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Real Property Flashcards

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1
Q

Concurrent Estates: Joint Tenancy

A

Characteristics
. Right of survivorship: last one takes all
. Alienability: can sell during life
. Not descendible or Devisable: cannot pass by intestate succession or will
Creation
. The Four Unities
1) T: at the same time
2) T: title, same title
3) I: Identical interests
4) P: Right to possess the whole
. Clear expression of intent to create: Magic words: To A and B 1) as joint tenants 2) with the right of survivorship
Severance
. Alienable: may sell during lifetime without other’s knowledge or consent
. Disrupts the 4 unities so the sale severs the joint tenancy to the seller’s interest and becomes a tenant in common- E.g. A 1/3, B1/3, C1/3- A Sells=A2 1/3, B &C 2/3
. Partition
1) Voluntary agreement of parties
2) Judicial Action/Partition in kind: action for physical division if in interest of all parties- use if property is large
3) Judicial Action/Forced Sale: land is sold and proceeds are divided- use if cannot partition, one building
. Will not result in severance:
1) Mortgage
 Majority: Lien Theory of Mortgages: if JT encumbers mere lien, not enough to sever JT-JT execution in lien will not severe JT
 Minority: Title Theory: encumbrance by lien will sever
2) Murder: if JT unlawfully and intentionally kills a co-tenant, any property is transformed into a tenancy in common
WISCONSIN: murder operates as severance

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2
Q

Concurrent Estates: Tenancy by the Entirety

A

. Marital estate that arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise
. WISCONSIN: community property state, does not recognize this type of tenancy
. Protected:
1) Unilateral conveyance or encumbrance: one spouse cannot defeat the right of survivorship by unilateral conveyance
2) Creditors: unilateral creditors cannot touch to satisfy debit – but creditor of both spouses can
. Severance: death, divorce, mutual agreement, of execution by joint creditor can sever

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3
Q

Concurrent Estates: Tenancy in Common

A

. Concurrent estate with no right of survivorship, can have unequal shares: presumed over joint tenants unless magic words used
. Characteristics:
1) Each own individual part and right to possess the whole
2) Devisable, descendible, and alienable *Frequently tested bc no survivorship right
Rights and Duties
. Possession: right to possess all portions of the property but no right to exclusive possession of any part
. Ouster: if one co-tenant excludes another from possession of the whole, actionable wrong
. Rents & Profits: unless ouster- all rents and profits are split by fair share based on ownership amount, adverse possession- if one decides to mot use the property, the other cannot adversely possess unless hostility and ouster which leaves a legal remedy
. Carrying costs: taxes and mortgage- split based on fair share
. Repairs: notification and based on fair share
. Improvements: Need notification and consent of all tenants, Partition: improver gets credit for any improvement and debit for any loss in value of the property
. Waste:
1) Voluntary: willful destruction
2) Permissive: neglect that leads to waste
3) Ameliorative: unilateral change that increase value- knock down cabin to have drive in- can get sentimental loss
. Partition: voluntary, partition in kind, or forced sale- courts prefer partition in kind, must have reasonable nature and time
. Encumbrances: one may encumber their interest, but not the whole, will not dissolve TinC except when foreclosure sale

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4
Q

LL & T: Tenancy for Years

A

. End Date: Known, fixed determined period of time- 1 week-5 years
. Termination: automatically, without notice, at end date
. Breach of Lease: landlord reserves the right of entry if the lessee breaches the covenant e.g. fails to pay rent
. Surrender: if tenant surrenders and lessee accepts – may need writing to satisfy SOF
. Writing: SOF if greater than one year must be in writing or switches to a Periodic Tenancy for term

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5
Q

LL & T: Periodic Tenancy

A

. Successive intervals with no end date, continuous until properly terminated
. Creation:
1 Express: R conveys to O from month to month or year to year
2 Implication: land is leased with no mention of duration but provision is made for the payment of rent at set intervals
3 SOF is broken under Tenancy for Years, measured by the way rent is tendered
4 Holdover: if a landlord elects to hold over a tenant who has wrongfully stayed , an implied periodic tenancy arises if they accept the rent for the period out of the lease
. WISCONSIN ONLY: SOF violation- tenant becomes an implied month to month, if agricultural or nonresidential: year to year
. Termination: automatically renewed until proper notice is given
. Week: one week
. Month: one month
. Year: CL: 6 months Restatement: 1 month*Preferred bar approach
. WISCONSIN: 28 days to terminate all periodic, except year to year is 90 days

