Property Midterm Final Version Flashcards
1
Q
What is a gift?
A
- voluntary transfer of property
- WITHOUT any consideration
2
Q
What are the three elements of valid gifts?
A
- Intent
- Delivery
- Acceptance
3
Q
Key issue in the intent element of a valid gift?
A
must be present intent
4
Q
Key issue in the delivery element of a valid gift?
A
- generally, needs to actually be delivered
- EXCEPTIONS?
- => constructive delivery: provides access or control to gift via an item (key to a locked box)
- => symbolic delivery: provides a representation (letter stating ownership, keys to a car)
5
Q
Key issue in the acceptance element of a valid gift?
A
- law presumes gift to be accepted if beneficial to the donee
- refusal of a testementary gift is possible, status of that gift then becomes disclaimed
6
Q
What happens if there is a right to revoke the gift by the donor when making a gift?
A
not a valid gift
7
Q
Exceptions to right to revoke present in gifts by the donor when making a gift?
A
- Gift Causa Mortis: gift made because of immediately approaching death
- Conditional Gifts: gift that returns to owner if condition is not met
8
Q
What is a will?
A
A document containing a testament setting out the testator’s wishes regarding the distribution of his or her estate upon death.
9
Q
What is the elements in the statute of wills?
A
- must be in writing
- signed by the testator
- and attested by two witnesses
10
Q
Why are wills needed? (their functionalities) (PECC like peck)
A
- evidentiary
- cautionary
- channeling
- protective
11
Q
What is a codicil?
A
- writing that adds, removes, or changes one or more provisions of a previously made, valid will
12
Q
Can you revocate a will?
A
YES
13
Q
What is a holographic will, is it enforceable?
A
- MAJORITY recognize
- wills created without signing or presence of two witnesses
14
Q
What is Total Intestacy?
A
dying without a will
15
Q
What is partial intestacy?
A
dying without a will that fails to dispose of ALL of one’s property
16
Q
NY estates, powers and trust law?
A
- spouse gets $50,000 + half of remaining estate
- children get remainder balance
- no spouse, then goes to immediate family
- half-blood relatives + adopted children maintain inheritance rights
17
Q
What is a deed?
A
A written instrument transferring title to or interest in land.
18
Q
Elements of a valid deed?
A
- writing in the form of a deed
- must be signed by grantor
19
Q
Forged deed valid?
A
NO, no interest passed
20
Q
Admission of extrinsic evidence (parol evidence) in deeds?
A
- descriptions of property are generally enough
- HOWEVER, ONLY ALLOWED to clear up abiguity, i.e., measurements and boundaries
21
Q
Delivery required in deeds?
A
- words or conduct
- of the grantor
- intent to make the deed operative
- pass an interest IMMEDIATELY
22
Q
When are deeds presumed to be delivered?
A
- handed to the grantee
- acknowledged by the grantor before a notary
- recorded
23
Q
Can a deed be cancelled after delivery?
A
- NO
- in order to get it back, grantee must draw up a new deed and deliver it back to the grantor
24
Q
Conditional delivery to grantees that are written?
A
two interpretations:
1. no delivery, deed not effective until condition subsequent
2. grantor intends the deed to be legally effective now, but passing only an INTEREST that is subject to a condition
25
Conditional delivery to grantees that are oral?
NOT VALID
26
What happens if there is a grantor's power to revoke present language in the execution of a deed?
INVALID
27
What is a rescission?
The **cancellation** of a contract that **returns** the **parties** to the **same positions** that they were in **before entering the agreement**.
28
What are some grounds that rescission is possible?
- mutual mistake
- fraud
- material misrepresentation
- inequitable conduct: breaching a duty of good faith
- lack of capacity
- impossibility
- breach of contract
29
Is there a duty to disclose defects in deeds?
YES
30
Who bears the burden of loss when there is a breach in disclosing of defects?
the grantor
31
What are the three types of deeds?
