Property (DE Distinctions)

Question 1

Estates in Land: Fee Tail - Impact and Creation

Answer 1

Fee tail’s automatically pass to the owner’s closest lineal descendant upon death of owner. It is created by using language such as “O to A and the heirs of my body.”

Question 2

Estates in Land: Fee Tail - Destruction

Answer 2

The tail can be eliminated at the election of the owner by transferring as a fee by a deed.

Question 3

Estates in Land: Waste - Definition + Application

Answer 3

Waste is a spoil or destruction in land, houses, or trees.

Applies to:

1) life estates,
2) tenants,
3) concurrent owners, and
4) mortgagors

Question 4

Estates in Land: Waste - Which Claims and Brought in Which Court

Answer 4

In Superior Court (for damages), file a writ of waste.

In Chancery Court (for injunction), file a writ of estrepement.

Question 5

Estates in Land: Modified Rules Against Perpetuities in Trusts

Answer 5

Delaware uses WAIT AND SEE for 110 years, meaning if the beneficiary has not been ascertained, the property will transfer to the named beneficiary AFTER 110 YEARS IF: (i) the date on which property is PURCHASED or added to by a trust, or (ii) the date the trust became irrevocable.

Question 6

Estates in Land: Modified Rules Against Perpetuities in Trusts - Exceptions

Answer 6

RAP DOES NOT apply to: 1) personal property held in trusts, 2) Delaware statutory trusts (i.e., business trusts), and 3) charitable trusts.

Question 7

Concurrent Estates: Joint Tenancy Modification of Four Unities

Answer 7

An owner may SELF-CREATE a joint tenancy, meaning it may be created by a transfer from sole owner to himself and others.

Question 8

Concurrent Estates: Tenancy by the Entirety Modification of Unilateral Transfer

Answer 8

In general, a creditor cannot reach a TBE property if debt is owed by only one spouse, UNLESS a FEDERAL TAX LIEN against one spouse attaches.

Question 9

Landlord-Tenant: Self-Help Damages

Answer 9

Eviction is prohibited WITHOUT COURT ORDER, and landlord is liable for the greater of: (i) treble damages, or (ii) 3 times the per diem rent per day of exclusion.

Question 10

Landlord-Tenant: Mutual and Dependent Promise

Answer 10

Promises are mutual and dependent, meaning landlord’s breach relieves tenant’s duty (e.g., to pay rent)

Question 11

Landlord-Tenant: Security Deposits

Answer 11

Security deposit can be required, BUT CANNOT exceed 1 month except for furnished units for a term of less than 1 year.

Question 12

Landlord-Tenant: Unenforceable Contract Terms - Confession of Judgment

Answer 12

A term is unenforceable if a tenant waives notice and hearing in advance to determine if debt is owed.

Question 13

Landlord-Tenant: Unenforceable Contract Terms - Attorney’s Fees

Answer 13

A term is unenforceable if it allows recovery of attorney’s fees

Question 14

Landlord-Tenant: Unenforceable Contract Terms - Exempting Liability

Answer 14

Any provision is unenforceable if it exempts a landlord from liability for damages resulting from acts or omissions

Question 15

Landlord-Tenant: Landlord’s Priority

Answer 15

A landlord is entitled to a priority for the payment of rent UP TO 1 YEAR IN ARREARS over personal property of a tenant seized by any process of execution, attachment, or sequestration.

Question 16

Landlord-Tenant: Anti-Discrimination

Answer 16

Landlord MAY NOT DISCRIMINATE on the basis of race, religion, sex, etc., BUT MAY discriminate IN FAVOR OF SENIORS if consistent with federal and state fair housing act.

Question 17

Landlord-Tenant: Applicability of Landlord Tenant Code

Answer 17

The code applies to RESIDENTIAL LEASES, EXCEPT for the following: (1) locations where residence is incidental to services (e.g., prison, nursing home), (2) fraternal organizations, (3) nonrenewable leases of 120 days or less for certain 100s, and (4) ground leases.

