Property Flashcards
Joint Tenancy: Creation
unities of time (not anymore) title (not anymore) interest possession → right of survivorship beats will MD: deed must be explicit
Joint Tenancy: Termination
sever: (1) one conveys interest (2) in title state one gets mortgage (3) partition action
Tenancy in Common
unity of possession only NO right of survivorship →can transfer inter vivos (in)voluntarily (default)
Present covenants in a warranty deed
possession (seisin - OJO seller is the owner of the property and has the power to convey the property.???), right to convey, no encumberances (DOES NOT include zoning). OJO! Problem must exist at closing, but can sue later
Future covenants in a warranty deed (MD twist)
quiet enjoyment (not disturbed by superior claim), warranty (assist in defending) (only express, no implied warranties in deed), further assurances (will perfect defects) OJO! Can manifest anytime closing after. ALSO IN MD never implied, have to be express
Statute of Frauds: Land sale Contract
(1) describe property (2) parties (3) price (4) conditions of price/payment (5) signed by D BUT part performance applies
Statute of Frauds: Real Property Deed
(1) ID parties (2) words indicating intent to transfer (3) sufficient description of property (4) grantor’s signature
Requirements for valid conveyance by deed
(1) writing (2) delivery (3) acceptance
Conveyance by deed: Delivery
must show intent: (1) can give it: rebuttable presumption of delivery (2) can give to 3rd party to deliver: relation back to time of first delivery EXCEPT 2+ conditions. Death escrow will defeat a will unless there is a right to reclaim. OJO delivery happens at the moment gives to a 3rd party b/c has present intent. creates “springing future interest” in the grantee, making delivery irrevocable.
Conveyance by deed: Acceptance
Presumed if to the benefit of the grantee. OJO if grantee rejects but there was a future estate in someone else, grantee has no right to reject that future interest.
Wild Deed
Where B transfers land he does not own to X, no one can find that deed, it doesn’t count for constructive notice. ALSO look for two conveyances where the first was not recorded. O-A, A-B (recorded), O-C. C can’t find the A-B conveyance so no notice.
Estoppel by deed
Where B transfers land he does not own to X, then later acquires the land, he is later estopped from denying X the deed. OJO! If B subsequently transferred to a BFP before X goes to court, BFP wins regardless of recording.
Shelter Rule
subsequent purchanser can shelter under grantor’s title where owner conveys to two people
Deed of trust
3rd party holds interest in land until debt of owner paid to creditor (instead of mortgage)
Installment Land Sale Contract
Buyer pays in installments, Seller holds deed until pays all –> if buyer defaults, seller keeps land and all payments thus far OJO scrutiny of “time is of the essence” clauses
Mortgages: Title theory
mortgagee (bank) gets legal title – right to take possession, rents, profits (though mortgagor retains possession until default)
Mortgages: Lien theory
mortgagor (owner) retains legal and equitable title, retains rights to possession, rents, profits until foreclosure
Mortgages: Intermediate theory
lien theory until default (mortgagor has title), title theory after default (mortgagee gets everything)
Deed in lieu of foreclosure
mortgagOR issues a deed that satisfies debt, JR holders not wiped out, mortgagEE takes subject to all liens
Priority in foreclosure
Purchase money mortgage -> JR mortgages -> modified SR mortgages where modifications materially prejudice JRs -> judgment creditors. Junior interests are generally extinguished when the property is sold at a foreclosure sale. OJO! if the junior interest holder is not 1. made a party in the judicial proceedings for the foreclosure and 2. is not provided notice of the foreclosure sale, its interests will not be extinguished.
Transfer “subject to” vs. “assuming” a mortgage
“assuming” the mortgage makes the transferEE personally liable for the mortgage. In either case, the mortgagee can foreclose.
Requirements for Adverse Possession
Actual Continuous Open/Notorious Adverse Exclusive. needs color of title/claim of right without permission. continuity may include tacking if in privity and seasonal if appropriate. OJO not in light and air.
Adverse Possession Tolled
infancy, incapacity, incarceration @ time of entry -> 3 yrs from end of disability or rest of SoL whichever longer
Creating an easement
(1) express in writing
(2) by implication prior use (affirmative only) (a) severance of common ownership (b) existing apparent continuous use at severance (quasi) (c) reasonable necessity for dominant
(2) by implication necessity (affirmative only) (a) severance (b) strict necessity
(3) prescription (affirmative only) adverse possession: ACOASE
(4) estoppel: justifiable reliance by dominant estate on representation of servient
Terminating an easement
(1) common ownership (merger) (2) abandonment: stop use AND words/conduct showing intent (3) servient eminent domain (4) destruction NOT by servient intentional (5) written release OJO! SoF (6) estoppel (7) severance from dominant estate (8) prescription (9) end of necessity (10) purchase of servient estate by BFP
Profits
Right to go onto land and take from. Created expressly or by prescription, Termination the same. IF fee simple or life estate = real property interest for Takings analysis.
Licenses
right to use. personal not real property so no SoF, freely revocable EXCEPT when coupled with an interest OR estoppel
Covenants that run with land
PINT (1) writing SoF (2) touch & concern (3) intent to run incl inc/decrease in value (4) notice (servient side only) (5) privity (a) horizontal of K: grantor/ee, mortgagor/ee, LL/T, only for burden to run
(b) vertical of estate, required for burden to run, only if servient estate transfers all interest that have, dom can be part -> get damages!