1. quitclaim deeds
2. special warranty deeds
3. general warranty deeds
32
What are the covenants of title?
promises by the grantor about the quality of the title being conveyed
33
what is a quitclaim deed?
- contains NO covenants of title
- conveys whatever interest the grantor has in the property, if any, with no guarantees
34
what is a special warranty deed?
- includes ALL six covenants of title
- HOWEVER, deed only warrants against defects CREATED BY THE GRANTOR
- NOT DEFECTS created by previous owners
35
what is a general warranty deed?
- includes ALL six covenants of title
- deed warrants against defects CREATED BY ANYONE
- including any previous owner
36
How are covenants provided in deeds?
1. written in a deed
2. incorporated by law
37
Six covenants of title? SCEEWA
1. **seisin** (PRESENT): grantor actually owns the property
2. right to **convey** (PRESENT): grantor has legal authority to transfer
3. covenant against **encumbrances** (PRESENT): no encumbrances on the property except those identified in the deed ( key issue: even if grantee knows about it and not written, it must still be written SO GRANTOR LIABLE FOR DAMAGES)
4. quiet **enjoyment** (FUTURE): no one with superior title will interfere
5. **warranty** (FUTURE)
6. further **assurances** (FUTURE)
38
what is equitable conversion?
legal doctrine that determines the buyer's and seller's **property rights** during the **time between signing the contract and closing the sale**
39
What is the executory period?
interval between contract formation and closing
40
Buyer's property rights during executory period?
equitable owner of the property
41
Seller's property rights during exectory period?
equitable right to eb paid the purchase price, secured by an equitable lien on the property
42
The issue of title during executory period?
- seller holds onto the title until the sale is compelte
43
allocation of the risk of loss during executory period?
- **parties** allocate **themselves**
- if not present in contract, law will determine, and the law states:
- **MAJORITY**: **buyer** **bears** the risk of loss during the executory period
- => if seller received insurance payment for damages, buyer entitled to a credit in that amount
- **MINORITY**: **seller** **bears** the risk of loss
- => 1/3 value loss enough to rescind contract
- => **abatement**: discounting value of property according to damage
- HOWEVER, damages purely rely on whose at fault, if one of the two are at fault, doesn't matter what jurisdiction, they take on burden
44
what is a mortgage?
a lien granted on real property to secure a debt
45
Mortgagor?
borrower
46
Mortgagee?
the lender
47
What is the name of the debt that the mortgage secures?
a promissory note or a note
48
purchase money mortgages?
any mortgage that gives the mortgagor (the debtor) the money to buy the property
49
future-advance mortgages?
mortgagee distributes funds at intervals during the life of the mortage
50
defining a mortgage vs a debt
- debt: buyer's financial obligation
- mortgage: security for that debt
- EXAMPLE: buyer pays $50,000 up front for a $300,000 house and borrow $250,000 from the bank. she signs a promissory note for the loan and gives the bank a mortage on the house as security
51
Lien theory of mortgages?
- MAJORITY FOLLOW THIS
- mortgage gives the mortgagee a security interest in the property BUT HAS NO EFFECT on title or possession
- mortgagor retains full title and has the sole right of possession unless the mortgagee forecloses
52
Title theory of mortgages?
- mortgage gives the mortgagee legal title to the property
- mortgage released, title reverts to the mortgagor
- if mortgagor defaults, the mortgagee simply keeps the property
53
equitable redemption?
borrower's right to pay off the full outstanding debt before the foreclosure sale to prevent losing the property
54
deed of trust?
- borrower gives the lender a deed of trust as opposed to a mortgage
- borrower transfers title to a third person as trustee for the lender to secure the debt
- debt is not paid, trustee sells the land under a power of sale in the trust deed, pays off the debt, and pays over to the borrower anything left
55
deed in lieu of foreclosure?
- mortgagor surrenders the property to the mortgagee and the mortgagee accepts the deed
- VERY RARE
- most times, if a default is not cured and the loan is not modified, the result will be a foreclosure
56
