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Property > Property MBE > Flashcards

Property MBE Flashcards

1
Q

What happens if there is a covenant on the land, but an adverse possessor lives on the land for the statutory period in violation of the covenant?

A

The covenant has been terminated, the adverse possessor takes title free of the covenant.

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2
Q

When does a servient parcel take subject to the burden of an easement?

A

Will take subject to it unless a BFP. The 3 ways the purchaser may have notice: (1) actual knowledge, (2) inquiry notice: visible appearance of the easement or (3) record notice

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3
Q

When does the statute of limitations begin to run against the holder of a right of entry?

A

Not until holder of the right of entry asserts the right.

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4
Q

When is a negative servitude abandoned?

A

When a benefited party (person who could enforce the servitude) acquiesces in a violation.

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5
Q

Does the rule of perpetuities apply to options to purchase? To leaseholds?

A

Options to purchase: RAP applies

Leaseholds: RAP does NOT apply

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6
Q

What if a person does not own land, and conveys a deed, and then later he obtains the land?

A

Doctrine of Estoppel by Deed: The subsequent acquisition of title to the property vests in the grantee (the original person who bought the land)

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7
Q

When is delivery of a deed presumed?

A

(1) Handed to the grantee OR (2) acknowledged by the grantor before a notary and recorded

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8
Q

Once delivered, what effect does destroying the deed or returning it have?

A

No effect. Title passed with delivery.

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9
Q

How much notice to terminate is required for a periodic month to month tenancy?

A

One month

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10
Q

How much notice to terminate is required for a year to year tenancy?

A

At least 6 months

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11
Q

If there are rent payments, but no specific agreement as to length of the rent term, what type of tenancy is it?

A

Regular rent payments = periodic tenancy

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12
Q

Can a remainderman sue a life tenant for waste?

A

Yes. A life tenant has a duty to preserve the land and the structures in a reasonable state of repair.

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13
Q

What if the life tenant added a new improvement to the property and doesn’t keep it up? Can the remainderman sue?

A

No. No waste.

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14
Q

When will a voidable deed be set aside?

A

Only if the property has NOT passed to a BFP.

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15
Q

Transferability of future interests: when can the interests be reached by creditors?

A

If the future interest can be transferred voluntarily, it can be reached by creditors (involuntary transfer)

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16
Q

Are contingent remainders transferable inter vivos?

A

Not at common law.

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17
Q

What is a profit?

A

Right to remove soil or products of the soil from the land

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18
Q

What is an easement?

A

Right to USE the servient land

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19
Q

What is a Profit appurtenant?

A

When the profit exists to serve a dominant estate.

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20
Q

What is a Profit in gross?

A

Profit does not exist to serve a dominant estate.

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21
Q

Can a profit in gross be transferred separate and apart from the dominant estate?

A

Yes

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22
Q

Can a profit appurtenant be transferred separate and apart from the dominant estate?

A

No. Can only be transferred along with the dominant estate.

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23
Q

Can a license be transferred?

A

No. It is personal to the licensee.

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24
Q

Can you restrict the transferability of a life estate?

A

Yes.

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25
Q

Alienability of fee simple: difference between conditions and restrictions on transferability

A

Conditions: okay as long as they don’t restrict ability to transfer land

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26
Q

Two ways a life estate can be formed

A
  1. express

2. by implication

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27
Q

What happens if there is a life estate measured by the life of another and the life tenant dies before the measuring life dies?

A

Modern rule: passes to the estate of the deceased life tenant and continues until the measuring life dies

Common law rule: seisen was vacant and anybody takes

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28
Q

Duty not to commit waste: who has this duty?

A

Life tenant

Normal tenants in a lease

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29
Q

Types of waste

A
  1. voluntary waste (destructive waste)
  2. permissive waste
  3. ameliorative waste
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30
Q

Open mines doctrine

A

Life tenant may use natural resources if such use constitutes the normal use of the land.

If it has never been used for that: waste

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31
Q

Life tenant: permissive waste

What must life tenant do?

A
  1. make repairs (not replace) - limited to the amount of rents and profits received
  2. pay all taxes (subject to rents and profits received)
  3. pay interest payments on mortgage
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32
Q

GA law: what happens if life tenant doesn’t pay taxes?

