Real Property Flashcards
Deed
Deed must be in writing, sufficiently describe the land, identify grantor and grantee, evidence intent to convey land and be signed by grantor.
if grantee name is left blank some courts presume person taking delivery authorized to fill it in.
Adverse possession
adverse possession actual and exclusive, open and notorious, hostile and continuous use for statutory period.
paying prop. taxes not required but good evidence of claim of right (hostility)
BFP and recording acts
Notice recording act = Subsequent BFP prevails over prior grantee even without recording
BFP = purchaser for value without actual, record, or inquiry notice of prior claim.
Actual notice = knowledge
inquiry = what inquiry of property would have revealed
record = properly recorded deed in chain of title (no notice if wild deed (recorded out of the chain of title) Tract search reveal all interests related to land grantor/grantee index all recoded intersts from common grantor
BFP not protected against interests arising by operation of law. (ADVERSE POSSESSION)
Shelter rule = transferee from BFP prevails against what BFP would have prevailed against. Shelter rule applies even if transferee has actual knowledge of prior interest
Conveyance
common law: conveyance to 2+ persons satisfying 4 unities (time, title, interest, possession) creates joint tenancy. Joint tenancy has right of survivorship - when tenant dies, property freed from her interest
Joint tenants inter vivos conveyance of interest severs joint tenancy makes it tenancy in common. (Mortgage is conveyance in title theory state and a lien theory state but not severance
joint tenancy severed when joint tenant executes valid contract to convey her interest.
modern law conveyance to 2+ persons creates tenancy in common and joint tenancy results only when there right of survivorship is clearly expressed.
Equitable conversion
once K is signed and parties entitled to specific performance, buyer considered owner of real property; sale proceeds considered personal property
Seller or buyer die before closing
if buyer dies before closing, purchaser gets deed (and becomes tenant in common if joint tenancy)
if seller dies before takers of her real property must transfer title at closing; proceeds pass to takers of her personal property.
Easements
Notice jurisdiction subsequent BFP takes free of prior interests.
is terminated when owner demonstrates intent to permanently abandon. Nonuse insufficient needs other evidence of intent
terminated when dominants and servient land owned by same person
easement is implied from existing use when before tract is divided, apparent, and continuous use on servient part is reasonably necessary for enjoyment of dominant part and parties intended use to continue after division
Covenants
Covenant against encumbrances = no encumbrances against title conveyed
present covenant would be breached at time of conveyance, doesn’t run with land to later grantees
Fee simple subject to condition subsequent
= grantor retains power to terminate grantees estate on happening of specified event.
grantor must expressly reserve right of entry and must sue or reenter to terminate FSSCS
words to create FSSCS “upon condition that” provided that” but if etc
fee simple determinable
= estate that automatically terminates upon happening of stated event, reverts to grantor
words to create FDS = for so long as, while, until
policy for courts to avoid forfeiture of estates
ambiguous terms = presumption in favor of FSSCS
Future interests
Future interests are devisable and pass at death unless express/implied contingency of survival
Priority
priority is determined by when mortgage placed on property
obligatory future advance has same priority as original mortgage. optional future advance with notice of junior lien loses priority.
Constructive Conviction
Covenant of quiet enjoyment = L won’t interfere with T’s enjoyment and possession of premises. L can breach covenant through constructive eviction. Constructive eviction = L breaches legal duty to provide T service, breach deprives T of use/enjoyment of premises, T gives L notice/reasonable time to repair, T vacates within reasonable time.
L’s duty to repair/maintain can come from lease, statute, or implied warranty of habitability.
Tenancies
Tenancy for years continues until end date. If T abandons without justification, L may do nothing or repo.
If L repos then T is liable unless L accepted T’s surrender.
Surrender must be written if remaining term greater than a year. If no surrender T is liable for difference between promised rent and fair rental value
L must try to mitigate damages after T abandons. L’s recovery will be reduced by failure to mitigate.
Builders implied warranty of fitness
Builder’s sale of new house carries implied warranty of fitness/quality
warranty = house is designed/constructed in reasonably workmanlike manner and suitable for human habitation.
Some courts extend implied warranty to remote grantee because buyer of new construction cannot inspect (if privity between builder and seller)
