Real Property Flashcards
Quitclaim Deed & Warranty Deed July 2014
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*
Estoppel by Deed July 2020
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
Michigan’s Sellers Disclosure Act - July 2015
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
Recording Act ** [HEAVILY TESTED] July 2017, Feb 2016
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.
Mortgage
Novation - Feb 2016
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.
Statutory Right of Redemption **
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
Foreclosure by advertisement ** July 2017
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.
Deficiency
Mortgagee whose interest is wiped out by a foreclosure sale can still sue the debtor personally
Joint Tenancy* Feb 2020
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.
Tenancy in Common**
Renting Interest
Partitioning Tenancy in Common
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
Tenancy by the entirety *** [MOST TESTED TYPE OF TENANCY]
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
Terms for Years - Landlord/Tenant
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
Tenancy at Will - Landlord/Tenant
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.
Holdovers** - Landlord/Tenant
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)
Periodic Tenancy
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.