A

The life estate is forfeited.

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33
Q

When will ameroilative waste be okay?

A

CHANGED CONDITIONS have made the property relatively worthless

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34
Q

What are the 3 types of future interests retained by a grantor/his estate?

A
  1. reversion
  2. possibility of reverter
  3. right of entry
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35
Q

What are the 2 types of future interests given to a grantee?

A
  1. remainder

2. executory interest

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36
Q

Reversion: when will it arise?

A

When grantor has conveyed LESS than the full estate he had (conveys life estate).

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37
Q

Possibility of reverter: what type of conveyance does it go along with?

A

Fee simple determinable

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38
Q

Fee simple determinable: characteristics

A
  1. durational language: “so long as” “until” “while”

2. will end automatically when occurrence of some event

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39
Q

Right of re-entry: what type of conveyance does it go along with

A

Fee simple subject to condition subsequent

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40
Q

Fee simple subject to condition subsequent: characteristics

A
  1. conditional language: “but if”

2. title does NOT go back to grantor automatically - it must be exercised

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41
Q

What if a conveyance says “O conveys 123 Poplar to GT for the purpose of tennis courts.” What happens if they build a parking lot?

A

Nothing. “For the purpose” of has no legal effect.

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42
Q

Are reversions, possibility of reverter, and right of reentry subject to Rule against perpetutities? Transferable on death? Transferable inter vivos?

A

RAP: No. These are vested rights.
Death: Yes, all 3.
Inter vivos: NOT right of reentry

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43
Q

Definition of a remainder interest

A

A remainder is a future interest that comes NATURALLY and IMMEDIATELY on the termination of the preceding estate.

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44
Q

Class gift: vesting

A

Rule of convenience: class closes when any class member is entitled to distribution

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45
Q

What is the general rule if a member of a class PREDECEASES the testator?

A

Eliminated, gift lapses unless there is an applicable anti-lapse statute.

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46
Q

Executory interest: what does it do?

A

cuts short the estate that comes before it

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47
Q

Do holders of executory interests have standing to sue for waste?

A

No.

Remaindermen do have standing to sue for waste.

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48
Q

What does the rule against perpetuities apply to?

A
  1. contingent remainders
  2. vested remainder subject to open
  3. executory interests
  4. trusts
  5. class gifts
  6. right of first refusal
  7. options to purchase
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49
Q

Rule against perpetuities

A

No interest will be valid unless it must vest - if it vests at all - within 21 years after the death of someone who was alive when the conveyance was made.

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50
Q

GA law concerning the rule of perpetuities

A

“wait and see” approach

Courts will wait and see if a particular conveyance vests within 90 years

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51
Q

Exception to Rule of Perpetuitities: charity to charity exception

A

Both transferees must be charities

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52
Q

What happens if the rule against perpetuities is void as to any member of a class?

A

VOID as to all members (even those that appear vested)

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53
Q

Joint tenancy: what are the 4 unities?

A
  • same TIME
  • unity of TITLE: grant to all tenants is in same instrument
  • INTEREST: same kind and same amount of interest
  • POSSESSION: same rights of possession
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54
Q

Partition: 2 ways

A
  1. voluntary agreement b/w parties

2. judicial action

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55
Q

Will a mortgage sever a joint tenancy?

A

GA & majority: lien theory (title isn’t transferred to the bank)

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56
Q

What if a creditor tries to get at a joint tenant’s interest?

A

There is only severance when the judicial sale actually takes place.

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57
Q

Tenancy by the entirety: what makes it unique?

A

NOT severable by unilateral act of one co-tenant

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58
Q

Does a co-tenant have to account to another co-tenant when he earns profits off the land?

A

NO accounting unless:

  1. ouster
  2. agreement to share
  3. lease of the property by a co-tenant to a third party
  4. depletion of natural resources
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59
Q

What does a co-tenant have a right to get contribution for?

A

Only necessary repairs, paying taxes, paying mortgage (if they all signed mortgage)
NOT improvements

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60
Q

Tenancy for years: characteristics

A
  • definite beginning date
  • definite ending date

*FIXED TIME PERIOD (no matter the length)

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61
Q

When must a lease be in writing?

