Real Property Flashcards
Adverse Possession
1) actual possession: claimant must actually have exclusive use of the property
2) Open + notorious + visible possession: claimant must possess + use the property in a way that a typical owner of similar property would use the property
3) Hostile possession: possession of the land must be without the owner’s consent
4) Continuous use for the given statutory period: at CL it is 20 years; owner may not re-enter to regain possession during statutory time.
Effect of Adverse Possession
1) does not convey marketable title
2) title can be perfected by means of a judicial action
Land Sale Contract SOF requirements
1) must be in writing
2) names of parties
3) signed by parties bound
4) state the consideration
5) sufficiently describe the land
Part Performance (SOF exception)
1) partial payment
2) possession
3) substantial improvement
Marketable Title
title free from reasonable doubt about seller’s ability to convey what he purports to convey
Equitable Conversion
Once contract is signed, the buyer is deemed the owner of real property, even though closing has not yet occurred.
- risk of loss allocated to buyer
Remedies for breach of contract
1) damages
2) specific performance
Damages calculation
Contract price - market price
Specific Performance
The court orders the DF to perform on contract as promised.
1) Contract is valid
2) Contract conditions imposed on PL are satisfied
3) Inadequate legal remedy
4) Mutuality of performance
5) Feasibility of enforcement
6) No defenses
Mortgage
Financing arrangement that conveys a security interest in land where the parties intend the land to be collateral for the repayment of a monetary obligation.
Equitable Mortgage
A buyer delivers a deed to the mortgagee rather than signing a note/mortgage deed; parol evidence is allowable to show intent of the parties.
Foreclosure
a process by which the mortgagee may reach the land in satisfaction of the debt if the mortgagor is in default on the loan.
Order of payment from foreclosure proceeds
1) Fees from attorneys/trustees
2) PMM/secured senior interests
3) Secured junior interests
4) Unsecured interests
Purchase Money Mortgage
A mortgage given to secure a loan that enables the debtor to originally purchase the property; receives priority over non-PMM mortgages, but a PMM may not also get a deficiency judgment against the debtor.
Deficiency Judgement
When a property is worth less than the amount owed on outstanding loans. A lender can sue the debtor personally for the deficiency difference only if:
1) there was a judicial foreclosure; and
2) the loan was not a PMM
Redeem
After mortgage is paid off, property may be redeemed from the mortgage.
Deed of Trust
Similar to a mortgage, except the debtor is the trustor and the deed of trust is given to a 3rd party trustee.
Instalment Contract
A buyer makes a down payment + pays off the balance in instalments.
Difference between an instalment contract and mortgage
In an instalment contract, buyer does not receive a deed until land is paid off, and seller gets forfeiture rather than foreclosure.
If the buyer is in default, seller gets back the property and gets to keep the instalment payments.
Deed
A document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered.
Deed Requirements
1) Identification of the parties
2) In writing + signed by grantor
3) Adequate description of property
4) Words of intent
5) No consideration is required
Types of Deeds
1) quitclaim deed
2) general warranty deed
3) statutory special warranty deed
Quitclaim Deed
Conveys whatever interest the grantor actually has in the property but contains no covenants of title.
General Warranty Deed
Warrants against all defects in title + contains 6 covenants for title.
Present covenants are breached at the time of sale, if breached at all.
i) Seisin: grantor warrants he owns what he purports to own
ii) Right to convey
iii) Against encumbrances
Future covenants run with the land, are continuous, and are breached at the time the grantee is disturbed in possession
iv) Warranty of title
v) Quiet enjoyment
vi) Further assurances
Statutory Special Warranty Deed
Some states enforce promises by statute where the grantor promises that he hasn’t conveyed the property to others + estate is free from encumbrances.
Delivery of Deed
1) words or conduct indicating grantor’s intent to make a present transfer of the deed;
2) acceptance of deed by grantee; and
3) upon delivery, title is passed and irrevocable.
