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Real Property Flashcards

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1
Q

In a foreclosure, when can an action for summary proceedings to recover possession be brought?

A

After the time limited by law for redemption has expired, the purchasing party can start summary proceedings to obtain possession of the property.

So, if foreclosure by advertisement, the purchasing party can bring the action at the end of the 6m/1y period of redemption.

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2
Q

How is a joint tenancy destroyed?

A
  1. Death
  2. Conveyed while alive
  3. Sold in contract
  4. Executed deed in title theory state
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3
Q

Who can the bank foreclose on for a tenancy in common?

A

Only on the interest under the mortgage.

A tenancy in common does not unilaterally encumber the other co-tenants!

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4
Q

Rights of Co-Tenants

A
  1. Right to possess entire property
  2. Right to profits: co-tenant not required to share profits earned from property unless there is ouster, depleting resources, or a lease to third-party
  3. Right to contribution: all tenants must share in mortgage and tax payments, as well as NECESSARY repairs.

If it is an improvement, you are not entitled to contribution. However, you can redeem profits from the sale of the property if it is sold.

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5
Q

Tenancy by Years

A

For a specific period of time/event. Expires on happening of event automatically.

Can be oral, unless it is longer than one year.

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6
Q

At-Will Tenancy: Everything

A

Parties must expressly agree that it is at-will or else it is a periodic tenancy.

Either party can terminate at any time (MI requires one months’ notice)

Terminated by:

  1. Death
  2. Attempted conveyance by either
  3. Waste by tenant
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7
Q

Periodic Tenancy

A

Tenancy with no fixed end date. Repeats until one side gives notice (full period).

Created by:

  1. Express agreement
  2. Implication (i.e., no end-date)
  3. Operation of law (oral lease that violates SoF; tenant remains after termination)

Termination requires valid notice:

  1. Tenant < 1 year: give full period of notice
  2. Tenant > 1 year: MI - 1 year; MBE - 6 months
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8
Q

Holdover Tenants

A

Tenant stays past the end of the lease date. LL has two options.
1. Treat them like trespasser, evict, and sue for damages (cannot use self-help to evict or it violates Anti Lockout Statute and they can recover 3x actual damages or $200, whichever is more).

  1. Impose a new tenancy on them (holdover tenancy).
    - Less than one year: measured by previous period
    - Longer than one year: year-to-year

If tenant is just a few hours late leaving, and it is not their fault, you cannot impose a new tenancy on them.

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9
Q

Security Deposits

A

Cannot be used for wear and tear.

In Michigan:

  • Max is 1.5x rent.
  • Deposit must be held in escrow
  • LL must tell tenant that, within 4 days of moving out, they must provide LL with a forwarding address, and LL, within 30 days, will send them an itemized list of deductions and the balance of the deposit
  • Deposit can be used for unpaid rent, utilities, or damages from an unreasonable use of the premises
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10
Q

Duties of a Landlord

A

MI: Must evict using Summary Proceedings

MBE: US Rule: LL must deliver legal and physical possession
English Rule (Minority): LL must deliver only legal possession
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11
Q

MI: Summary Proceedings

A

This governs the eviction process and allows recovery of possession of property:

  1. LL must serve a 7-day written demand for rent, requiring tenant pay or leave within 7 days
  2. If tenant does not pay, LL can file an action in district court
  3. Within 7 days, the court will set the matter for a hearing on issue of nonpayment
  4. If tenant appears and is unable to pay, court will issue judgment for rent and possession.
    - If reason rent is unpaid is problem with premises, LL should request the money be held in escrow while it is investigated
    - Regardless, the judgment should be entered
  5. Tenant will have 10 days to pay or leave the premises. If tenant pays, LL cannot evict
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12
Q

LL Retaliation

A

If tenant exercises a legal right, the LL cannot retaliate.

Retaliation is presumed if the LL acts within 90 days of tenant’s act.
- Does not apply if it was at expiration of fixed-term lease

Burden on LL to show it was not retaliation; must show a valid motive

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13
Q

Types of Eviction

A

For eviction, tenant must actually be physically off the premises, or parts of it.

