Real Property Flashcards

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1
Q

Quitclaim Deed & Warranty Deed July 2014

A

Quitclaim deed - Grantor promises nothing and grantee gets whatever the grantor has. Grantee cannot successfully sue on deed

Warranty deed - grantor gives 6 implied covenants
Right to convey *
Covenant of seisen
No encumbrances
Further assurances 
Quiet enjoyment *
Warranty*
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2
Q

Estoppel by Deed July 2020

A

If a grantor transfers property by WARRANTY DEED to a grantee, that the grantor does not have title to yet, when the grantor later acquires title, the title will pass directly to the grantee who should have initially received it

Exception: if grantor also conveys land to BPV after conveyance to initial grantee

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3
Q

Michigan’s Sellers Disclosure Act - July 2015

A

A party transferring property is required to provide a written disclosure statement to the purchaser. It requires the transferor to disclose any history of infestation, including termites. Disclosure must be made in good faith. Transferor not liable for inaccuracies if the info was not within the personal knowledge of the transferor or was based entirely on info provided by an expert and ordinary care was exercised in transmitting the information

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4
Q

Recording Act ** [HEAVILY TESTED] July 2017, Feb 2016

A

There is no requirement of recordation to have a valid title, but recording protects your interest against subsequent grantees. Michigan has a race notice act which protects subsequent grantees who are bonafide purchasers for value who take w/o notice and are first to record. Notice can be actual or constructive.

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5
Q

Mortgage

Novation - Feb 2016

A

A mortgage is a security interest in real property held by a lender as security for a debt.

Novation occurs if the initial mortgagor, the new transferee, and the mortgagee all agree that the mortgagor is no longer liable and the transferee assumes all of his duties.

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6
Q

Statutory Right of Redemption **

A

The statutory right of redemption allows a mortgagor to get property back after the foreclosure sale by paying the amount the purchaser paid for the property, plus all taxes, insurance, fees and interest. This has the legal effect of voiding the purchaser’s deed. For a non-abandoned residence subject to a mortgage executed after Jan 1, 1965, the redemption period is 6 months ( if amount due on mortgage at time of notice of foreclosure is more than 66% of the original indebtedness secured by the mortgage). Redemption period is 1 year, if amount owed is less than 66%. One month if property is abandoned

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7
Q

Foreclosure by advertisement ** July 2017

A

Michigan recognizes foreclosure by advertisement.
To foreclose by advertisement
1) there must be a default on the mortgage loan, and a power of sale clause in the mortgage. Mortgage containing the power of sale must be properly recorded.
2) Mortgagee must publish notice that motgge will be foreclosed by sale by publishing the notice for 4 weeks at least one each week in a newspaper published in county where premises is located

3) within 15 days after the first publication of notice, the mortgagee must post a copy of the notice in a conspicuous place on the premises
4) a public foreclosure sale must be held and the purchaser must record the deed within 20 days of the sale.

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8
Q

Deficiency

A

Mortgagee whose interest is wiped out by a foreclosure sale can still sue the debtor personally

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9
Q

Joint Tenancy* Feb 2020

A

Joint tenancy is characterized by the four unities, that is, unity of interest, unity of title, unity of time, and unity of possession. Each joint tenant shares in possession of the entire estate, and each is entitled to an undivided share of the whole. The principal characteristic of the joint tenancy is the right of survivorship.

A joint tenancy is destroyed by partitioning ( by voluntary agreement or judicial action) OR
severance ( G-SAM)
- conveyance during life
- signing a K for sale for your interest
- actual foreclosure by a judgment lien creditor

If one joint tenant conveys his interest to a third party, then the remaining joint tenant and the grantee become tenants in common, thus destroying the element of survivorship. Tenants in common have a right to compel partition.

To create a joint tenancy the exact words “joint tenancy/joint tenants” must be used. When express words of survivorship appear in the granting instrument, it does not result in a joint tenancy. It results in a joint life estate with alternative contingent remainders. In this type of joint tenancy, survivorship rights cannot be destroyed by the act of a cotenant.

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10
Q

Tenancy in Common**

Renting Interest

Partitioning Tenancy in Common

A

Tenants in common have the right to possess the whole premises. They do not have a right of survivorship, and it is the default tenancy in Michigan.

Tenants in common can hold unequal shares of the land, and can convey their undivided interest or lease their interest to a 3rd party. Rent collected by the 3rd party must however be shared w/ co-tenants

Tenants in common have a right to compel partition.
A partition occurs where the property is divided into shares pursuant to co- tenants’ respective interests in the property or the property is sold, and the proceeds are proportionately distributed. This can occur by voluntary agreement of all co-tenants or by judicial action if one co-tenant insists on a partition

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11
Q

Tenancy by the entirety *** [MOST TESTED TYPE OF TENANCY]

A

In Michigan, there is a common-law presumption that a tenancy by the entirety is created when a validly married couple takes property as joint tenants and share the unities of time, title, interest, and possession.

In a tenancy by the entirety, each spouse is considered to own the whole and, therefore, is entitled to the enjoyment of the entirety and to survivorship. A tenant by the entirety can’t unilaterally encumber, or dispose of the property. A tenant by the entirety, does not have a separate or individual property interest . Both tenants must act together.