A

When it is over 1 year

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62
Q

What if a lease doesn’t specify length but you’re paying rent?

A

Periodic tenancy measured by the rent payment

Ex: Rent paid monthly: month-to-month periodic tenancy

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63
Q

Notice to end a periodic tenancy: how much time?

A

Year to year: 6 months

Month to month: 1 month

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64
Q

Tenancy at will: how does it terminate?

A
  • notice of termination AND

- reasonable time to vacate

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65
Q

Tenancy at will: termination by operation of law

A
  1. death of either party
  2. waste by the tenant
  3. assignment by the tenant
  4. landlord sells property or leases to a third party
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66
Q

What if a tenant holds over?

A

Tenancy at sufferance

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67
Q

Hold over tenant: what are the landlord’s options

A
  1. sue to evict + get damages

2. impose a new periodic tenancy

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68
Q

Imposing a new periodic tenancy on a holder over tenant

A

Tenancy of less than a year: length of rent payment (usually month to month)

Commercial property: year to year

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69
Q

What if a tenant fails to pay rent? What are the landlord’s options?

A

Modern rule: sue for damages and to terminate the lease

Common law rule: had to sue for damages and could NOT evict

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70
Q

What happens if the tenant unjustifiable abandons?

A
  1. landlord can accept the offer of abandonment (ends rent obligation)
  2. landlord leases the property to someone else and holds the tenant liable for any deficiency (reasonable effort to relet)

Note: In GA landlord does not have to relet

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71
Q

What type of possession must be delivered on the first day of the lease?

A

Actual possession

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72
Q

Condition of leased premises: what duty does a landlord have?

A

Modern rule: for RESIDENTIAL properties, there is an implied warranty of habitability

Common Law: no duty to deliver leased premises in a habitable condition

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73
Q

What does the implied warranty of habitability mean?

A

Leased premises must be reasonably suited for residential use: fit for basic human habitation (compliance w/ code)

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74
Q

What happens if landlord breaches the implied warranty of habitability?

A

Tenant has 3 options:

  1. move out and end lease
  2. stay on property and sue for damages
  3. some courts allow tenant to make reasonable repairs and deduct from rent
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75
Q

What covenant is included in every lease?

A

Implied covenant of QUIET ENJOYMENT

*residential and commercial

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76
Q

How does a landlord breach the implied covenant of quiet enjoyment?

A
  1. total eviction
  2. partial eviction
  3. constructive eviction
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77
Q

What happens if there is a partial eviction caused by the landlord?

A

Tenant keeps living there but doesn’t pay rent.

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78
Q

What happens if there is a partial eviction caused by a third party?

A

Rent is proportionately reduced to reflect the amount taken.

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79
Q

What is constructive eviction?

A

No physical exclusion - instead it occurs when the landlord fails to provide services and that failure makes the property uninhabitable

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80
Q

Elements to be constructive eviction

A
  1. landlord fails to provide services
  2. substantial interference w/ tenant’s quiet enjoyment
  3. tenant must ABANDON w/in a reasonable time after landlord breaches
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81
Q

When does an assignment occur?

A

When you transfer all that is remaining (entire interest)

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82
Q

Lease involves what types of privity?

A
  1. privity of estate

2. privity of contract

83
Q

Liability when there has been an assignment

A

Tenant is liable to the landlord for rent if there is EITHER:

  • privity of estate OR
  • privity of contract
84
Q

When will a lease covenant run with the land?

A

When it touches and concerns the land. (makes land more valuable or useful)

85
Q

Liability of successive landlords: when tenant sues landlord

A

Original landlord continues to be liable to the original contract b/c of privity of contract

AND successive landlord will be liable to the original tenant if EITHER:

  1. privity of contract OR
  2. privity of estate AND the lease covenant runs with the land
86
Q

Subleases: general rule on who is liable to the landlord

A

Sublessor (original tenant) will be liable on any lease covenants (rent) b/c when he subleases he doesn’t not transfer the estate

87
Q

Is a lease that prohibits assignments/subleases valid?

