Real Prop Flashcards
Adverse Possession
Allow one who has wrongfully entered a property to obtain possession of that property under the following requirements:
- actual possession
- open and notorious and visible possession
- hostile possession
- continuous use for the given statutory period.
actual possession
the claimant must have exclusive use of the property, which means he must physically occupy the premise.
- exclusive use: the true owner must be excluded from the premises and the property may not be open to public.
- partial possession: a reasonable percentage of the property must be actually used. Claimant (C) may only claim possession of the portion of the property he actually used.
- tenant: C may lease the premise to a tenant to satisfy the actual possession element.
Open and notorious and visible possession
the claimant must possess and use the property in a way that a typical owner of similar property would use the property.
- the use must be sufficiently open to put the true owner on notice of the trespass by the adverse possessor.
Hostile possession
Possession of the land must be without owner’s consent
- hostile possession may mean impermissible, the possession does not need to be done in a hostile manner.
- Boundary disputes: where one property owner occupied the land, mistakenly thinking it is his own, it can be deemed hostile.
- Ouster of a co-tenant is required to find a hostile possession with concurrent property owners since all co-tenants have equal right of possession of the property.
ouster occurs when a co-tenant claims exclusive right to possession and refuses occupancy to his co-tenant.
Continuous use for the given statutory period
- statutory period: common law = 20 years; state laws varies but most require 15 years.
- continuous possession = the owner may not reenter to regain possession during the statutory time. If he does, the clock starts over.
- seasonal use may still satisfy continuous possession if this is the way a typical owner of similar property would use the land.
- tacking: one adverse possessor may tack his time with the time of another adverse possessor to meet the statutory requirement if the two possessors are in privity.
Effect of adverse possession
AP does not convey marketable title. However, the title can be perfected and made marketable by means of a judicial action to quiet title.
Land sale contract
The contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing. After closing the deed became the operative document under the merger doctrine.
Statute of Fraud
requirements:
- K in writing
- names of the parties
- signed by the party to be bound
- sufficiently describe the land, and
- state some consideration (purchase price and manner of payment)
SOF Part Performance Exceptions
- Possession of the land by the purchaser
- Substantial improvement are made to the premises
- Payment for part or all of the purchase price.
Most courts require at least 2 exceptions are met to apply the exception.
PIP
Marketable title
implied promise in every land sale contract that the seller covenants to transfer marketable title at the time of closing.
Marketable title = title free from reasonable doubt about the seller’s ability to convey what he purports to convey.
Doctrine of equitable conversion
once the contract is signed, the buyer is deemed the owner of real property even before closing.
Remedy for breach of land sale contract
- damages = difference between the market price and the contract price.
- specific performance: permanent injunction where court orders D to perform the contract as promised.
Requirements for specific performance
- valid contract
- contract conditions imposed on P are satisfied or waived.
- inadequate legal remedy: real property is always unique
- mutuality of performance
- feasibility of enforcement
- No defenses such as laches or unclean hands.
Mnemonic: Chocolate Cheesecake Is My Favorite Dessert
Mortgage
a financing arrangement that conveys a security interest in land where the parties intended the land to be collateral for the repayment of a monetary obligation.
Buyer/borrower = mortgagor
Lender = mortgagee
Rights of mortgagee and mortgagor
buyer-mortgagor has right to possession of the property and title; the creditor-mortgagee has a lien, which grants the right to take the land and foreclose. Mortgages are transferaable.
Foreclosure
a process by which the mortgagee may reach the land in satisfaction of the debt if the mortgagor is in default on the loan.
- Judicial foreclosure: mortgagee must foreclose by proper judicial proceedings.
- Priority of loans: Fees from attorneys/trustees> Purchase Money Mortgage or secured senior interests > secured junior interest > unsecured interests.
Purchase Money Mortgage (PMM)
mortgage given to secure a loan that enables the debtor to originally purchase the property. A PMM receives priority over non-PMM mortgages, but a PMM may not get a deficiency judgment against the debtor.
Deficiency Judgment
occurs when the property is worth less than the amount owed on the outstanding loan. Lender can sue debtor personally for the deficiency different only if:
- there was judicial foreclosure; and
- the loan was not PMM
Antideficiency statutes
A lender cannot receive more than the value of the loan. Any excess remaining is returned to the buyer.
Redemption
When a mortgage is paid off, the property is redeemed from the mortgage. Some states have statutory redemption allowing the mortgagor a fixed period of time after forclosure to redeem the mortgage.
Deed of trust vs. mortgage
similar to a mortgage, except the debtor is the trustor and the deed of trust is given to a third-party trustee.
Installment contract vs. mortgage
Buyer makes a down payment and pays off the balance in installment. Deed is converted when the buyer paid off the installment.
