Property Flashcards
Fee simple absolute
“To A”
Devisable, descendible, alienable
No future interest
Fee tail (VIRTUALLY NEVER TESTED)
“To A and the heirs of his body”
Passes automatically to grantee’s lineal descendants
Future interest: reversion (if held by grantor); remainder (if held by third party)
Fee simple determinable (NY: fee on limitation)
“To A so long as,” “To A until,”
Alienable, devisable, descendible, subject to condition
Future interest: possibility of reverter (held by grantor)
Fee simple subject to condition subsequent (NY: fee on condition)
“To A, but if X happens, grantor reserves right to reenter and retake”
Alienable, devisable, descendible, subject to condition
Future interest: Right of entry/power of termination (held by grantor)
Fee simple subject to an executory limitation
“To A, but if X occurs, then to B”
Alienable, devisable, descendible, subject to condition
Future interest: shifting executory interest (held by third party)
Life estate
“To A for life” or “To A for life of B”
Alienable, devisable, and descendible if pur autre vie and measuring life is still alive
Future interest: reversion (if held by grantor); remainder (if held by third party)
Definition of devisable:
can it pass by will?
Definition of descendible:
will it pass by the statutes of intestacy if its holder dies intestate (without a will)?
Definition of alienable:
is it transferable inter vivos (during holder’s lifetime)?
Fee simple subjet to condition subsequent: language
Grantor must use clear durational language and carve out the right to re-enter (“To A, but if X occurs, grantor reserves right to reenter and retake”
Defeasible fee requires clear DURATIONAL language
Words of desire, hope, intention are insufficient to create a defeasible fee
General rule on absolute restraints on alienation
VOID. Absolute restraint on alienation is an absolute bar on the power to sell or transfer that is not linked to any reasonable time limdited purpose.
Definition of life estate pur autre vie:
Life estate measured by a life other than the grantee’s
“To A for the life of B”
LIfe estate doctrine of waste: general rule
life tenant must not commit waste (must not do anything to hurt the future interest holders)
General rule of voluntary waste and natural resources:
Life tenant must not consume or exploit natural resources on the property, unless exceptions apply
Exceptions to the general rule of life tenant and voluntary waste: (PURGE)
PU: prior use (life tenant may continue to exploit land if land was exploited before the grant)
R: repairs. Life tenant may consume natural resources for repairs and maintenance
G: grants. Life tenant may exploit if granted the right
E: exploitation (land is suitable ONLY to exploit)
General rule of permissive waste: when land falls into disrepair
Life tenant must maintain the premises in reasonably good repair
Must pay all ordinary taxes on the land to the extent of income from the land (or premises’ fair market value)
General rule of ameliorative waste (MBE)
Life tenant must not engage in acts that will enhance the property’s value, unless all future interestholders are known and consent
General rule of ameliorative waste (NY):
Life tenant may make reasonable improvements unless remaindermen object
3 future interests capable of creation in the grantor:
- possibility of reverter (only fee simple determinable)
- right of entry / power of termination: only fee simple subject to condition subsequent
- reversion
A remainder is VESTED if:
it is both created in an ascertained person and is not subject to any condition
A remainder is CONTINGENT if:
it is created in an unascertained person or is subject to a condition precedent (“To A for life, then to B’s first child”)
When the condition precedent occurs, a contingent remainder automatically transforms into:
an indefeasibly vested remainder
Contingent remainders: if grantor dies before condition precedent occurs,
remainderman still has springing executory interest
O conveys “To A for life, then to A’s heirs”.
A has life estate, A’s unknown heirs have a contingent remainder. O has reversion, since A could die w/o heirs
Doctrine of worthier title (rule against a remainder in grantor’s heirs) (MBE only):
O, who is alive, conveys “To A for life, then to O’s heirs”
The contingent remainder in O’s heirs is void. A simply has a life estate, and O has a reversion
Definition of indefeasibly vested remainder:
Holder of this remainder is certain to acquire an estate in the future, w/ no strings attached
Def. of vested remainder subject to complete defeasance / total divestment
Remainderman exists. No condition precedent. But his right to possession could be cut short because of condition SUBSEQUENT
Def: of vested remainder subject to open:
Remainder is vested in a group of takers, at lest one of whom is qualified to take. But each member’s share is subject to diminution b/c additional takers can join in
“To A for life, then to B’s children”
Vested remainder subject to open: class closes when
any member can demand possession
Def. executory interest
Future interest created in a transferee (third party), which isn’t a remainder and takes effect either by cutting short some interest in another person (“shifting”) or in the grantor or his heirs (“springing”)
Def. shifting executory interest:
Always follows a defeasible fee and cuts short someone other than the grantor
“To A, but if B returns, to B”
NY: difference between executory interests and contingent remainders?