Estoppel by Deed
If one purports to convey an interest in realty that he does not own, but subsequently obtains an interest in that realty, he cannot deny the validity of that conveyance + estate will automatically transfer to the grantee.
Exception: quitclaim deeds not applicable.
Defenses for Conveyance by Deed
1) laches
2) unclean hands
3) waiver
Devise by Will
1) ademption
2) exoneration
3) lapses and anti-lapses
Ademption
Where a testator has devised a specific property to a specific party under this will, but that specific property is no longer a part of the estate at the time of testator’s death
- gift failed and legatee gets nothing
Exoneration
When a person receives a bequest of specific property, and that property is subject to a lien/mortgage.
Recipient receives the property “free + clear” of mortgage, unless testator indicated a contrary intent.
Lapse
If a beneficiary named in a will predeceases the testator.
Bequest fails
Anti-lapse
The predeceased beneficiary’s heir to take; especially if they are the kin to the testator.
Recording Acts
Provide a purchaser of land with a mechanism to determine whether there is an earlier transaction regarding the property that is inconsistent with his own transaction
Helps buyer ensure he is getting good title.
Without recording act, favours first grantee.
Types of Recording Acts
1) Pure race statute
2) Pure notice statute
3) Race-notice statute
Pure Race Statute
The first to record wins; statute rewards the winner of the race to the recorder’s office.
Not common in real life/bar.
Pure Notice Statute
Subsequent bona fide purchaser prevails over a grantee that didn’t record.
Good faith + for value
Race-Notice Statute
A subsequent bona fide purchaser that records first prevails over a grantee that didn’t record first.
Good faith + for value + record first
Who does the recording act protect?
1) subsequent grantees, never the first grantee.
Because CL law of “first in time, first in right” will already apply -> unless a recording act functions to allow the second grantee to take over the first grantee.
2) bona fide purchasers: one who takes value + is without notice of the prior interest
Types of Notice to establish Bona Fide Purchaser
1) Actual notice
2) Inquiry notice
3) Record notice
Actual Notice
When, prior to closing, the buyer has actual subjective knowledge of a prior, unrecorded interest
Inquiry Notice
Purchaser of a property could make an inspection of property which would lead a reasonable person to make further inquiry.
Record Notice
When the prior interest was properly recorded within the chain of title.
Wild Deed
A deed that is recorded BUT not in such a way that a reasonable search of the grantor-grantee index would disclose
ex. Not within the chain of title
Wild deeds do not provide constructive notice.
Shelter Doctrine
One who takes from a bona fide purchaser will “stand in the shoes” of the bona fide purchaser.
Freehold Estate
A present possessory interest in the estate.
Fee Simple Absolute
Conveys absolute ownership of potentially infinite duration.
Fee Tail
Allows an owner of land to ensure the property remains within the family; lasts as long as there are lineal blood descendants of the grantee.
Fee Simple Defeasible
Allows a property to be held/conveyed to another.
3 types:
1) fee simple determinable
2) fee simple subject to condition subsequent
3) fee simple subject to executory limitation
Fee Simple Determinable
Automatically terminates at the occurrence of a specified event.
Fee Simple subject to Condition Subsequent
Has the potential to terminate an estate at the occurrence of a stated event, but termination is NOT automatic.
Fee Simple subject to Executory Limitation
Automatically terminates a preceding estate at the occurrence of a stated event, but estate then passes to a 3rd person rather than reverting to grantor.
Life Estate
An interest that lasts for the lifetime of a person.
Types of Future Interests
1) possibility of reverter
2) right to re-entry
3) reversion
4) remainder
5) executory interest
Reversion
Created when the holder of an estate transfers to another something less than the entire estate.
Remainder
A future interest that can only become possessory upon the expiration of a prior possessory estate created by the same instrument.
Executory Interest
An interest in favour of a future grantee and follows a fee simple subject to an executory limitation.
