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Real Property > Property > Flashcards

Property Flashcards

1
Q

Name the two present estates

A

fee simple absolute (determinable or condition subsequent) or life estate

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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–

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3
Q

Name the future estates held by a third party grantee (2)

A

Remainder and Executory Interest

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4
Q

Characteristics of Fee Simple Absolute (4)

A
  1. Present Estate
  2. Runs forever
  3. No restraints on transfer of ownership (any attempt is void)
  4. Presumption: courts presume this unless language has clear intent to make something else
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5
Q

Right of First Refusal and Conditions on Present Estates

A

Ok, as long as they don’t limit the right to transfer

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6
Q

Fee Simple Determinable

language indicating (4) and what it matches up with

A

Language:

  1. so long as/as long as
  2. while
  3. during
  4. until….something happens

Goes with possibility of reverter

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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)

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8
Q

Fee Simple on Condition Subsequent

language indicating (3) and what it matches up with

A

Language:

  1. Provided/however
  2. But if/if
  3. Upon condition that

*not ‘for the purpose of’

Goes with Right of Re-entry (aka power of termination)

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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

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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

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11
Q

Life Estate Pur Autre Vie

A

life estate measured by the life of someone else

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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

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13
Q

Class Gifts Characteristics (4)

A
  1. Gifts to a class of unnamed people
  2. 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
  3. Class stays open: to accommodate those who later meet class definition
  4. Rule of Convenience: class closes when any member is entitled to distribution (unless grantor says otherwise)
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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

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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

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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

  1. Vested Remainder
  2. Vested Remainder Subject to Open/Partial Divestment
  3. Contingent Remainder
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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)

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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

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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
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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

  1. Springing: operates by taking title from grantor and giving it to grantee
  2. Shifting: operates by taking title from one grantee and giving it to another grantee
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21
Q

List 3 kinds of waste

A

Voluntary Waste
Permissive Waste
Ameliorative Waste

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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

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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

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24
Q

Permissive Waste

A

life tenant fails to maintain.

must do 3 things to avoid permissive waste:

  1. Repair: ordinary repairs, not replacement
  2. Taxes: pay all taxes on property (holder of future interest must make sure they are paid or will lose rights in tax sale)
  3. Interest: life tenant pays interest on mortgage (holder of future interest pays the principle)
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25
Q

Ameliorative Waste

A

affirmative act of life tenant that alters the property substantially (but increases value of estate)

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26
Q

Changed Conditions Exception to Ameliorative Waste

A

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)

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27
Q

RAP Applies to (5):

A 
Contingent Remainders
Vested Remainders Subject to Open
Executory Interests 
Powers of Appointment 
Right of First Refusal/Options
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28
Q

RAP Rule

A

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?)

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29
Q

RAP Exception: Perpetuity Savings Clause

A

saves a grant from RAP by making sure it will vest w/in the time period of the rule

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30
Q

RAP Exception: Charity to Charity

A

RAP is never violated if the gift over is from one charity to another

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31
Q

RAP and Class Gifts

A

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

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32
Q

RAP and Unborn Spouse

A

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

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33
Q

Important Time for Deed and Will for RAP

A

Deed: look at the time the deed was made
Will: look at the situation at time of testator’s death

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34
Q

Characteristics of Joint Tenants (3)

A
  1. concurrent ownership
  2. right of survivorship
  3. right to partition by any joint tenant (destroys joint tenancy)
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35
Q

4 Unities Required for Creation of joint tenants

A

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

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36
Q

Language Required for Joint Tenancy

A

must clearly create joint tenancy b/c the presumption is tenancy in common

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37
Q

Destruction of Joint Tenancy

A

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)

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38
Q

Texas and Joint Tenants

A

no common law joint tenants, only tenants in common. but can create contractual right of survivorship

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39
Q

Tenants in Common Characteristics (4)

A
  1. concurrent ownership
  2. right to partition by any tenant
  3. no right of survivorship
  4. the presumptive tenancy if wording isn’t clear
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40
Q

Unity Required to Create a Tenancy in Common

A

possession: all must have identical rights of possession

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41
Q

List 3 Rights/Duties between Co-Owners

A

Possession
Accountability
Contribution

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42
Q

Possession as a right/duty between co-owners

A

each has a right to possess all the property consistent with other co-tenants

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43
Q

Accountability as a right/duty between co-owners

A

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
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44
Q

Contribution as right/duty between co-owners

A

must pay their share of:

  • mortgage on property signed by all co-tenants
  • gov. imposed obligations (taxes, assessment for streets, sewers, etc.)
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45
Q

Title Theory v. Lien Theory for Mortgages

A

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
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46
Q

List 4 Landlord/Tenant (aka Non-Freehold) Estates

A

Tenancy for Years
Periodic Tenancy
Tenancy at Will
Tenancy at Sufferance

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47
Q

Tenancy for Years

A

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

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48
Q

Periodic Tenancy

A

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.