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6
Q

LL & T: Tenancy at Will

A

. No fixed duration- terminable at will of either: To T for as long as T or L desires
. Creation: must be created by an express agreement that it is at will
. Termination: can be terminated by either at any time, usually requires notice and reasonable time to vacate in most states, or by death
. WISCONSIN: termination is 28 days

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7
Q

LL & T: Tenancy at Sufferance

A

. Creation: tenant wrongfully holds over- landlord is permitted to recover rent
. Termination: short lived and only until the landlord either evicts or elects to hold the tenant to a new tenancy

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8
Q

Tenant: Duty to Repair

A

When Lease is Silent
. Obligation to Maintain: routine repair (clogged sink) obliged to make but not ordinary wear and tear
. Must not commit Waste
1) Voluntary: overt conduct damages the premises- nail holes
2) Permissive: fails to take reasonable steps to protect- windows open during storm
3) Permissive waste: unilateral alters the property increasing value-generally liable for cost of restoration Exception: long term tenant and change reflects changes in neighborhood
Express Covenants
. Destruction: CL tenant was responsible for any loss to the property including forces of nature
. Majority Modern View:
1) Residential: tenant covenant has express, landlord still liable unless damages caused by tenant
2) Nonresidential: covenant to repair is enforceable and landlord may be awarded damages for breach

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9
Q

Tenant: Duty to Pay Rent

A

. Evict: if tenant fails to pay rent, landlord can evict through courts and collect rent
. Sue: landlord can let the tenant remain and sue for back rent
. WISCONSIN: if week to week fails to pay, tenancy is terminated with notice and failure to pay for 5 days, month to month: 14 days notice, year to year: 5 day notice to cure, then 14 day notice to vacate without right to cure
. Self-help: landlord may not engage in self-help- changing locks, forcibly removing tenant or possessions- criminal and civil punishments
. Tenant Breaches but is out of possession:
. Surrender: choose to treat as an implicit offer of surrender
. Ignore: do nothing and hold them responsible for rent *Only in minority of states
. Re-let: on the tenant’s behalf and hold them liable for any deficiency *Majority
. Rent Deposits: require interest payment and used for damages, if not returned there are actions for damages- *Clauses that avoid damages are void

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10
Q

Tenant’s Duties

A

Duty to repair and pay rent

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11
Q

LL Duties

A

Duty to Deliver Possession
Implied Covenant of Quite Enjoyment
Implied Warranty of Habitability
Retaliatory Eviction
Antidiscriminatory Legislation

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12
Q

LL Duty to Deliver Possession

A

. Majority rule requires the LL put the tenant in actual physical possession of the premises, if not LL is in breach and T gets damages

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13
Q

LL Duty: Implied Covenant of Quite Enjoyment

A

. Tenant has right to quiet use and enjoyment of the premises without interference, occurs:
1) Breach by wrongful eviction: exclusion from whole or part, partial relieves the tenant of the obligation to pay rent for the entire premises, even though they occupy the remainder
2) Constructive Eviction: unsuitable for occupancy, rains=apartment floods, elements SING:
. Substantial Interference
. Notice to LL and they fail to fix
. Goodbye: the T must vacate
. Acts of Other Tenants: general rule- no duty, two exceptions
1) Duty to abate nuisance on site
2) Duty to control the common areas

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14
Q

LL Duty: Implied Warranty of Habitability

A

. ONLY RESIDENTIAL not commercial tenants
. Nonwaivable
. Premises must be fit for basic suman habitation- running water and plumbing, heat in winter
. Determined by local caselaw and housing codes
. Tenants Options if breached:
1) Move out and terminate lease, but do not have to
2) Repair and deduct
3) Reduce rent in escrow account to show good faith
4) Remain in possession, pay rent and seek money damages
*Differences between Quite Enjoyment and Habitability: QE: must leave, can be used by any resident or commercial resident, H: can stay, only residential