Question 18

Landlord-Tenant: Tenant’s Right of Termination - Benefit of the Bargain

Answer 18

If T is deprived of SUBSTANTIAL PART OF THE BENEFIT OF THE BARGAIN and landlord FAILS TO REMEDY within 15 DAYS after notice, the tenant may terminate the lease.

Question 19

Landlord-Tenant: Tenant’s Right of Termination - Habitability

Answer 19

If the leased premise is UNINHABITABLE and poses an IMMINENT THREAT TO HEALTH, SAFETY, OR WELFARE, tenant may terminate AFTER GIVING NOTICE.

Question 20

Landlord-Tenant: Tenant’s Ability to Repair and Deduct

Answer 20

If L fails to perform any repair WITHIN 30 DAYS after notice or fails to INITIATE corrective measures WITHIN 10 DAYS after notice, tenant may repair & deduct from rent NOT TO EXCEED the lesser of: (i) $400 and (2) one-half of one month’s rent.

Question 21

Landlord-Tenant: Specific Remedies if Lack of Essentials + Impossibility

Answer 21

If Landlord fails to provide HOT WATER, HEAT, WATER, or ELECTRICITY within 48 HOURS after notice of the failure, tenant MAY: (i) terminate, or (ii) keep 2/3 per diem rent

Impossibility of performance IS A DEFENSE available to Landlord (e.g., hurricane).

Question 22

Easements: Test to Enforce Express Easement to Subsequent Owners

Answer 22

Formal requirements for enforceability against successor owners: 1) writing, 2) intent, 3) notice (actual, inquiry, or record)

Question 23

Easements: Implied Easement by Prior Use Elements

Answer 23

The requirements for an easement implied by prior use are: 1) common ownership, later severed, 2) prior use of part of a parcel to benefit another part, 3) visible and obvious, and ***4) necessary, meaning REASONABLY CONVENIENT.

Question 24

Easements: Implied Easement by Necessity - Requirements

Answer 24

The requirements for an easement implied by necessity are:

1) unified ownership,
2) property would be landlocked (no direct access to public road,
3) necessary, meaning needed to gain access

Question 25

Easements: Implied Easement by Prescription - Elements

Answer 25

COA-20: 1) Continuous, 2) Open and Notorious, 3) Adverse, and 4) 20 years

Question 26

Easements: Changes in Use

Answer 26

Changes in the use of land may be found consistent with the scope, but CANNOT BE RELOCATED WITHOUT MUTUAL CONSENT.

Question 27

Easements: Ways to Terminate

Answer 27

1) Merger,
2) Release,
3) For easement by necessity, property gains access to public road,
4) Abandonment (with conduct demonstrating intent, mere non-use is not enough)
5) adverse possession, and
6) Estoppel

Question 28

Covenants: Implied Covenant by Common Scheme

Answer 28

Covenant can be implied if: (1) common plan is established by a unified owner, and (2) multiple conveyances out of a single tract with substantially the same language/restrictions.

Question 29

Covenants: Enforceability of Restrictions by Developers/Associations

Answer 29

Developers and associations MAY reserve the right to approve improvements, SO LONG AS IT IS REASONABLE. The following will be analyzed to determine reasonableness: (1) clear standards OK, (2) absolute discretion NOT OK, (3) just aesthetics NOT OK, and (4) solar panel restrictions NOT OK.

Question 30

Covenants: Termination/Unenforceability

Answer 30

Termination or unenforceability of a covenant may occur by:

1) CHANGED CIRCUMSTANCE, where NO SUBSTANTIAL BENEFIT to enforcement exists, or
2) RELATIVE HARDSHIP (balance the equities - hard to prove)

Question 31

Covenants: Amended

Answer 31

Covenants can be amended by a 2/3 HOA vote

Question 32

Adverse Possession Elements

Answer 32

ECOAH 20:

1) Exclusivity
2) Continuous, meaning frequency
3) Open and notorious, public possession,
4) Actual possession, activities on land,
5) Hostile
6) 20 years.