Conveyance by deed
a deed is a document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered.
Deed requirements
- identification of the parties;
- In writing and signed by the grantor, which is witnessed or notarized.
- adequate description of the property
- words of intent (“grant”)
- no consideration is required
Three types of deeds
- Quitclaim deed:
- General warranty deed:
- Statutory special warranty deed
Quitclaim deed
conveys whatever interest the grantor actuall has in the property but contains no covenants of title (promises about what the interest is)
General Warranty deed
warrants against all defects in title and contain six covenant for title. Three are present covenants and three are future covenants.
Present Covenants: if there is a breach, it is breached at the time of the sale
- seisin: grantor warrants he owns what he purports to own
- right to convey: grantor warrants he has the power to make the conveyance
- against encumberances: grantor warrants there are no mortgages, liens, easements, or use restrictions on the land.
Future Covenants: run with the land, continuous, and it is breached at the time the grantee is disturbed in possession.
- Warranty of title: grantor promises to defend should ther ebe any lawful claims of title asserted by others
- Quiet enjoyment: grantor promises grantee will not be disturbed in possession by any third parties’ lawful claims of title.
- Future assurance: grantor will do whatever future acts are reasonably necessary to perfect title
Statutory special warranty deed
some state enforce promises by statute where the grantor promises that he hasn’t conveyed the property to others and that the estate is free from encumberances.
delivery of deed
Proper delivery + Acceptance = effective deed.
Title passes immediately to the grantee upon proper delivery, thus it is irrevocable
Delivery requirements
- Intent of present transfer: words or conduct indicating the grantor’s intent to make a present transfer of the deed.. recording and grantor physically delivering the deed are strong presumption of intent.
- Acceptance of the deed. Rejection defeats delivery.
Merger doctrine
once the property closes, the deed, rather than the underlying land sale contract, becomes the operative document governing the transaction.
Breach of covenants
- Issues with title: purchase price or the cost to defend or perfect the title, whichever is lesser.
- Encumbrance: difference in value with and without encumberance or the cost of removing encumbrance, whichever is lesser.
- Defenses to the breach: unclean hands, laches, and waiver.
Ademption
The specific property is no longer part of the estate at the time of the testator (T)’s death. The general rule is that the gift is adeemed.
Exoneration
when a person receives a bequest of a specific property, and that property is subject to a lien or mortgage, the encumbrance will be paid off with the estate’s personal property, and the recipient receives the property free and clear of the mortgage, unless T indicates a different intent.
Lapse and anti-lapse
Lapse (common law): if B predeceased T, the bequest fails.
Anti-lapse (state statute): the predeceased B’s heirs will inherit the bequest.
Recording acts
a way for buyer to ensure he is getting good title.
- Common law: without a recording act in place, CL follows “first in time, first in right”.
Three types of recording acts
- Pure race statutes: the first to record wins. (not commonly used)
- Pure notice statutes: a subsequent bona fide purchaser (BFP) prevails over a grantee that didn’t record.
- Race-notice statute: a subsequent BFP that records first prevails over a grantee that didn’t record first.
language examples of recording acts
pure notice: “No conveyance or mortgage of real property shall be good against subsequent purchaser for value and without notice thereof, unless the same be recorded according to law.”
race-notice: “no conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice, who shall first record.”
Bona fide purchaser (BFP)
Recording acts protect BFPs and mortgagees. Recording acts don’t protect donees, heirs, and devisees because they don’t take “for value”.
BFP is one who takes for value and is without notice of the prior interest.
Three types of notice
- actual notice: prior to closing, the buyer has actual subjective knowledge of a prior, unrecorded interest.
- inquiry notice: the purchaser is in possession of facts, or could make an inspection of the property, which would lead a reasonable person to make further inquiry. Notice is valid whether purchaser makes the inquiry or not.
- record (constructive) notice: the prior interest was properly recorded within the chain of title. (Exception: wild deeds— recorded but not in such a way that a reasonable search of the grantor-grantee index would disclose it.)
Mnemonic: AIR
Estoppel by deed
if one purports to convey an interest in realty he does not own, but he subsequently obtains an interest in that realty, he cannot deny the validity of that conveyance and the estate will automatically transfer to the grantee.
note: does not apply to quitclaim deed
Shelter doctrine
one who takes from a BFP will “stand in the shoes of the BFP” and can prevail against any entity against which the transferor-BFP would have prevailed in his own action.
Fee simple absolute
conveys absolute ownership of potentially infinite duration.
Most unrestricted and longest estate.
Fee simple defeasible
allows a property to be held or conveyed to another; however, the property is subject to a stated limitation.
Three types:
- Fee simple determinable
- Fee simple subject to condition subsequent
- Fee simple subject to an executory limitation