NONE. NY has abolished the distinction. They’re both called remainders subject to a condition precedent
O conveys “To A, if and when he marries.” A is unmarried. A has:
springing executory interest
O has: fee simple subject to A’s springing executory interest
General rule of rule against perpetuities:
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life
RAP potentially applies to these kinds of interests:
contingent remainders, executory interests, and certain vested remainders subject to open
RAP NEVER applies to
any future interests in the grantor
vested interests
RAP: gift to an open class conditioned on the members surviving to an age beyond 21?
Violates the RAP!
Bad as to one, bad as to all. If it is possible that a disposition might vest too remotely w/ even just one class member, the entire class gift is void
RAP: usually, __________ interests violate the RAP
Shifting executory interests
An executory interest w/ no time limit w/in which it must vest violates RAP
“To A so long as land is used for farming, and if it isn’t, to B” VOID
Charity exception for RAP
Gift from one charity to another will not violate the RAP
“Wait and see” / “second look” doctrine (reform of RAP):
Validity of any suspect future interest is determined on the basis of the facts as they now exist, at the end of the measuring life
This eliminates the “what if” line of inquiry
Uniform Statutory RAP:
codifies the CL RAP and provides for alternative 90 year vesting period
Both “wait and see” and USRAP embrace cy pres doctrine:
“As near as possible”
If a given disposition violates the rule, a court may reform it in a way that most closely matches grantor’s intent while complying w/ the RAP
“Wait and see” and USRAP (and NY) reduce offensive age contingency to:
21 years
NY distinction about RAP reform:
NY applies CL RAP, rejects “wait and see” doctrine and cy pres doctrine
Def: joint tenancy
2 or more own w/ the right of survivorship
Def: tenancy by the entirety
protected marital interest b/w married partners w/ right of survivorship
Def: tenancy in common
2 or more own r/ no right of survivorship
Right of survivorship in joint tenancy:
when one joint tenant dies, his share passes automatically to the surviving joint tenant
Creating a joint tenancy. 4 unities: “T-TIP”
Joint tenants must take their interests
T: at the same time
T: by the same title (same instrument)
I: with identical interests, and
P: right to possess the whole
Creating a joint tenancy: in addition to “T-TIP,” grantor must
CLEARLY express right of survivorship (b/c joint tenancies are disfavored)
To create joint tenancy, often a grantor must use
a STRAW (middleman). O conveys to straw, straw conveys back to O and X w/ right of survivorship
How to severe a joint tenancy (“SPAM”):
Sale
Partition
and
Mortgage
When joint tenant sells, even in secret, what does that make the buyer?
it disrupts the four unities, so buyer is a tenant in common
When one joint tenant sells, and there were more than two joint tenants to begin
the joint tenancy remains intact b/w the other, non-transferring joint tenants
When one joint tenant enters into K for sale of his interest to X, his interest…
is severed, from the very beginning of entering into a K
Severance of joint tenancy by partition: 3 kinds:
- Voluntary agreement
- Partition in kind (court action if best interest of all is to divide land)
- Forced sale (ct action if best interest of all is to sell land and divide proceeds proportionally)
Severance of joint tenancy by mortgage: general majority rule (including NY)
lien theory of mortgages. A joint tenant’s execution of a mortgage on his or her interest will not sever the tenancy
How to create tenancy by the entirety
It arises presumptively in any conveyance to married partners unless stated otherwise
Defeating the tenancy by the entirety by unilateral conveyance:
can’t be done! Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a 3rd party
“Can’t touch this”
3 features of the tenancy in common:
- Each co-tenant owns an individual part and each has a right to possess the whole
- each interest is divisible, descendable, and alienable. NO SURVIVORSHIP RIGHTS b/w tenants in common
- Presumption favors the tenancy in common
If one co-tenant wrongfully excludes another co-tenant from possession, he has committed
wrongful ouster
Rent from co-tenant in exclusive possession: general rule
Absent ouster, co-tenant in exclusive possession is not liable to other co-tenants for rent
(rent) A co-tenant who leases all or part of the premises to a third party
must account to his co-tenants, providing them their fair share of the rent income
Generally, a co-tenant cannot acquire title through adverse possession. But the rule in NY:
a co-tenant may acquire title by possession if he is in exclusive possession for 20 continuous years (theory of implied ouster)
A co-tenant who pays to repair premises gets
right to contribution for reasonable necessary repair, so long as she notified the others of the need
A co-tenant who pays to improve the premises gets
NO right to contribution for “improvements”
Def: Tenancy for years
Lease for a fixed period of time. Therefore, no notice is needed to terminate
Def: periodic tenancy
Lease whih continues for successive intervals until L or T gives proper notice of termination
Periodic tenancy can be created expressly. Can also arise by implication, in 3 ways:
- Land is leased w/ no mention of duration, but provision is made for payment of rent at fixed intervals
- Oral term of years in violation of SoF creates implied periodic tenancy measured by the way rent is tendered
- Holdover: in residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease, implied periodic tenancy arises measured by way rent is tendered
To terminate a periodic tenancy, usually written notice must be given. How much notice?