A tenancy by the entirety ends if there is death, finalized divorce, mutual agreement, or a joint creditor of BOTH spouses forecloses on the interest

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12
Q

Terms for Years - Landlord/Tenant

A

Tenancy for a specific period of time. Can be oral unless it is for over a year. Expires automatically on the end date w/o notice

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13
Q

Tenancy at Will - Landlord/Tenant

A

Must be expressly agreed to, otherwise this is a periodic tenancy. Either party may terminate a tenancy at will. One month’s notice is required to terminate.

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14
Q

Holdovers** - Landlord/Tenant

A

A holdover tenancy occurs when the tenant stays on the property past the end date of his lease. The landlord can 1) treat him as a trespasser, evict him and recover damages using the court process or 2) impose a new tenancy on him measured by how often the rent is paid.

If a landlord engages in self help, the person ejected can recover 3x the amount of actual damages or 200$ (whichever is greater)

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15
Q

Periodic Tenancy

A

Has no fixed end date. Repeats until one party gives valid notice at the end of a natural lease period, one full period in advance.

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16
Q

Duties of a tenant** (landlord/tenant)

A

Tenant must pay rent* and must not commit waste.

17
Q

Trespassors & squattors ( landlord/tenant)

A

If a person is trespassing or squatting, an owner does not need to file an eviction notice. They can use self-help to evict the squattor or trespassor

18
Q

Evicting a tenant using summary proceedings***

A

Landlord should serve the tenant a 7 day written demand for nonpayment of rent. Tenant can pay or leave within 7 days of delivery.

If tenant does not pay or leave, property owners can evict a tenant if they do not pay rent, however evictions must be pursuant to a lease. Landlord can file a complaint for eviction in court. No earlier than 7 days after complaint is filed, the court may set the matter for a hearing.

RE RENT:
If tenant appears and is unable to pay court will issue judgment for rent and possession. If there is a reason tenant is not paying is because of a problem on the premises, landlord should ask for rent to be held in escrow while merit of tenant’s complaint is investigated.

Tenant has 10 day appeal period, because in either case a judgment requiring payment of rent is required.

FOR POSSESSION:
A judgment must be issued for possession in favour of landlord, and tenant will be ordered to vacate the property by the date indicated in the judgment or pay the rent by a certain date. Should Harry refuse to pay the rent or otherwise comply with the judgment, a landlord may evict the tenant pursuant to an order for eviction by the court.

19
Q

Landlord retaliation against a tenant*

A

If a tenant exercises a legal right, a landlord cannot retaliate. Retaliation is presumed if the landlord acts within 90 days after the tenant exercises his legal right.

20
Q

Real Covenants & Equitable Servitudes

A

Covenants and servitudes restrict how an owner can use his land. They are written promises to do or not do something on the land. They bind future owners of the land.

P sues under a theory of breach of real covenant if he wants money damages. For a real covenant to bind successors there needs to be privity (both horizontal and vertical for burden to run, and only vertical for benefit to run), intent, notice, and the covenant needs to touch and concern the land.

Sue under theory of equitable servitude if p wants an equitable remedy. Need servitude to touch and concern the land, intent to bind future successors, and notice to person servitude is being enforced against

21
Q

Easements [MOST HIGHLY TESTED AND TESTED IN 2021]

Kinds?

Termination?

A

An easement is a non-possessor interest that gives one a right to use the land of another

Easements:
Appurtenant - benefits land ( 2 different estates), default
Gross - can’‘t transfer personal easement in gross but can transfer commercial easement ( utility lines)

Kinds of Easements

  • express
  • necessity (severance of commonly owned parcel)
  • pre-existing use ( previous use from a common owner who subdivides land, use was continuous, use was reasonably necessary, and use was apparent)
  • prescription - CHANG(15 YEARS IN MICHIGAN)

Terminates by

1) merger
2) release (writing & signed)
3) abandonment ( intent & act)
4) estoppel ( representation of fact & other party relied on it)
5) prescription - servient estate stops use of easement and keeps it stopped for statutory period
6) end of necessity

22
Q

Fixtures***

A

A fixture is a chattel so affixed to the land that it becomes part of the realty. It cannot be removed by the seller or a tenant.

Test to determine if something is a fixture:

1) degree to which the item is annexed to the realty
2) extent to which item has become adapted to the use of the real estate and
3) whether the parties intended to make the good an accession to the real property

23
Q

Trade Fixture*** [HEAVILY TESTED]

A

Trade fixtures are chattels that are used in business.

In a leasehold estate, a trade fixture is not a fixture at all. Thus a tenant at the termination of his lease may remove fixtures that he installed for his trade.

For non-leasehold estates, the 3 part test for fixtures is used.

24
Q

Adverse Possession [HEAVILY TESTED]

A

A trespassor can gain title to the land by adversely possessing it for a period of 15 years. The trespasser will only acquire the rights to the land that the owner has.

Continuous (like how a true owner would use it) , Hostile (w/o permission), Open and Notorious (visible), Actual possession, Goes on for statutory period of 15 years, and is exclusive.

25
Q

Acquiescence*

A

If adjoining property owners acquiesce to a boundary line for more than 15 years, the courts treat that line as the legal boundary between the lots. This is based on an implied agreement between the property owners.

On an essay also mention adverse possession & how hostility is not present.

26
Q

Implied Warranty of Habilitability

A

Landlords have a general duty to keep residential premises in a habitable condition - fit for the use intended by the parties. The landlord has to keep the premises in reasonable repair and abide by health and safety laws. If they breach the warranty, the tenant can move out and terminate the lease, or stay and sue for damages.