Question 33

Conveyancing: Default Deed

Answer 33

The default deed in Delaware is the SPECIAL WARRANTY DEED, which states the seller will be liable in title or encumbrances ONLY DURING SELLER’S PERIOD of ownership.

Question 34

Conveyancing: Requirements for a Valid Deed

Answer 34

1) Writing,
2) Describing specific property,
3) Identifying grantor and grantee,
4) signed by grantor, and
5) delivered (with intent)

Question 35

Conveyancing: Non-Essential Deed Components

Answer 35

1) Notarization is not required,
2) a deed need not be made under seal, and
3) no recording as between parties required.

Question 36

Recording: Type of Race Recording Statute

Answer 36

Delaware is a RACE JURISDICTION, meaning first bona fide purchaser to record has priority of title.

Question 37

Lis Pendens: Process for Establishing

Answer 37

To bind the parties, a Notice of Pendency MUST BE FILED AND RECORDED, such notice is effective for 3 years.

Question 38

Lis Pendens: Exceptions

Answer 38

Lis pendens DOES NOT APPLY to mortgage foreclosures or mechanics liens.

Question 39

Mortgages: Criteria for Enforceability

Answer 39

1) Writing,
2) Describe the property,
3) Signed,
4) Delivered,
5) Acknowledged,
* **6) Recorded, a mortgage is NOT VALID until recorded.

Question 40

Lien: Lien Theory

Answer 40

Title to the property remains in the mortgagor (borrower) and passes to his successors in interest subject to the lien.

Question 41

Mortgage: Purchase Money Mortgage Priority Rule

Answer 41

A purchase money mortgage has SUPER PRIORITY, ONLY IF it is recorded WITHIN 10 DAYS after the deed transferring the mortgage is recorded.

Question 42

Mortgage: Modification Impact to Priority

Answer 42

If MATERIAL MODIFICATION is made AFTER the date of recording a second mortgage, the first mortgage becomes junior to the second mortgage.

Question 43

Mortgage: Securing Future Advances

Answer 43

A mortgage may secure future advances if EXPRESSLY stated, the lien status of the debt relates back to the date of recording

Question 44

Mortgage: Securing Future Advances - Cap

Answer 44

The total amount of principal debt secured by a mortgage CANNOT EXCEED a maximum principal amount which MUST be specified in the mortgage.

Question 45

Requirements to Release Mortgage Lien

Answer 45

Release must be signed, sealed, acknowledged, and recorded.

Question 46

Mortgage: Necessary Parties for Foreclosure

Answer 46

1) Mortgagor (borrower),
2) record owners acquiring title,
3) persons having an equitable or legal interest or record, and
4) the United States if there is a tax lien.

Lienholders not of record and tenants of an estate for years or at will MUST BE GIVEN NOTICE, but are not necessary parties.

Question 47

Dedication: How to Dedicate

Answer 47

To create a public street, there must be an OFFER to dedicate and ACCEPTANCE, express or implied.

Question 48

Mechanic’s Lien

Answer 48

A mechanic’s lien is a lien against real estate by a person who supplies labor and/or materials

Question 49

Mechanic’s Lien: Who Can Claim

Answer 49

1) General contractor,
2) Subcontractor,
3) architect, or
4) supplier of materials

Question 50

Mechanic’s Lien: Time for Filing Action (General v. Sub)

Answer 50

General Contractors - must file within 180 days of completion

Subcontractors - must file within 120 days from completion of labor performed.

Question 51

Mechanic’s Lien: Waiver

Answer 51

A waiver of a right to mechanic’s lien IS NOT ENFORCEABLE

Question 52

Mechanic’s Lien: Relation Back (Impact on Priority)

Answer 52

The mechanic’s lien becomes a lien against real estate relating back to the day LABOR BEGAN. Therefore, mechanic’s lien MAY take priority over EARLIER RECORDED INTERESTS if the labor began before the previously recorded interest.

This DOES NOT APPLY to: (i) Purchase Money Mortgages (those have super priority), or (ii) mortgages that secure a loan for which AT LEAST 50% of the loan proceeds are used for the payment of labor (similar to PMM).