At CL, at least equal to length of the period itself, unless otherwise agreed
But if tenancy is from year-to-year, only 6 months’ notice
Def: Tenancy at will
Tenancy for no fixed duration
Tenancy at will is rare, b/c a payment of regular rent will cause a ct
to treat it as implied periodic tenancy
Tenancy at will may be terminated by
any party at any time, but a reasonable demand to vacate is usually needed
Def: Tenancy at sufferance
Created when T has wrongfully held over past the expiration of the lease. We give wrongdoer a leasehold estate to permit L to recover rent
(NY) L’s acceptance of rent subsequent to the expiration of the term will create:
an implied month-to-month periodic tenancy, unless otherwise agreed
Tenant’s liability to third parties
T is liable for injuries sustained by invitees even where L promised to make all repairs
Tenant’s duty to repair when lease is silent: general standard
T must maintain the premises and make ordinary repairs
Tenant must not commit waste (3 kinds)
Voluntary, permissive, and ameliorative
Law of fixtures: when tenant removes a fixture,
she commits voluntary waste
Definition of fixture (landlord-tenant law)
once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the realty
When tenants install fixtures, do they get to remove them at the end of tenancy?
Agreement controls. But generally, T may remove annexed chattels if removal does not substantially damage the premises or destroy the chattel
When premises are destroyed w/o T’s fault,
T is not liable
When tenant breaches duty to pay rent and is in possession, L’s only options are to
evict through the cts or continue the relationship and sue for rent due
L must NEVER engage in self-help (changing locks, forcibly removing T, etc.)
When T breaches duty to pay rent and is out of possession, L has three options (S-I-R)
Surrender: treat T’s abandonment as an implicit offer to surrender, which L accepts
Ignore abandonment and hold T responsible fr unpaid rent (minority jx)
Re-let premises on wrongdoer tenant’s behalf, hold him liable for any deficiencies
When T breaches duty to pay rent and is out of possession, majority rule (not NY) requires a mitigation principle:
L must at least try to re-let
L’s duty to deliver possession (majority rule):
L must put T in physical possession of the premises.
So if at start of T’s lease a prior holdover T is still in possession, T gets damages
L’s duty: implied covenant of quiet enjoyment
In both residential and commercial leases, T has right to quiet use and enjoyment of the premises, w/o interference from L
L can breach via constructive eviction (SI-N-G)
Substantial Interference: due to L’s actions or failures
Notice: T must notify L of the problem, and L must fail to respond meaningfully
Goodbye: T must vacate
Landlord’s implied warranty of habitability: applies to
residential leases ONLY, not commercial
Standard of landlord’s implied warranty of habitability:
premises must be fit for basic human dwelling
T’s entitlements when implied warranty of habitability is breached (M-R-R-R)
Move out and end the lease
Repair and deduct
Reduce rent, or withhold all rent until ct determines fair rental value
Remain in possession, pay rent, and affirmatively seek $ damages
When tenant transfers lease to another, it’s an assignment. L and T2 are in privity of estate, not K. L and T1:
are no longer in privity of estate, but remain in privity of K (they’re secondarily liable to each other)
In a sublease, L and sublessee are in privity of estate or K?
Neither! Relationship b/w L and T1 remains fully in tact. It’s only ASSIGNMENTS where there is privity of estate b/w L and T2
Def. remainder:
future interest in a 3rd party that can become possessory on the natural expiration of the preceding estate
Difference b/w reverter and right of entry:
Reverter - estate automatically reverts to grantor
Right of entry - grantor may exercise his right of entry, not automatic
Def. executory interest
Future interests in third parties that either divest a transferee’s preceding freehold estate (“shifting interests”), or
follow a gap in possession or cut short a grantor’s estate (“springing interests”)
Do landlords impliedly warrant that premises are free of latent defects?