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49
Q

4 Ways to Create a Periodic Tenancy

A
  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
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50
Q

Tenancy by Will

A

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
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51
Q

Tenancy at Sufferance

A

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
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52
Q

Raised Rent and the Holdover Tenant

A

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

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53
Q

3 Duties of Tenant

A
  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)
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54
Q

If Premise Destroyed, Not by Tenants Fault

A

tenant can terminate the lease is premise is destroyed w/o his fault

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55
Q

Landlord Remedies if Tenant Doesn’t pay Rent

A

can sue for both damages and to throw him off the property

can deduct rent from security deposit

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56
Q

Landlord Remedies if Tenant unjustifiably Abandons Property

A
  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)
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57
Q

List 3 Landlord Duties

A
  1. Give actual possession
  2. implied warrant of habitability
  3. implied covenant of quiet enjoyment
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58
Q

Implied Warranty of Habitability

A

Landlord duty to tenant

landlord must provide property reasonably suited for residential use (basic necessities to be habitable)

Can’t be waived

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59
Q

If Landlord breaches implied warranty of habitability

A

tenant has 2 options:
1. move out and end lease

  1. stay and sue for damages
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60
Q

Texas and Implied Warranty of Habitability

A

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

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61
Q

Ways Landlord can breach Implied Covenant of Quiet Enjoyment (4)

A
  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
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62
Q

Three Requirements for Constructive Eviction

A
  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
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63
Q

Rent Acceleration Clauses

A

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

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64
Q

Landlord Duties of Care (6) –aka Tort Liability

A

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
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65
Q

Assignment v. Sublease

A

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

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66
Q

Texas: Right to Assign/Sublease

A

In Texas, no right to assign/sublet unless landlord gives permission (unless the lease says otherwise)

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67
Q

Non Assignment/Non Sublease Clause in Lease

A

valid/enforceable but construed narrowly–a non assignment clause doesn’t also prohibit sublease and vice versa

Violation: voidable at landlord option

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68
Q

If Landlord gives permission for assignment/sublease contrary to clause in lease

A

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)

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69
Q

In Assignment who can Landlord sue for rent?

A

Under the contract, landlord can sue the original tenant

under the privity of estate, landlord can sue the person in possession

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70
Q

In Assignment, if there are successive landlords, who can tenant sue?

A

the original landlord under privity of contract and current landlord under privity of estate

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71
Q

In Subleases, who is liable for the rent?

A

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)

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72
Q

Full and Partial Condemnation by State

A

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

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73
Q

What is a Fixture?

A

chattel that can’t be removed from property b/c it has become so affixed to property that it is a part of it

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74
Q

How to Determine if Something is a Fixture (4 steps of intent)

A

(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)
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75
Q

If something Isn’t a Fixture, when can it be removed?

A

Before the end of the lease or before closing–wait until after and it must stay

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76
Q

Easement (characteristic and 2 types)

A

non possessory interest in land, involving right of use

  1. Easement Appurtenant
  2. Easement in Gross

must comply with SoF

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77
Q

What is an Easement Appurtenant

A

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
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78
Q

What is an Easement in Gross

A

an easement that doesn’t involve a dominant estate

ex: utility easement (power lines, trains)

79
Q

List 3 ways to create an Easement

A
  1. Express Easement
  2. Easement by Implication
  3. Easement by Prescription
80
Q

Express Easement

characteristics and 3 requirements

A

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
Q

Easement by Implication

2 situations where it arises

A

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
Q

Easement by Prescription

A
  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
Q

Transferring the Benefit of an Easement

A

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
Q

Transferring Burden of an Easement

A

needs notice to subsequent holder

85
Q

Presumptions if Easement is Silent on Length/Use (2):

A
  1. easement is perpetual

2. use is that of a reasonable development of dominant estate (reasonable/likely contemplated by parties)

86
Q

Who can Use the Easement?