A

Yes. But courts will strictly construe. If only assignment is prohibited, subleasing won’t be.

88
Q

What happens if you violate a non-assignment or non-sublease clause?

A

Attempted transfer is VOIDABLE at the option of the landlord. (not automatically void)

89
Q

What is the general rule about waiver with regard to a non-assignment clause?

A

If landlord waives once, he waives forever UNLESS he expressly reserves the right to reject future assignments.

90
Q

What if government takes part of the property covered in the tenant’s lease by eminent domain? Is the rent obligation excused?

A

No. A partial condemnation means:

  1. tenant still has to pay full rent BUT
  2. tenant will share in condemnation award
91
Q

What if government takes ALL of the property covered in the tenant’s lease by eminent domain? Is the rent obligation excused?

A

Yes. Excused from paying rent AND tenant is possibly entitled to some of the condemnation award if the fair rental value exceeded what they were paying (tenant had a good deal)

92
Q

What is the COMMON LAW duty of landlords to tenants for injuries sustained?

A

NO DUTY (subject to exceptions)

93
Q

When will a landlord be liable for injuries to tenants or tenants’ invitees?

A
  1. latent defects
  2. short term lease of a furnished dwelling
  3. common passageways under landlord’s control
  4. negligent repairs done by landlord
  5. public use
94
Q

What is a latent defect?

A

Something the tenant does not know of and would not discover

95
Q

Latent defect: what must landlord do?

A

Landlord has a duty to DISCLOSE latent defects which the landlord KNOWS or HAS REASON TO KNOW of.

96
Q

Short term lease of a furnished dwelling (3 months or less): rule

A

Landlord is liable for defects EVEN IF he didn’t know of them or have reason to know of them.

97
Q

What is the standard for liability of common passageways under the landlord’s control?

A

Negligence: landlord failed to exercise reasonable care

98
Q

Landlord liability for negligent repairs

A

Basically strict liability

99
Q

Public use exception: when is landlord liable

A
  1. Landlord MUST KNOW (or should know) of major defects.
  2. Landlord MUST KNOW (or should know) tenant will NOT fix the defect
  3. Landlord MUST KNOW (or should know) that the public will be using the premises.
100
Q

When will a tenant be liable for negligent failure to correct dangerous conditions on his leased premises?

A

Always. Landlord may also be liable - depending on whether one of the exceptions applies or if he breached a contractual promise

101
Q

When is an item a fixture?

A

Look at the intent: did the one installing the personal property intend the item to remain with the real property?

102
Q

If there is no agreement about handling whether something is a fixture, what 4 factors are used?

A
  1. degree of attachment
  2. general custom
  3. degree of harm to remove it
  4. trade fixtures: not a fixture - removable
103
Q

If the item is not a fixture, when can the item be removed?

A

Tenant: must remove before lease expires
Seller: must remove before closing

104
Q

Easement appurtenant

A

directly benefits the use and enjoyment of a SPECIFIC PARCEL

path to the beach

105
Q

Easement: what is the burdened estate called?

A

Servient

106
Q

Easement: what is the benefited property called?

A

Dominant

107
Q

Easement in gross: characteristics

A

There is only a servient estate - the land burdened
*doesn’t benefit a specific piece of land

Ex: utility easement (RR, wires)

108
Q

Elements for it to be an express easement

A
  1. in writing
  2. signed by holder of the servient estate
  3. satisfy all deed formalities
109
Q

Easements by implication (implied easement): 2 situations when it arises

A
  1. previous use by a common grantor

2. absolute right of access (landlocked)

110
Q

When will there be an implied easement b/c of previous use by a common grantor?

A
  1. grantor used the land as a quasi easement
  2. continuous use
  3. open and obvious - apparent
  4. reasonably necessary
111
Q

Where is the location for the easement when there is an absolute right of access creating the implied easement?

A

Owner of servient estate can choose a reasonable location.

112
Q

Easements by prescription: elements

A
  1. adverse use
  2. continuous and uninterrupted
  3. use is visible OR made w/ owner’s knowledge
  4. hostile use
    * no need to be exclusive!