Generally no. L will be liable only if L knew or had reason to know of the defect or, in the exception, L rents furnished property for a short term
Can a L impose higher rent on a holdover T?
Only if L told T of the higher rent before expiration of the old lease
Generally, in tort, L is under no duty to make premises safe. But 5 exceptions (“CLAPS”)
Common areas (must maintain) Latent defects (must warn T of hidden defects L knows or should know about) Assumption of repairs (if L voluntarily makes repairs, must do so w/ reasonable care) Public use rule (L who leases public space, and who should know about a defect) Short term lease of furnished dwelling
Easement def:
the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement
Is there a natural or automatic right to a negative easement?
No, they can only be created expressly
Def. easement appurtenant
An easement that benefits its holder in his physical use or enjoyment of his prop (dominant tenement gets the benefit, servient tenement bears the burden)
Def. easement in gross
An easement that confers upon its holders only some personal or pecuniary advantage unrelated to his use or enjoyment of his land. There is no benefited/dominant tenement
Ex: right to fish in another’s pond
Can easement appurtenant pass w/ dominant tenement?
Yes, passes automatically! Need not be mentioned in the conveyance
Can easement appurtenant pass w/ servient estate?
Yes, automatically, unless the new owner is a bona fide purchaser w/o notice of the easement
Is easement in gross transferable?
No, not unless it is for commercial purposes
Affirmative easement can be created in 4 ways (“PING”)
Prescription
Implication
Necessity
Grant
Creating an affirmative easement by grant: if easement is for more than 1 year,
it must be in writing
Creating an affirmative easement by implication, general rule:
Ct may imply an easement if previous use was apparent, parties expected it would continue b/c it’s reasonably necessary to the dominant land’s use and enjoyment
Creating an affirmative easement by necessity. Easement of right of way will be implied by necessity if grantor…
conveys a portion of his land w/ no way out except over part of grantor’s remaining land
Creating an affirmative easement by prescription: an easement may be acquired by satisfying the elements of:
adverse possession (continuous use, open/notorious, actual use, hostile use)
Unilateral expansion of an easement:
never allowed
Termination of an easement (“END CRAMP”)
Estoppel Necessity Destruction of the servient land Condemnation of the servient estate Release Abandonment Merger doctrine (title to easement and title to servient land become vested in same person) Prescription (adverse possession)
Termination of easement by abandonment, general rule:
Easement holder must demonstrate by PHYSICAL ACTION the intent to never use the easement again (mere nonuse or mere words is insufficient)
Def. of license:
mere privilege to enter another’s land for a delineate purpose. They are freely revocable, unless estoppel applies to bar revocation
Neighbors talking by the fence: A says to B, “You can have that right of way across my land.” What happens?
Oral easement is unenforceable, violates the statute of frauds. This instead creates a freely revocable license
Covenant def:
promise to do or not do something related to land. It’s a contractual limitation or promise regarding land. MUST be in writing
Is a given promise a covenant or as equitable servitude?
If P seeks money damages, construe at law as covenant
If P seeks an injunction, construe in equity as an equitable servitude
When does covenant run w/ the land? (2 factor analysis)
- Does the burden run? (harder)
2. Do the benefits run? (easier)
Elements necessary for a burden to run w/ the land (“WITHN”)
Writing
Intent (original parties intended that cov would run)
Touch and concern the land (promise affects parties’ relations as land owners)
Horizontal and vertical privity
Notice (of the promise)
Def. of horizontal and vertical privity:
Horizontal: nexus b/w original parties (there is succession of estate, like grantor-grantee, landlord-tenant, mortgagor-mortgagee)
Vertical: non-hostile nexus b/w A and A-1, like K, divise, descent (very easy to show)
Elements necessary for benefits to run w/ land (“WITV”)
Writing
Intent
Touch and concern
Vertical privity
Equitable servitude def:
A covenant that, regardless of whether it runs w/ land at law, equity will enforce against assignees of the burdened land who have NOTICE of the covenant (remedy: injunction)
Elements to create an equitable servitude that will bind successors (“WITN”)
Writing
Intent
Touch and concern
Notice
Implied equitable servitude arises with the common scheme doctrine. Two elements of common scheme doctrine:
- When sales began, seller had a general scheme of covenants restricting his property.
