REAL PROP Flashcards
Must a junior mortgagee be named as a party to a senior mortgagee’s foreclosure action?
Yes.
Foreclosure destroys interests junior to the mortgage being foreclosed.
If a senior mortgage is in default, a junior mortgagee has right to pay it off (i.e., redeem it) to avoid being wiped out by its foreclosure.
Failure to join a junior mortgagee results in preservation of its interest, despite foreclosure and sale.
Must a senior mortgagee be named as a party to a junior mortgagee’s foreclosure action?
No, because a junior mortgagee’s foreclosure will not affect interests of a senior mortgagee.
A buyer at a sale will take land subject to senior mortgagee’s interests.
What is statutory redemption?
Statutory right of a mortgagor to recover his land after foreclosure sale has occurred.
Can usually redeem for up to six months or one year.
Amount to be paid usually foreclosure price.
What is equitable redemption?
Right of mortgagor to recover land by paying amount overdue on mortgage, plus interest.
But if mortgage or note contained acceleration clause - amount to be paid is full balance of the mortgage.
Can be exercised any time before foreclosure sale.
If an easement is said to be surcharged, this means:
The easement’s legal scope was exceeded
Servient landowner may enjoin the excess use and possibly sue for damages if the land has been harmed.
How is the scope of an easement determined.
When scope is specified by parties to the easement- this controls.
When the easement’s scope set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs.
If an easement is surcharged, does the servient owner have power to terminate the lease.
No. but may sue to enjoin use and for damages if there are any damages ot the land.
Can nonuse of an easement for the statutory period terminate an easement.
No - mere nonuse is insufficient to constitute an abandonment of the easement.
To terminate the easement, the nonuse must be combined with other evidence of intent to abandon it.
Will condemnation of the servient estate terminate an easement.
YES - and the easement holder may be entitled to compensation for the value lost (part of the condemnation proceeds)
Can an easement be terminated by voluntary destruction of the servient estate (e.g., tearing down a building to erect a new one).
No - but involuntary destruction of the servient estate (e.g., by fire or flood) will extinguish the easement.
Can an easement be terminated by prescription?
Yes, one must interfere with the easement through long continued possession and enjoyment of the servient estate in a way that would indicate to the public that no easement right existed.
What is termination of an easement by release?
- A release from the owner of the easement interest to the owner of the servient tenement
- must satisfy the formalities required to create an easement
- must satisfy statute of frauds if easement for more than 1 year
How is an easement terminated by abandonment?
- holder manifests intent never to use the easement again
- evidenced by either physical acts or oral expressions of a desire to abandon (e.g. building a structure over the easement)
- accompanied by a long period of nonuse.