*driveway example

113
Q

Easement appurtenant: what happens when the dominant estate is transferred?

A

The benefit is automatically transferred too (whether included in the deed or not)

114
Q

Can easements in gross be transferred?

A

If commercial: yes

If person: cannot be transferred

115
Q

When will easements be binding on subsequent holders of servient estates?

A

Always (even if not specifically mentioned in deed) as long as there was NOTICE.

116
Q

Three types of notice

A
  1. actual knowledge or notice
  2. constructive notice: document creating the easement was duly recorded in the buyer’s direct chain of title
  3. inquiry notice: physical inspection of the land
117
Q

Scope of an easement

A
  1. perpetual

2. reasonable development of dominant estate (likely contemplated by parties)

118
Q

Remedy for excessive use of an easement?

A

Enjoin the excessive use

119
Q

Who must repair the easement?

A

Dominant estate (person receiving benefit!)

120
Q

When does an easement end?

A
  1. merger: unity of ownership
  2. deed of release
  3. abandonment
  4. termination by estoppel
  5. termination by prescription
121
Q

What constitutes a valid release of an easement?

A
  1. must be in writing AND

2. must comply with all deed formalities

122
Q

Abandonment of an easement

A
  • mere nonuse isnt enough

- INTENT to abandon must be MANIFESTED by the holder of the dominant estate

123
Q

Easement by estoppel: when would this happen?

A
  1. dominant estate tries to relinquish the easement AND

2. servient estate makes a change in his position in reliance on the representation

124
Q

Termination of easement by prescription

A

Happens when the owner of the SERVIENT estate stops the dominant estate from using the easement AND keeps the use stopped for the period of time required under the statute of limitations

125
Q

What is a license?

A 
NOT a property interest
CONTRACT RIGHT (ex: ticket to Sea World)
126
Q

When can a license be revoked?

A

It can always be revoked.
If the revocation was wrongful, the licensor may have to pay contract damages.

Ex: sea world ejection hypo

127
Q

When is a license irrevocable?

A

When an easement was attempted (but failed b/c of statute of frauds) AND money was spent in furtherance of the oral license

128
Q

Restrictive covenants: what is their purpose?

A

The right to RESTRICT some third party in the USE of his land

129
Q

Two categories of restrictive covenants

A
  1. covenants running with the land

2. equitable servitudes

130
Q

What is the difference b/w a covenant running w/ the land and equitable servitudes?

A

The theory used to enforce the terms of the restriction.

Money damages - Covenant running with the land: court @ law
Injunction - Equitable servitude: equity

131
Q

Enforcing the RESTRICTION of a restrictive covenant at law: 4 elements

*D is the successor in interest

A
  1. intent for the restriction to run with the land
  2. notice
  3. touch and concern
  4. privity: horizontal and vertical
132
Q

Suing to enforce the BENEFIT of a restrictive covenant: suing for damages

Ex: suing neighbor for failure to maintain the fence he promised to maintain

*P is the successor in interest

A
  1. intent for the restriction to run with the land
  2. touch and concern
  3. vertical privity only (relaxed form)
133
Q

What establishes horizontal privity?

A

When there was a conveyance of property b/w the original parties.

134
Q

What establishes vertical privity?

A

Successors take the full estate held by the predecessor

135
Q

Suing for an injunction to enforce the burden: equitable servitude (elements)

A
  1. intent that the restriction be enforceable by successors-in-interest
  2. touch and concern
  3. notice to the subsequent purchaser
136
Q

Enforce the benefit of an equitable servitude

A
  1. intent

2. touch and concern

137
Q

Subdivision restrictions: Reciprocal negative equitable servitudes (elements)

A
  1. intent to impose a servitude on ALL land

2. notice

138
Q

Defense of changed conditions

A

Only works if ALL lots are affected

139
Q

Elements for adverse possession

A

“HELUVA”

Hostile
Exclusive
Lasting
Uninterrupted 
Visible 
Actual
140
Q

Constructive adverse possession

A
  1. color of title
  2. adverse possessor gets the full extent of the color of title
    (as long as he possessed enough land to make this reasonable and land must be one seamless whole)
141
Q

If you are an adverse possessor and you lease the land to a third party, does this constitute possession?