- The defendant buyer, whose deed had no covenant, had notice of the covenants in the prior deeds
Implied equitable servitude - how does defendant have notice of the covenant? (“AIR”)
Actual notice Inquiry notice (neighborhood conforms to common restriction) Record notice (publicly recorded docs)
NY: subsequent buyer does NOT have record notice of contents of prior deeds transferred to others by the common grantor
Changed conditions is a defense to enforcement of an equitable servitude. General rule:
Changed conditions must be so pervasive that the entire area has changed. Mere pockets of limited change are not good enough
Elements of adverse possession:
Continuous use
Open and notorious use
Actual use
Hostile use
Possessor’s subjective state of mind for adverse possession:
MBE: irrelevant
NY: possessor must have a good faith belief that the land he is occupying is indeed his. It is bad faith for claimant to know he is occupying another’s land
Tacking for adverse possession?
One adverse possessor may tack on to his time w/ the land his predecessor’s time, so long as there is privity, satisfied by any non-hostile nexus such as blood, K, deed, will
Tacking not allowed w/ ouster
Adverse possession and disabilities
Statute of limitations will not run against a true owner who is afflicted by a disability at the start (infancy, insanity, imprisonment)
Exception to SOF: doctrine of part performance
Need 2 of following 3:
B takes possession
B pays all or part of the price, and/or
B makes substantial improvement
Then equity will decree specific performance of an oral K for sale of the land
NY: who bears risk of loss for conveyance of prop?
ROL remains w/ seller until buyer has title or takes possession
Two implied promises in every land K:
Seller promises to provide marketable title (no adverse possession, encumbrances, or zoning violations)
Seller promises not to make any false statements of material fact
Does land K have an implied warranty of fitness or habitability?
Neither! Buyer beware
Recording system: if B is a bona fide purchaser, and we are in notice jx,
B wins, regardless of whether or not she records before A does
(Last BFP to enter wins)
Recording system: if B is a bona fide purchaser, and we are in race-notice jx,
B wins if she records properly before A does
To be a BFP, you cannot have notice of another person’s prior purchase of the prop. Must important is inquiry notice:
Whether he looks or not, B is on inquiry notice of whatever an examination of blackacre would show. So if another is actually in possession, B has inquiry notice, regardless of whether he actually inspected
You cannot be a BFP if you are on record notice, meaning:
A’s deed was recorded properly w/in the chain of title
Recording system: shelter rule def:
One who takes from a BFP will prevail against any entity that the BFP would’ve prevailed against (even if he would otherwise fail to receive BFP status)
Recording system: wild deed rule:
If a deed, entered on the records (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence
Recording system: estoppel by deed rule:
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred intent
Equitable mortgage def:
When O hands creditor a deed to blackacre that is absolute on its face rather than executing a note or mortgage deed
Can parties to a mortgage transfer their interests?
Yes, the mortgage automatically follows a proper note
If creditor-mortgagee transfers his interest by endorsing the note and delivering it to transferee, transferee is eligible to become:
a holder in due course. Meaning he takes the note free of any personal defenses that could’ve been raised against original creditor
A holder in due course (creditor-transferee) is free of personal defenses, but still subject to “MAD FIFI” defenses:
Material alteration Duress "Fraud in the factum" (lie about the instrument) Incapacity Illegality Infancy Insolvency
Say O, debtor-mortgagor, sells Blackacre to B. B assumes the mortgage. Who is personally liable on the debt?
Both O and B
B is primarily liable, O remains secondarily liable
Say O, debtor-mortgagor, sells Blackacre to B. B takes “subject to the mortgage.” Who is personally liable on the debt?
B assumes no personal liability. Only O is personally liable
In foreclosure, what if there’s a surplus from proceeds from sale of Blackacre?
Junior liens are paid in order of priority
How does foreclosure affect various interests?
Will terminate interests junior to the mortgage being foreclosed, but will not affect senior interests
Once foreclosure of a superior claim has occurred, w/ proceeds distributed, junior lienholders can no longer look to Blackacre for satisfaction
How to determine priority of interests (i.e. mortgages)?
Once recorded, priority is determined by first in time, first in right
Purchase money mortgage:
Mortgage given to secure a loan that enables the debtor to acquire the encumbered land
PMMs have priority over prior non-PMMs, even if those were recorded first. But subsequent mortgages/liens may defeat PMM priority via recording acts
Equitable redemption def:
At any time prior to foreclosure sale, debtor has the right to redeem the land and free it of the mortgage (payments + interest)
Debtor/mortgage cannot waive the right to redeem… that is clogging the equity of redemption, it’s prohibited
Riparian doctrine rule:
Water belongs to those who own the land bordering the water course.
