Property > Set 2 practice Qs Flashcards
What happens if the original mortgagee transfers possession of a nonnegotiable note without giving notice of the transfer to the mortgagor?
the mortgagor’s payment to the original mortgagee is effective even though it is not made to the person entitled to enforce the instrument.
Can a mortgagee transfer a nonnegotiable note to another party?
Yes, as a general rule, when a note is properly transferred, a mortgage will automatically follow it–no special written assignment of the mortgage is necessary.
NOTE: If the mortgagor does not have notice of the transfer, the mortgagor’s payment to the the original mortgagee is effective to discharge his debt.
What covenants do not run to successive grantees in a general warranty deed? What do they generally refer to
the present covenants of
seisin (I possess the property),
the right to convey
and against encumbrances
These three present covenants generally refer to the quality of title, but do run to succesive grantees. These are only breached at the time of closing.
Treat an easement just like a normal conveyance insofar as _______.
A successive grantee who acquires land that was subject to an easement can take the easement along with the land without actual notice, as long as he had inquiry or constructive (record) notice.
What happens if a remainderman dies before the life tenant?
The remainderman’s interest does not disappear, rather it goes to his heirs.
What if rancher and farmer are remaindermen as joint tenants with right of survivorship. What happens if 1 of them dies before the life tenant dies?
Their interests operate just as if they were in present possession. The surviving joint tenant receives the entire interest as the survivor (here as a future interest until the life tenant dies).
The doctrine of part performance may be used to enforce an otherwise invalid oral contract of sale, provided the acts of part performance ________.
unequivocally prove the existence of the contract.
What are some indicators that part performance does not prove the existence of an otherwise invalid oral contract of sale?
paying the same amount per month in installments as had been previously paid as rent
improvements made are the kind frequently made by long-term tenants
When will a deed be treated as an “equitable mortgage?”
if a deed is given for security purposes rather than as an outright transfer of the property
If a deed is given for security purposes, what will the creditor have to do before selling to a third party?
foreclose it by judicial action like any other mortgage
In determining whether an absolute deed is really a mortgage, the court considers the following factors:
(i) the existence of a debt or promise of payment by the deed’s grantor;
(ii) the grantee’s promise to return the land if the debt is paid;
(iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property;
(iv) the degree of the grantor’s financial distress; and
(v) the parties’ prior negotiations
Under the statute of frauds, a land sale contract is unenforceable unless it is in writing and signed by the party to be charged. The SOF requires the writing to contain all essential terms of the contract, which in a land sale contract are:
(i) a description of the property,
(ii) identification of the parties to the contract;
(iii) the price and manner of payment;
and (iv) the signature of the party to be charged
Under the part performance exception in a land sale contract, what is required for a court to grant specific perforamnce of a contract despite the absence of a writing?
payment of the purchase price
however, earnest money (e.g. 5% of the total price) is not sufficient performance to remove this agreement from the SOF.
What is course of dealing? What can evidence of course of dealing NOT be used for?
a sequence of previous conduct between thep arties that may be regarded as establishing a common basis of their understanding
CANNOT be used outside of UCC
CANNOT be used if there’s no written agreement
Instead, it’s used to explain or supplement the terms of a written contract for the sale of goods under the UCC
What is the special RAP exception when a current lessee has the option to purchase the property, too?
If a current lessee’s option to purchase the land he is leasing goes beyond the perpetuities period (e.g. a 22 year lease to A with an option to buy in A and A’s heirs) (A could die this year and the option could still be exercised by an heir at a time later than 21 years) it won’t be struck. RAP doesn’t apply. It’s valid.
