limestone
surface estate
180
deed must ----- to be valid
deed mus ----- to be recorded
be in writing
signed by grantor
ID a particular grantee (but if it's blank it is presumed the person taking delivery can fill it in)
contain statement of intent to relinquish control
describe property
be delivered
doesn't have to be dated
doesn't have to be for consideration
must be acknowledged before appropriate official or signed/acknowledged in presence of witness pursuant to stat. procedures to be recorded
181
in and under
all o/g, other minerals, in, on, or under and that may be produced
mineral estate
182
produced and served
royalty interest
183
tenant's remedies when landlord effs up
terminate lease and get pro rata refund
repair/deduct from rent
judicial remedies: if issue isn't fixed w/in 7 days of notice get order directing repair, reducing rent, or judgment for 1 month rent and actual damages
184
co tenants and easements
co tenants can't convey or encumber the property that is common between the co tenants w/o the express authority or subsequent ratification
185
shelter rule
P's purchase will be valid even though P is not a BFP b/c the rule that a purchaser from a BFP will take good title even though he is not an innocent purchaser
186
mechanics and materialmans
must be filed no later than 15th day of the 4th calendar month after time the work is completed/abandoned
it will relate back
copy of the lien affidavit must be sent to the both the owner and original contractor no later than 5 days after the lien is filed
187
assignment/sublease
tenant must get the landlord's permission before subleasing/assigning during term of lease
188
landlords and fixtures
landlord can't remove a fixture from leased premises unless removal is for bona fide replacement
189
bankruptcy
stays all debt collection
190
foreclosure notice
min notice that is req to be given regarding the foreclosure of liens against real property in texas is for the protection of debtor
time, date, place of sale
-10-4 and the earliest it could happen
sale will be at courthouse where property located or area designated by commissioner
191
does texas law recognize deed in lieu of foreclosure?
no
192
how much notice before foreclosure
trustee must give 21 days notice before date of sale
193
SoL on liens
4 years for enforcement of liens on real estate, starting on the date of maturity
194
landlord can change the locks
but have to tell him where to get keys and have to give him keys when he pays
