Property (DE Distinctions) Flashcards
Estates in Land: Fee Tail - Impact and Creation
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.”
Estates in Land: Fee Tail - Destruction
The tail can be eliminated at the election of the owner by transferring as a fee by a deed.
Estates in Land: Waste - Definition + Application
Waste is a spoil or destruction in land, houses, or trees.
Applies to:
1) life estates,
2) tenants,
3) concurrent owners, and
4) mortgagors
Estates in Land: Waste - Which Claims and Brought in Which Court
In Superior Court (for damages), file a writ of waste.
In Chancery Court (for injunction), file a writ of estrepement.
Estates in Land: Modified Rules Against Perpetuities in Trusts
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.
Estates in Land: Modified Rules Against Perpetuities in Trusts - Exceptions
RAP DOES NOT apply to: 1) personal property held in trusts, 2) Delaware statutory trusts (i.e., business trusts), and 3) charitable trusts.
Concurrent Estates: Joint Tenancy Modification of Four Unities
An owner may SELF-CREATE a joint tenancy, meaning it may be created by a transfer from sole owner to himself and others.
Concurrent Estates: Tenancy by the Entirety Modification of Unilateral Transfer
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.
Landlord-Tenant: Self-Help Damages
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.
Landlord-Tenant: Mutual and Dependent Promise
Promises are mutual and dependent, meaning landlord’s breach relieves tenant’s duty (e.g., to pay rent)
Landlord-Tenant: Security Deposits
Security deposit can be required, BUT CANNOT exceed 1 month except for furnished units for a term of less than 1 year.
Landlord-Tenant: Unenforceable Contract Terms - Confession of Judgment
A term is unenforceable if a tenant waives notice and hearing in advance to determine if debt is owed.
Landlord-Tenant: Unenforceable Contract Terms - Attorney’s Fees
A term is unenforceable if it allows recovery of attorney’s fees
Landlord-Tenant: Unenforceable Contract Terms - Exempting Liability
Any provision is unenforceable if it exempts a landlord from liability for damages resulting from acts or omissions
Landlord-Tenant: Landlord’s Priority
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.
Landlord-Tenant: Anti-Discrimination
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.
Landlord-Tenant: Applicability of Landlord Tenant Code
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.
Landlord-Tenant: Tenant’s Right of Termination - Benefit of the Bargain
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.
Landlord-Tenant: Tenant’s Right of Termination - Habitability
If the leased premise is UNINHABITABLE and poses an IMMINENT THREAT TO HEALTH, SAFETY, OR WELFARE, tenant may terminate AFTER GIVING NOTICE.
Landlord-Tenant: Tenant’s Ability to Repair and Deduct
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.
Landlord-Tenant: Specific Remedies if Lack of Essentials + Impossibility
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).
Easements: Test to Enforce Express Easement to Subsequent Owners
Formal requirements for enforceability against successor owners: 1) writing, 2) intent, 3) notice (actual, inquiry, or record)
Easements: Implied Easement by Prior Use Elements
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.
Easements: Implied Easement by Necessity - Requirements
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
Easements: Implied Easement by Prescription - Elements
COA-20: 1) Continuous, 2) Open and Notorious, 3) Adverse, and 4) 20 years
Easements: Changes in Use
Changes in the use of land may be found consistent with the scope, but CANNOT BE RELOCATED WITHOUT MUTUAL CONSENT.
Easements: Ways to Terminate
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
Covenants: Implied Covenant by Common Scheme
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.
Covenants: Enforceability of Restrictions by Developers/Associations
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.
Covenants: Termination/Unenforceability
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)
Covenants: Amended
Covenants can be amended by a 2/3 HOA vote
Adverse Possession Elements
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.
Conveyancing: Default Deed
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.
Conveyancing: Requirements for a Valid Deed
1) Writing,
2) Describing specific property,
3) Identifying grantor and grantee,
4) signed by grantor, and
5) delivered (with intent)
Conveyancing: Non-Essential Deed Components
1) Notarization is not required,
2) a deed need not be made under seal, and
3) no recording as between parties required.
Recording: Type of Race Recording Statute
Delaware is a RACE JURISDICTION, meaning first bona fide purchaser to record has priority of title.
Lis Pendens: Process for Establishing
To bind the parties, a Notice of Pendency MUST BE FILED AND RECORDED, such notice is effective for 3 years.
Lis Pendens: Exceptions
Lis pendens DOES NOT APPLY to mortgage foreclosures or mechanics liens.
Mortgages: Criteria for Enforceability
1) Writing,
2) Describe the property,
3) Signed,
4) Delivered,
5) Acknowledged,
* **6) Recorded, a mortgage is NOT VALID until recorded.
Lien: Lien Theory
Title to the property remains in the mortgagor (borrower) and passes to his successors in interest subject to the lien.
Mortgage: Purchase Money Mortgage Priority Rule
A purchase money mortgage has SUPER PRIORITY, ONLY IF it is recorded WITHIN 10 DAYS after the deed transferring the mortgage is recorded.
Mortgage: Modification Impact to Priority
If MATERIAL MODIFICATION is made AFTER the date of recording a second mortgage, the first mortgage becomes junior to the second mortgage.
Mortgage: Securing Future Advances
A mortgage may secure future advances if EXPRESSLY stated, the lien status of the debt relates back to the date of recording
Mortgage: Securing Future Advances - Cap
The total amount of principal debt secured by a mortgage CANNOT EXCEED a maximum principal amount which MUST be specified in the mortgage.
Requirements to Release Mortgage Lien
Release must be signed, sealed, acknowledged, and recorded.
Mortgage: Necessary Parties for Foreclosure
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.
Dedication: How to Dedicate
To create a public street, there must be an OFFER to dedicate and ACCEPTANCE, express or implied.
Mechanic’s Lien
A mechanic’s lien is a lien against real estate by a person who supplies labor and/or materials
Mechanic’s Lien: Who Can Claim
1) General contractor,
2) Subcontractor,
3) architect, or
4) supplier of materials
Mechanic’s Lien: Time for Filing Action (General v. Sub)
General Contractors - must file within 180 days of completion
Subcontractors - must file within 120 days from completion of labor performed.
Mechanic’s Lien: Waiver
A waiver of a right to mechanic’s lien IS NOT ENFORCEABLE
Mechanic’s Lien: Relation Back (Impact on Priority)
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).