  1. Actual Total: terminates lease and tenant does not have obligation to pay
  2. Partial Eviction: does not terminate lease and tenant does not have to pay
  3. Constructive: Landlord makes premises unusable/uninhabitable. Three requirements:
    A. Acts were done by LL or their agent
    B. Must be a substantial interference
    C. Tenant abandoned the premises after a reasonable time
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14
Q

Easement Appurtanent

A

Benefits land.

Dominant estate (benefitted): transfers automatically

Servient estate (burdened): does not transfer automatically - only with notice.

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15
Q

Express Easement

A

Must be in writing.

1. If > 1 year, it must also be signed by grantor.

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16
Q

Easement Implied by Prior Use

A
  1. Previous use from common owner who divides land
  2. Use was continuous and apparent (i.e., not hidden)
  3. Use was reasonably necessary
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17
Q

Easement Implied by Necessity

A
  1. Commonly owned parcel is severed
  2. The necessity is strict (i.e., landlocked)
  3. Necessity exists at time of severance and time easement is being sought

Owner of burdened land gets to choose location of easement

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18
Q

Easement by Prescription

A
  1. Open and notorious
  2. Actual
  3. Hostile (without permission)
  4. Continuous
  5. For statutory period (15 MI; 20 MBE)

Does not need to be exclusive

19
Q

Ways to terminate an easement

A
  1. Release: signed writing
  2. Abandonment: act and intent
  3. Merger: the lands merge
  4. Prescription: servient stops the use of the easement for statutory period
  5. Estoppel: representation of fact that was relied on
  6. Servient sells to someone without notice
  7. End of necessity
20
Q

Restrictive Covenants

A

A written promise controlling the use of land.

21
Q

Real Covenant Requirements

A
  1. Privity
  2. Notice
  3. Intent (to bind future successors)
  4. Touch and concern the land

PRIVITY:
Are you trying to get the burden or benefit to run?

  • New servient: burden
  • New dominant: benefit
  • New both: burden and benefit

Burden: Requires Horizontal and Vertical
Benefit: Requires Vertical only (does not need to be the entire interest)

Horizontal: original owners, at some point, had a shared interest (grantor-ee; mortgagor-ee; LLT)

Vertical: original owner gave successor their entire interest.

22
Q

Reciprocal Negative Servitude

A

Requires:

  1. Intent for common scheme (building plan, etc.)
  2. Notice (usually record)

Anyone in the plan can enforce it if the scheme existed when they purchased their land.

23
Q

Equitable Servitude Defenses

A
  1. Changed conditions
  2. Laches: waited too long
  3. Unclean hands: acting in bad faith with similar restriction
  4. Estoppel: statement relied on
  5. Acquiescence: plaintiff lets others do the same
24
Q

How can you terminate a servitude/covenant?

A
  1. Changed conditions

2. Termination by: merger, abandonment, or written release

25
Q

Adverse Possession

A
  1. Open and notorious (not hidden)
  2. Exclusive (without owner or public)
  3. Actual use (what you use is what you claim)
  4. Hostile (without permission)
  5. Continuous (used like owner)
  6. For statutory period (15 - MI; 20 - MBE)
26
Q

Acquiescence Boundary Line Agreements

A

If adjoining property owners acquiesce to a boundary line for more than 15 years, the court treats it as the legal boundary line between those lots.

  • Based on an implied agreement
  • Acquired through adverse possession (although whether it was hostile is questionable)
27
Q

Adverse Possession: Disabled Owner

A

If the owner is disabled, it will toll the clock.

  1. Right person (true owner)
  2. Right time (at time AP entered land)
  3. Right disability (prison, minor, insane)
28
Q

Constructive AP: Color of Title

A

When a deed purports to transfer title to AP, but is bad for some reason.

AP will get the entire tract of land, regardless of action use, as long as:

  1. It is a unitary tract (undivided)
  2. AP possessed a reasonable amount of the land, compared to the whole.
29
Q

Fixtures vs. Chattels (Entire Analysis)

A

Fixture: Chattel that is so affixed to land that it becomes part of the realty. It cannot be removed. It follows the property.

Chattel: Removed before the other party gets the right to possess the premises. Must be removed before closing/before end of lease.
- Tenant must pay for any damages associated with removal.