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15
Q

LL Duty: Retaliatory Eviction

A

. May not terminate lease or penalize tenant if they exercised legal rights- whistleblower
. Courts presume retaliation if LL acts within 180 days of complaint, must show valid, not retaliatory reason

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16
Q

LL Duty: Antidiscrimation Legislation

A

. Civil Rights Act: bars racial or ethnic discrimination in sale or rental of property
. Fair Housing Act: protects based on race, color, religion, national origin, sex, or disability, exemptions:
1) owner-occupied buildings with 4 or fewer units ** ON EXAM
2) Single family homes rented who owns no more than 3
. Prohibited Actions:
. Refusing to negotiate , rent or sell housing
. Providing different terms or conditions for sale or rental
. Falsely representing that dwelling is not available
. Reasonable Accommodations: when FHA applies, LL must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at tenant’s own expense. LL must make reasonable accommodations in rules to allow them to use dwelling

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17
Q

Assignment

A

May be subject to tort liability tenant
. Transfer of the entire remaining term of a lease, may need prior written approval
. Assignee: has privity of estate with LL, LL can sue them or the OG T
. OG Tenant: has privity of contract with LL, Assignee never agreed to that so LL can hold OG T liable if T2 bails

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18
Q

Sublease

A

May be subject to tort liability for tenant
. Transfer of less than the remaining time of the lease
. Subleasee is neither privity of estate or privity of contract- relationship between T1 and LL remains intact
. T1 can sue T2 for breach or LL can sue T1, LL cannot sue T2

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19
Q

LL Tort Liability: CLAPS

A

. Common areas: hallways, elevator, stairs
. Latent defects: LL has duty to warn not fix
. Assumption of Repairs: no duty to repair, but if undertaken, must have good faith effort free from negligence
. Public Use Rule: LL who lease public space is liable for any defects that cause injury to members of public bc no time for T to fix
. Short-Term Lease: under stricter duty, liability for any defective condition which proximately injures a tenant
Modern Trend: general duty of reasonable care

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20
Q

Easements

A

. Grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land
. Presumed to have perpetual duration unless expressly limited

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21
Q

Types of Easements

A

. Affirmative: right to go onto and do something in the servient land
. Negative: prevent the servient landowner from doing something otherwise permissible, must be created by express written easement; LASS
. Light
. Air
. Support: excavation of minerals that would damage the stability of your land
. Stream Water from an artificial flow
. Wisconsin: recognizes solar and wind negative easements

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22
Q

Appurtenant Easement

A

Automatic transfer without mention in the deed, when it benefits its holder in physical enjoyment of land, 2 parcels must be involved 1) dominant 2) servient

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23
Q

In Gross Easement

A

transferable only if commercial, confers a personal or pecuniary advantage, only one land is burdened: billboard on land, right to swim, lay power lines

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24
Q

Easement Creation

A

. Prescription: adverse possession, must be COAH- Continuous and uninterrupted, Open and notorious, Actual use that does not need to be exclusive, and Hostile use or without consent *WISCONSIN period of time is 20 year for prescriptive easements or 10 years if the possessor is a public utility
. Implication: quasi-easement, when parcels are split but use the same utilities 1) the previous use on the servient part was apparent and continuous, and 2) the parties expected the use would survive division
. Necessity: landlocked sale, must have implied easement of access
. Grant: memorialized in writing and signed by servient estate unless under SOF
*Cannot reserve an easement for another person, only oneself

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25
Q

Easement Termination: END CRAMP

A

. Estoppel: oral expression of intent to abandon must have writing or action, but if servient owner materially changes their position to reasonably rely, easement is extinguished- put in a pool
. Necessity: automatically expire when necessity ends, unless express grant
. Destruction: other than willful conduct of servient owner will terminate
. Condemnation: may require compensation
. Release: given by easement holder
. Abandonment: must show physical action as an intent to discontinue use- build building in way
. Merger: unity of ownership will extinguish
. Prescription: servient owner may extinguish by interfering with adverse possession COAH