A

only the dominant estate holder (not random people, not his friends-that would be excessive use)

87
Q

Remedy for Excessive Use of Easement (Surcharge)

A

enjoin the excessive use, get injunction and damages-not terminate the easement

88
Q

Repair of Easements

A

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
Q

6 Ways to Terminate Easement

A
  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
Q

Licenses Characteristics

A

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
Q

Attempted Easement fails b/c of SoF

A

creates an irrevocable license

92
Q

Profits

A

right to go onto land to take natural resource

  • also implied easement to go on land to get resource
  • follows easement rules
93
Q

PUblic Easement by Prescription

A

on private land, the public can get easement by prescription
-same elements but doesn’t have to be exclusive

94
Q

Covenant Running w/Land at Law (aka Restrictive Covenant Enforced at Law)

(4 requirements)

A
  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
Q

Privity Required for the Burden of Covenant Running with land

A

for a burden to run against the successor in interest there must be:

  • horizontal privity
  • vertical privity
96
Q

Privity Required for the Benefit of Covenant Running with Land

A

for benefit to run in favor of the successor of interest there must be:
-vertical privity

97
Q

Equitable Servitudes (Restrictive Covenants enforced in equity)

(3 requirements)

A

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
Q

Subdivisions and Mutual Right of Enforcement

aka reciprocal negative servitudes

A

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
Q

Equitable Defenses to Enforcement of Equitable Servitudes (5)

A
  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
Q

Adverse Possession

6 elements: HELUVA

A
  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
Q

Statutory Period for AP

1 general, 4 different for Texas

A

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
Q

Constructive AP

characteristics and 2 requirements

A

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
Q

Leasing Land and AP

A

leasing to someone when you don’t really own the land qualifies as possessing it for AP purposes

104
Q

2 main things NOT required for AP

A
  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
Q

AP against Concurrent Owners

A

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
Q

AP and Future Interests

3 main situations

A
  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
Q

Tacking and AP

A
  • 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
Q

Types of Disability

in gen, and in Texas

A

In general:

  • minor
  • insane
  • jail

Texas:

  • minor
  • armed forces
109
Q

How Disabilities Affect AP in General

A
  • 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
Q

How Disabilities Affect AP in Texas

A

max tolling pd for disabilities is 25 years (after that the clock will start even if the disability doesn’t go away)

111
Q

Can you AP government land?

A

nope

112
Q

What are the Two Steps in the Conveyancing of Land?

A
  1. first the contract of sale

2. at the closing, the deed

113
Q

What is Required for a Contract of Sale (of land)

5 general requirements

A

-governed by all regular contract rules plus

  1. SoF
    - in writing
    - description of property
    - name of parties
    - price
114
Q

Part Performance (as an exception to the SoF for a Contract of Sale of land)

A

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
Q

Risk of Loss After Contract (but before closing)

A

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
Q

If one party dies before closing (but after the contract)

A

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
Q

Requirement of Marketable Title

what that means and 3 things seller must give buyer

A

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
Q

3 Things NOT considered an encumbrance to title:

A
  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
Q

Time for Performance with Land Sales

A

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
Q

Remedies for Buyer if Seller’s Title is Unmarketable

2 steps, 3 remedies

A
  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:
  3. recession: buyer walks
  4. damages: sue for breach
  5. specific performance: take what seller can give and reduce price
121
Q

AP and Covenants on Land

A

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
Q

How to be able to Sell a Piece of Land you AP’ed

A

have to go to the court and quiet title so you have a good/marketable title

123
Q

If Buyer takes land w/o title problems being cured:

A

no recouse against seller based on the contract, any action must be based on what’s in the deed

124
Q

Remedies for Breach of the Sales Contract

A
  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
Q

If there are defects on the property

A

gen: caveat emptor
exceptions: seller must disclose serious defects that seller knows and aren’t obvious to buyer

126
Q

Implied Warranty of Fitness/Merchantability

A

for new homes being sold by builder/manufacturer

127
Q

Deed (step 2 of conveyance) and idea of merger

A

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
Q

List 2 Requirements for passage of the legal title from seller to buyer

A
  1. execution of the deed

2. delivery of the deed

129
Q

Execution of the Deed

A

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
Q

Delivery of the Deed

A

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
Q

Conditional Delivery of Deed

A

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
Q

Oral Conditions on Delivery of Deed

A

ex: deed says from O to A but O tells A ‘this is only if you marry my kid’

condition completely disregarded

133
Q

Conditional Delivery of Deed, on Grantee Paying Purchase Price

A

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
Q

Acceptance and Consideration for Deed Delivery

A

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
Q

General Warranty Deed has 6 promises regarding title (present and future)

A

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
Q

Damages for Breach of Covenant

A

Damages for Breach of Warranty: P can get purchase price received by warrantor + incidental damages

137
Q

Estoppel by Deed

A

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
Q

List Three Recording Acts

A
  1. Notice Act
  2. Race Notice
  3. Pure Race
139
Q

Notice Act (one of the recording acts)

A

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
Q

Race Notice (one of the recording acts)