TEST:

  1. Degree to which item is attached to realty
  2. Extent to which item is adopted to the use of the realty
  3. Whether the parties intended to make the good ascend to the real property

(If it is custom fit, it is probably a fixture)

30
Q

Trade Fixtures

A

MBE: They are chattel and are removable.

MI: If leasehold, it is NOT a fixture and can be removed. If it is a non-leasehold, apply the chattel vs. fixture test to determine.

31
Q

Condo Associations

1) How is it created?
2) Are restrictions enforceable?

A

Created through executing and recording a master deed. Owner of the condo attaches a set of bylaws and a condo subdivision plan.

A restriction in the declaration:
Presumed reasonable if it is recorded. Unreasonable if it is arbitrary or substantially outweigh the benefits to the co-owners.

If not in the master deed:
The rules enacted must be reasonably related to promoting the health, happiness, and peace of mind of the project owners, collectively.

32
Q

Profits

A

Right to go to someone’s land and take a resource.

Transferable and inheritable

33
Q

Support Rights

A
  1. Lateral Support: support form the sides (excavation)

The person who causes the cave-in is strictly liable if:

  1. Land is in natural condition; or
  2. Cave-in would have happened even if there were no improvements.

If the cave in would have happened regardless, see if there is a claim for negligence.

  1. Subjacent Support (support form under land)
    - Strictly liable if land collapses
    - Only liable for negligence to buildings
34
Q

Executing a Deed: Requirements

A
  1. Identity of parties
  2. Description of land
  3. Words of grant
  4. Signed by grantor
35
Q

Estoppel by Deed: Exceptions

A
  1. Quitclaim deed

2. Grantor sells to BFPV

36
Q

Types of Mortgages

A
  1. Mortgage
  2. Land instalment contract (look for forfeiture clauses)
  3. Equitable mortgages (treated like mortgages): Sale/Lease with option to purchase; Absolute deed with separate promise to re-convey
  4. Deed of Trust
37
Q

Mortgagor: Transfers

A
  1. Subject to (transferee not liable)
  2. Assume (transferee and transferor liable)
  3. Novation (transferee liable)

If due on sale clause exists, the entire balance of the mortgage can be called in if the mortgage is transferred. HOWEVER, if it was taken subject to, the transferee is not liable even for the due on sale clause

38
Q

MI: Foreclosure by Advertisement

A
  1. There must be a default and PoS provision
  2. At least once a week, for four weeks, there must be a publication of the planned foreclosure sale in the area that the property is intended to be sold
  3. Within 15 days after the first publication, notice of foreclosure must be posted on a conspicuous part of the property
  4. The purchaser must record the deed within 20 days
39
Q

MI: Statutory Right of Redemption

A

If you owe less than 66.6% on the mortgage at the time foreclosure begins, you have one year to pay off the price.

If you owe more than 66.6% on the mortgage, you have six months.

40
Q

Right to Inspection

A

Buyer has a right to inspect after their purchase and at any time afterwards if they provide 72 hours’ notice.

If buyer believes property damage is imminent, or has happened, or their request is unreasonably denied, they can bring an eviction proceeding to terminate the right of redemption.

41
Q

Life Tenant: Duties

A
  1. Voluntary: affirmative act outside the normal use of the premises

Depleting resources is unless three things (repair/maintenance, right, normal use)

  1. Permissive: tenant fails to maintain the estate

Tenant must pay taxes, pay interest on mortgage, maintain the property with ordinary repairs (no duty to improve the property — just make the repairs. Not required to spend more income than received from the land).

  1. Ameliorative Waste

Tenant can only increase value of the land if the market value is not diminished and, either the remainder men do not object, or there was a substantial change in the neighbourhood that deprives the property of its current use

42
Q

Vested Remainders

A
  1. Ascertained person
  2. Subject to open/partial divestment: entire class not yet known
  3. Subject to total divestment: remainder is vested, but the right to possession may be defeated due to a CS
43
Q

Cy Pres

A
  1. Property is in trust for charitable purpose;
  2. It is impossible, impracticable, or illegal to carry out the charitable purpose, and
  3. The settlor manifests a general intent to devote the property to charity.

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