5-step to assess Rules Against Perpetuities issues
1) Classify the future interests to determine if RAP applies
2) Identify the measuring life in being
3) Identify the triggering event
4) Analyze the possibilities of what could possibly happen
5) Reclassify the interest
Joint Tenancy
When 2 or more people hold a single, unified interest in a property with the right of survivorship.
Creation of Joint Tenancy
1) Time: interest created at the same time
2) Title: parties take in the same title
3) Interest: identical equal interests
4) Possession: the same right to possession of the premises
5) Language: must include the express right of survivorship
Severance of Joint Tenancy
1) conveyance
2) mortgage
3) lease
Tenancy in Common
A concurrent estate where 2 or more own a property with no right of survivorship.
Tenant by the Entirety
Similar to a joint tenancy, but only between spouses and in some jurisdictions, same-sex partners.
Not recognized in CA.
Partition
Occurs when the property is divided/order sold and proceeds distributed through voluntary agreement or judicial action if in the best interest of all parties.
Tenancy
When an owner of land conveys to another a lesser interest in a property.
Tenancy For Years
A lease for a fixed period of time.
Periodic Tenancy
Automatically continues from one period to the next, unless one of the parties terminates the lease by giving notice of termination.
Holdover Tenant
One whose lease has terminated but remains in the premises and tenders rent, which the landlord accepts.
Tenancy At Will
A tenancy for no fixed period of time; can be terminated at any time.
Tenancy at Sufferance
When a tenant wrongfully holds over past the expiration of a valid lease.
Defenses for nonpayment of rent
(i) Failure to deliver possession of premises
(ii) Breach of the covenant of quiet enjoyment
(iii) Constructive eviction
(iv) Destruction of the premises
(v) Potential contract defenses
(vi) Surrender of the premises
(vii) Re-letting of property
Eviction
A landlord may typically terminate a lease for a material breach.
If a tenant abandons the premises, the landlord at his option may:
(i) Accept the surrender + terminates the lease;
(ii) Re-let on behalf of the tenant (tenant must be notified); or
(iii) Leave the premises vacant + sue for rent as it becomes due
Modernly, there is a duty to mitigate imposed on the landlord.
Constructive Eviction
The premises are in such disrepair they are virtually uninhabitable.
Requires that:
1) Premises are virtually uninhabitable for their intended use because of a substantial interference with the property use + enjoyment caused by the landlord/persons acting for him;
2) Notice is given to landlord by tenant;
3) Landlord fails to meaningfully respond; and
4) Causes the tenant to actually move out within a reasonable time.
Actual Eviction
Tenant excluded from entire premises due to a holdover tenant/paramount title holder.
Partial Actual Eviction
Landlord makes it physically impossible for tenant to occupy all/some portion of premises. Tenant does not have to move out and may withhold entire rent.
Types of Waste
1) Voluntary waste
2) Permissive waste
3) Ameliorative waste
Factors to determine whether something is a chattel
(i) Method of attachment
(ii) Adaptability
(iii) Removal
(iv) Intention
(v) Agreement
Appurtenant Easement
An easement that benefits a particular parcel of land; only occurs when the easement benefit is tied to a particular piece of land.
Easement In Gross
An easement whose benefit is provided to an individual and not tied to a particular piece of land.
5 ways to create an easement
1) Express creation in writing in a deed/will
2) Creation by implication from prior use
3) Easement by necessity
4) Easement by prescription: using the same principles as adverse possession
5) Easement by estoppel
Termination of Easements
1) Estoppel
2) Necessity
3) Destruction of servient land
4) Condemnation of servient estate by eminent domain
5) Release in writing
6) Abandonment action
7) Merger doctrine
8) Prescription
Real Covenant
Written promises between 2 parties about how land is to be used that meet certain technical requirements.
Profit
Entitles its holder to the right to enter the servient estate land + remove soil/product of the land itself.
License
The mere right to use the licensor’s land for some specific purpose.
Variance
A property owner can seek a variance (waiver) from a zoning regulation if he can show unnecessary hardship due to the unique features of the property or practical difficulty.