A

Yes.

142
Q

Can a co-tenant adversely possess another?

A

NO. Unless there was an ouster.

143
Q

What if a person adversely possesses a life estate? Does he get everything?

A

No. Just the present possessory estate.

To get the whole estate he must adversely possess against the holder of the remainder.

144
Q

Can a remainderman reject an adverse possessor of the life estate?

A

No. Must wait until future interest becomes possessory.

145
Q

When does clock begin running for adverse possession with a right of entry?

A

Only when right of entry is exercised.

146
Q

When does clock begin running for adverse possession with a possibility of reverter?

A

When the condition is triggered, b/c possibility of reverter automatically goes to grantor.

147
Q

MBE rule: tolling disabilities

A

Disability must exist before adverse possessor begins to occupy.

148
Q

Conveying land: 2 step process

A
  1. contract of sale

2. deed transferred at closing

149
Q

What must the contract for sale include? (requirements)

A
  1. MUST be in writing
  2. signed by the person being sued
  3. describe the property
  4. name the parties
  5. price
150
Q

Doctrine of part performance: when do you use it?

A

When the contract failed the statute of frauds requirement but some action by the buyer allows for specific performance.

151
Q

2 requirements to rely on the doctrine of part performance

A
  1. oral contract must be certain and clear; AND

2. the acts of partial performance must clearly prove up the existence of the contract

152
Q

What acts of partial performance would satisfy the “prove up” requirement?

A
  1. Possession + full purchase price (or close to full)
    OR
  2. Possession + improvements
153
Q

Doctrine of equitable conversion

A

After the contract for the sale of property has been signed, the buyer bears the loss (unless seller is at fault)

154
Q

Marketable title: where is the covenant contained?

A

Every land sale contract contains an implied covenant that the Seller will deliver marketable title at closing.

155
Q

Marketable title: definition

A

Title that a reasonably prudent buyer would accept (buyer not required to buy a lawsuit)

156
Q

What 3 things must the seller provide to satisfy the implied covenant of marketable title?

A
  1. proof of title
  2. title free from encumbrances
  3. valid title as of closing
157
Q

What are encumbrances?

A 
Violations of zoning ordinance
Mortgage (that won't be satisfied at closing)
Restrictive covenants 
Easements 
Options to buy
158
Q

What if the day BEFORE closing the buyer finds out the seller does not have legal title to the property? Can buyer rescind?

A

NO. Buyer must wait until the day of closing to see if Seller delivers marketable title.

159
Q

What if there is a defect in title? What must buyer do?

A

Buyer must give seller notice and a reasonable time to CURE

160
Q

What if seller can’t cure? What can buyer get?

A
  1. rescission of sales contract
  2. damages
  3. specific performance and a reduction in purchase price to reflect the defect
161
Q

What happens if closing doesn’t happen on the date in the contract?

A

Performance can be rendered within a reasonable time

162
Q

When will time be of the essence?

A
  1. states it in the contract

2. the facts make clear that the parties intend that time be of the essence

163
Q

What duty does seller have to disclose defects to buyer?

A
  1. no active concealment
  2. If residential property is being sold, buyer also has a duty to disclose serious defects that the seller knows of and are NOT obvious to buyer.
164
Q

When is there an implied warranty of habitability with the sale of a home?

A

Only NEW residential homes by a builder-seller

165
Q

To what types of property does “caveat emptor” still apply?

A

Commercial property

Agricultural property

166
Q

What happens to the land sale contract once the deed is excepted at closing?

A

Contract is extinguished

167
Q

Deed formalities

A
  1. must be executed in writing

2. must be delivered (and accepted)

168
Q

Deed requirements

A
  1. signed by seller
  2. in writing
  3. describe the land with sufficient accuracy
169
Q

If deed needs clarification for its description, can parol evidence be used?

A

Yes

170
Q

Delivery of deed: what matters?

A

Intent of grantor to pass title

*no physical transfer is required

171
Q

What happens if a deed is recorded: does this constitute delivery?