Equitable servitude
(1) T&C (2) Intent (3) Notice NO PRIVITY. (4) Writing except if implied reciprocal servitude if (1) part of common scheme of development (2) current servient owner must have taken with notice –> only injunction :(
Lateral support rights
neighbor strictly liable if excavation causes subsiding. IF subsiding land has an improvement and improvement played a rule, only liable if negligent
Subjacent support rights
mineral rights owner strictly liable if causes subsiding of natural land or improvements that were there at rights granting. IF subsequent improvements exist, mineral rights owner liable only if negligent
Termination of tenancy at will
death, T wastes, T assigns interest, LL transfers interest, LL transfers premises for term of years
Tenant’s defenses
(1) failure to deliver possession (2) eviction (3) surrender (4) destruction of premises (5) offsets
Actual eviction
T physically removed from all or part -> pay no rent
Constructive eviction
implied covenant of quiet enjoyment substantially interfered with by LL or LL’s agent. T must actually move out. If partial, only a rent abatement and has to pay proportional rent
Fee simple determinable
durational language
Fee simple subject to a condition subsequent
conditional language, with express reservation of right to reenter
Fee simple subject to an executory interest
either durational or conditional but goes to 3rd party, not the grantor
Possibility of reverter
grantor’s future interest with a fee simple determinable -> created automatically, happens automatically
Right of reentry
grantor’s future interest with a condition subsequent -> can be created if spelled out, then has to retake. if not spelled out, can sue in K
Reversion
any interest that goes back to grantor that isn’t a possibility of revereter or right of reentry
Shifting executory interests
shifts from one 3rd party to another
Springing executory interest
springs from original owner to 3rd party
Remainder
follows naturally from another estate, no cutting short e.g. after life estate
Waste
(1) voluntary: intentionally or negligently damages property (2) permissive: ommision to act to maintain (life tenant/T has duty to maintain) (3) ameliorative: improvements allowed only if (a) mkt value not impaired AND (b) permission of remaindermen OR (c) change to property/neighborhood justified -> vested remaindermen can sue for damages
Restraints on alienation
(1) total: not enforceableon a fee, upheld if reasonable on a life or term estate (2) partial: purchase options and right of first refusal allowed if reasonable OJO must be in writing, SoF
Rule Against Perpetuities
Must vest 21 years after some measuring life. Applies to (1) executory interest (2) contingent remainder (3) vested remainder subject to open (4) purchase option (5) right of first refusal
Oral border agreement
IF (1) owners of adjacent parcels are uncertain of the true boundary(2) actual taking (and relinquishing) of possession following the agreement to evidence that agreement. (3) Some courts require that the new, agreed-upon boundary be marked by a fence or monuments -> does not involve a transfer of interest in land
Implied Warranty of Marketable title (MD twist)
In EVERY land sale K. That the title is reasonably free from doubt in fact and law. Doubts include: defect in chain of title, encumbrances, significant encroachment, existing zoning violations, mortgages (defects in title), by adverse possession w/o quiet title action. (BUT in MD AP title is good) OJO! Only good the day of the closing! AND seller can use proceeds to pay off encumberances if enough.
Scope of easements
What was in reasonable contemplation of the parties. Can sue for damages but doesn’t terminate. Owner of easement has duty to repair/maintain, owner of servient estate has NO such duty. After maintenance, owner of servient estate has right to reasonable restitution for any damage caused by repairs but NOT to total restoration.
Life estate pur autre vie
life estate pur autre vie is a freehold estate where the duration is measured by the life of someone other than the grantee. Can be inherited by grantee’s heirs.
LLT: Assignment v. Sublease
Assignment transfers all rights and duties, so former tenant no longer liable
Marketable Title Act
A marketable title act provides a “cut-off” point, which limits the time period during which a subsequent purchaser is required to search the records. The cut-off point is fixed by identifying a deed that has been of record for the required period, which is usually 30 or 40 years. Any interest that is not recorded or refiled within the required period is extinguished.
Duty to disclose material latent defects
On commercial developers and new residential homes. A material defect: affect the health and safety of occupants. MATERIAL: Objectively: whether a reasonable person would attach importance to the defect in determining whether to purchase the home. Subjectively: whether the defect actually affected the value of the property to the buyer. DEFECT: means a physical defect on the property, but some states extend this to non-physical defects, such as noise from neighbors.
Deeds and Agency Power
Power to convey property DOES NOT include power to convey warranties in a general/specific warranty deed, need specific authorization. “As if it were his own” is sufficient.
Foreclosure and prescriptive easements
OJO notice only to those with recorded title. BUT easements don’t have to be recorded to hold sway.
Landlord duties to maintain
ONLY 1. common areas 2. if LL knows there’s a defect not known to T 3. if knows T will hold open to public?
Warranty of habitability
(residential only) if premises not habitable -> T doesn’t have to move out, must give notice and allow LL reasonable time to fix. If not, can fix and offset agst rent
Doctrine of equitable conversion
in a land sale K, equitable title passes to the buyer as soon as K signed (and before closing) so risk of loss is on the buyer. OJO if the seller does have insurance and there’s recovery, must give to buyer.
Contingent Remainder
A contingent remainder is a future interest that is created in favor of unborn or otherwise unascertained persons or is subject to an express condition precedent.
Tenancy by Entirety
Same as joint tenancy except attempt to sell is wholly void