A

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
Q

Pure Race (one of the recording acts)

A

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
Q

List 3 types of notice

A
  1. actual
  2. record
  3. inquiry
143
Q

BFP

A

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
Q

Shelter Rule

A

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
Q

Wild Deeds

A

deeds recorded outside the chain of title (recorded too late)

don’t give notice

146
Q

Security Interest (characteristic, 3 types)

A

device that is used to secure a loan on real property

  1. Mortgage
  2. Deed of Trust
  3. Installment Land Contracts
147
Q

Mortgage (type of security interest)

A

given by debtor (mortgagor) to creditor (mortgagee) and if mortgage isn’t paid the sheriff sells land at foreclosure

148
Q

2 Random things that are Considered Mortgages

A
  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
Q

Deed of Trust (type of security interest)

A

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
Q

Installment Land Contract (type of security interest)

A

debtor signs contract promising to make payment and seller keeps title until the loan is paid off (completely)

Texas: Contract for Deed

151
Q

Right of Redemption (for mortgage and deed of trust b/c they can be foreclosed on)

A

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
Q

Statutory Right of Redemption (for mortgage and deed of trust)

A

in some states

lets the mortgagor get the property back after the foreclosure sale by paying foreclosure sale price

153
Q

Priorities if Land has Multiple Mortgages

A

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
Q

If Owner Increases a Senior Mortgage

A

ex: taking out more money or increasing the interest rate

mortgage loses priority over junior one to extent of change only

155
Q

Texas and Mechanics/Materialmens Liens (MML)

characteristics and 3 requirements to perfect

A

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

  1. affidavit has:
    - amount of claim
    - name/address of relevant ppl
    - genearl statement of work done
    - materials furnished
    - legal description of property
  2. 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
Q

What Interests does Foreclosure Wipe Out?

A

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
Q

Order to Dispense Foreclosure Proceeds

A
  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
Q

When Foreclosure Money isn’t Enough

A

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
Q

Consequences of Installment Land Contract (a security interest)

A

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
Q

Transfer of Security Interest

A

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
Q

Due on Sale Clause

A

if mortgagor transfers w/o mortgagee’s consent, full amount of loan is immediately due

clause enforced

162
Q

Fixture Filing

A

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
Q

Right of Lateral Support

A

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
Q

Right of Subjacent Support

A

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
Q

Riparian Water Rights

A

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
Q

Prior Appropriation

A

western states, minority

first in time takes: anyone who makes beneficial use of water has right to continue use

167
Q

Texas and Water Rights

A

permit regulatory system w/ prior appropriation being main factor

168
Q

Water Under the Ground (aka percolating, well or ground water)

A

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
Q

Surface Water (runoff or flood water)–2 theories

A

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
Q

How do you qualify land as your homestead?

A

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
Q

Rural and Urban Homesteads

A

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
Q

2 Kinds of Debts that can force Sale of Homestead

A
  1. Taxes: always vulnerable to sale if unpaid taxes on property
  2. Loans Tied to Property: buying, financing, improving, home equity
173
Q

Texas Real Estate Broker and Stuff

A

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
Q

vendor and purchaser risk act

A

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
Q

grant and convey

A

use of these conveyancing words give rise to stat implied warranties of good/right to convey

warranty against encumbrances

176
Q

preferential right to purchase

A

an ok restraint on alienation as long as it is reasonable

177
Q

water-natural flow

A

can’t divert/impose natural flow of surface water in a way that damages property of another

178
Q

groundwater

A

rule of capture

179
Q

gravel and limestone

A

surface estate

180
Q

deed must —– to be valid

deed mus —– to be recorded

A

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
Q

in and under

all o/g, other minerals, in, on, or under and that may be produced

A

mineral estate

182
Q

produced and served

A

royalty interest

183
Q

tenant’s remedies when landlord effs up

A

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
Q

co tenants and easements

A

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
Q

shelter rule

A

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
Q

mechanics and materialmans

A

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
Q

assignment/sublease

A

tenant must get the landlord’s permission before subleasing/assigning during term of lease

188
Q

landlords and fixtures

A

landlord can’t remove a fixture from leased premises unless removal is for bona fide replacement

189
Q

bankruptcy

A

stays all debt collection

190
Q

foreclosure notice

A

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
Q

does texas law recognize deed in lieu of foreclosure?

A

no

192
Q

how much notice before foreclosure

A

trustee must give 21 days notice before date of sale

193
Q

SoL on liens

A

4 years for enforcement of liens on real estate, starting on the date of maturity

194
Q

landlord can change the locks

A

but have to tell him where to get keys and have to give him keys when he pays

Real Property (2 decks)

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