A

presumption of delivery

172
Q

General warranty deeds (6 covenants)

A

3 present:

  • covenant of seisen
  • covenant of right to convey
  • covenant against encumbrances

3 future:

  • covenant of quiet enjoyment
  • covenant of warranty
  • covenant of future assurances
173
Q

What is the difference b/w present covenants and future covenants?

A

Present: breached (if at all) right when conveyance is made
*personal to the grantee and do NOT run w/ land

Future: breached (if at all) at some later point after conveyance
*run with the land

174
Q

What is the common law rule with regard to recording a deed?

A

First in time, first in right (subsequent purchasers always lose)

175
Q

Three types of recording acts

A
  1. race statute
  2. race notice statute
  3. notice statute
176
Q

Notice statute

A

Subsequent purchaser does NOT need to record to win

Must NOT have notice of the earlier sale

177
Q

Race statute

A

Notice is irrelevant (no BFP requirement)

Race to record - whoever records first wins

178
Q

Race Notice

A

Subsequent purchaser must take:
WITHOUT notice AND
Must be the FIRST to record

179
Q

Race notice statute language

A

“Without notice”

“First recorded”

180
Q

Notice statute language

A

“without notice”

no first recorded language

181
Q

Race statute language

A

first recorded

no notice language

182
Q

When is a person not a BFP

A
  1. donee (gift)
  2. heir
  3. devisee
183
Q

Shelter rule

A

Anyone can shelter under the rights of a BPF

184
Q

Does a recording statute protect subsequent mortgagees? Judgment creditors?

A

Subsequent mortgagees: yes

Judgment creditors: no

185
Q

What does it mean to have “legal blinders” on when doing a title search?

A

Only look to what grantor did during period of record ownership (not what he did before and after)

186
Q

Inquiry notice: what must a person do to be a BFP

A

Make a physical inspection of the property AND investigate any unexplained possession or any unexplained uses

187
Q

Three different types of security interests in real property

A
  1. mortgage
  2. deed of trust
  3. land sale contract
188
Q

Mortgagor

A

debtor

189
Q

Mortgagee

A

entity that gives the mortgage (bank, etc)

190
Q

What is an equitable mortgage?

A

Gets the protections of a mortgage

You give someone a deed when you owe them money with the understanding they will give you back the deed when the debt it paid.

191
Q

Deed of trust: define

A

Deed of trust is given by the debtor to a third party TRUSTEE, who holds the deed of trust until the debt is paid.

192
Q

Land sale contract: define

A

Debtor/buyer signs a contract and makes installment payments and will receive property when loan is fully paid.

Until then, seller keeps title

193
Q

Right of redemption/ equity of redemption

A

Debtor may pay off amount in arrears anytime before foreclosure (if acceleration clause, debtor has to pay full balance)

194
Q

Can the right of redemption be waived by the debtor?

A

Not in the original mortgage but can be waived LATER for separate consideration

195
Q

Statutory right of redemption

A

Some states allow borrower to redeem after the foreclosure sale

196
Q

Purchase money mortgage

A

a mortgage taken out to BUY the property (takes priority over other mortgages entered into before it)

197
Q

What interests does a foreclose eliminate?

A

All junior interests are eliminated (must be joined).

Buyer at foreclosure will take property SUBJECT to any senior mortgages

198
Q

Order of payment from foreclosure proceeds

A
  1. costs of the foreclosure
  2. pay off mortgage that was foreclosed upon
  3. pay off junior mortgages in order of priority
  4. any remaining balance to the mortgagor (debtor)
199
Q

Forfeiture clause in a land sale contract

A

enforceable, but that is the only remedy

200
Q

What if a property is sold that has a mortgage?

A
  1. new owner takes SUBJECT to the mortgage
  2. new owner will NOT be personally liable unless he expressly assumes mortgage
    * but, he could lose house if mortgagor fails to pay mortgage on the property
201
Q

Lateral support: standard

A

Strict liability for neighbor’s land that collapses

Improvements: strictly liable ONLY IF the land would have collapsed anyway without the structures on it

202
Q

Water rights: majority rule

A

riparian rights (use all you want for domestic and reasonable use of non-domestic)

203
Q

minority rule of water rights

A

prior appropriation: first in time takes

Property (2 decks)

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