Each riparian owner has a right to a reasonable use of the water (meaning natural… artificial use like irrigation is less reasonable)
One riparian will be liable if his use unreasonably interferes w/ others’ use
Prior appropriation doctrine rule:
Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he is a riparian owner.
Rights are determined by priority of beneficial use. First in time, first in right
Any productive/beneficial use of water is sufficient to create the appropriation right
May landowner change drainage on his land to combat flow of surface water?
Yes, but some cts have modified the rule to prohibit unnecessary harm to other’s land
Can surface owner use ground water?
Yes, entitled to make reasonable use of ground water. But use must not be wasteful
Delivery of deed: must there be physical transfer of the deed itself?
Not always, just a test of present intent. Ask: did grantor have the present intent to be bound (regardless of whether deed was handed over)?
NOTE: recipient’s express rejection of the deed defeats delivery
General warranty deed def:
Warrants against all defects in title, including those due to grantor’s predecessors.
This is the best deed buyer could get
“A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”
Notice. If B is BFP, he wins
“Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded”
Race-notice statute
To win, B must be BFP and win the race to record
If there is a senior mortgage still existing, does buyer at a foreclosure sale take subject to the mortgage?
Yes, meaning he is NOT personally liable on the senior debt. But the senior mortgage CAN still foreclose on property, so buyer has incentive to pay off first bank’s lien
REMEMBER: foreclosure does not affect any interest senior to the mortgage being foreclosed
Equitable conversion def:
A purchaser of real prop becomes the equitable owner of title to the prop at the time he signs a K to purchase the land at a later date. The ROL is on the buyer
Seller retains legal title to prop prior to conveyance, but land interest is considered personal property (right to payment, not right to prop)
If one co-tenant wrongfully ousts another co-tenant from possession of the premises, ousted co-tenant is entitled to receive:
her share of the fair rental value of the property for the time she was wrongfully deprived
If someone inherits property, is he considered a BFP?
No, b/c he didn’t pay value for it
Easement duration:
PERPETUAL, unless the grant specifically says otherwise
Does misuse of an easement terminate the easement?
NO! Appropriate remedy for servient owner is an injunction against the misuse
Tenancy by the entirety. What happens when one spouse executes a deed or mortgage?
NOTHING, it’s ineffective
If joint tenant mortgages his interest, and then he dies, and bank goes to foreclose:
Nothing! If joint tenant dies before foreclosure, the death extinguishes the mortgagee’s or lienor’s interest
Landlord’s duty to deliver possession of premises is satisfied when:
L puts T in ACTUAL possession of the premises at the beginning of the leasehold term
Assignee and LL are each liable to other on all covenants that “run with the land.” Meaning?
If the covenant touches and concerns the land. I.e. benefits LL and burdens the tenant (or vice versa) with respect to their interests in the property
Oral expression of an intent to abandon an easement: what effect?
None, unless committed to writing (release) or accompanied by action (abandonment)
But if owner changes his position in reasonable reliance on the representations, easement terminates through ESTOPPEL
Every land sale K has implied covenant of marketable title at closing. What constitutes unmarketable?
Encumbrances like mortgages, liens, restrictive covenants, easements, and significant encroachments
Does quitclaim deed contain covenant to provide marketable title?
Yes
Do land sale Ks have warranty of fitness or quality?
No implied warranty of quality or fitness for purpose, UNLESS it’s the sale of a NEW HOUSE
A seller of existing buildings may be liable for:
- Misrepresentation (fraud)
- Active concealment of defect
- Failure to disclose defect if he knows or has reason to know, defect isn’t apparent, and defect is serious and would cause buyer to reconsider
Deed formalities:
In writing
Signed by grantor
Reasonably identify the parties and land
(and delivered and accepted)
Accretion/avulsion belongs to whom?
Accretion (slow deposit of soil on land abutting water) belongs to abutting owner
Avulsion (sudden change of watercourse) doesn’t change ownership rights
When deed grantor retains control:
Indicates a lack of intent to pass title. Thus, no title passes
Valid delivery when grantor gives deed to third party w/ instructions to give it to grantee?
Yes
What if recorder’s office forgets to forget an instrument?
Instrument is considered properly recorded when filed w/ office, even if not properly indexed. Subsequent purchase is considered to have notice (and can sue recorder’s office)
Common enemy theory def:
Owner can take any protective measures to get rid of water (e.g. dikes)… generally can do anything other than unnecessary damage to others’ lands