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26
Q

License in Land

A

. mere privilege to enter another’s land for some narrow and delineated purpose
. revocable at will of licensor
. Not subject to SOF so no writing needed
. Failed attempt to create an easement results in license- if grantor orally grants easement for over 1 year=license
. Classic Cases:
1) Ticket: someone bought a ticket- Phantom of Opera, can ask you to leave, have right to recover but must leave
2) Neighbor’s talking by fence: neighbor says to other, you can walk through anytime, - violates SOF so license, can be freely revoked

27
Q

Profit in Land

A

. entitles holder to enter servient land and take some resources: soil, minerals, timber, oil, fish or game
. All rules of creation, alienation, and termination are same as easements
. Surcharge: Profit may be extinguished due to over burden on estate

28
Q

Covenant

A

. Written promise to do or not do something
. Affirmative: promise to do something related to land- maintain fence
. Negative: restrictive covenants: promise to refrain, promise not park, build for commercial purpose, limitless

29
Q

Covenant v. Equitable Servitude

A

Difference is the remedy being seeked: Equitable servitude has injunctions, Covenants get money damages

30
Q

Restrictive Covenants: Requirements for Burden to Run

A

Harder to get, also requires horizontal privity and notice
If they expressly agreed, need WITHN
. Writing
. Intent – promise on behalf of herself, her successors, and assigns
. Touch and concern – of and pertaining to land
. Horizontal & vertical privity- original promise from burden to benefitted
Horizontal: need relationship: grantor grantee, LL T, Mortgagor mortgagee *Often impediment, but most often will work because grantor/grantee (at time of sale)
Vertical: nexus between successor and original covenanting party- nonhostile- much easier to establish, can in deed or will, just not adverse possession
. Notice: A-2 must have notice of actual, inquiry, or record notice

31
Q

Restrictive Covenants: Requirements for Benefit to Run

A

Does the successor have standing to enforce the covenant, WITV
. Writing: original promise must be in writing
. Intent: intended it to run
. Touch and Concern: the land
. Vertical Privity: must be nonhostile nexus between B1 and B2
*Horizontal privity not needed to run

32
Q

Restrictive Covenants: Equitable Servitude

A

. Promise equity will enforce against successors of burdened land- regardless of whether it runs with the land at law
. Relief if covenant cannot run and fairness requires
. Injunctive relief
Creation: WITNES
. Writing:
. Intent
. Touch and Concern
. Notice
. ES: Equitable servitude
***Require NO PRIVITY to enforce an equitable servitude

33
Q

Implied Equitable Servitude: Common Plan

A

. Exception to general writing requirement, common plan on 50 lots with 1 lot not being restricted as the others
. Common scheme- reciprocal negative servitude
. Elements of Common Scheme:
. Developer had general scheme of residential development- plats, general pattern of restriction, oral representations to buyers
. Defendant had notice of promise contained in prior deeds when took, forms of notice:
1) Actual notice- by oral or written information
2) Inquiry notice- neighborhood seems to conform
3) Record Notice: publicly recorded notices of other lots
. If general scheme arises after initial lots were sold- cannot use common plan
Equitable Defenses
. Neighborhood conditions have changes so significantly that enforcement would be inequitable- not piecemeal
. Unclean Hands: person seeking restriction is violating also
. Estoppel: reasonable person would have believed the covenant was abandoned
. Latches: benefitted party failed to bring suit

34
Q

Adverse Possession

A

. Possession for statutorily prescribed period of time can ripen into title to real property
. Results from the operation of SOL for ejectment if an owner does not take action
. COAH
. Continuous: without interruption, as the owner might use- summer house, use every summer
. Open and Notorious: not being hidden and apparent to owner
. Actual and exclusive: exclusive of true owner, if owner is there- no hostility- if entered under color of title, you thought it was your land, it does not need to be hostile and get all land in deed
. Hostility: without owner’s consent -PERMISSION defeats hostility, their state of mind does not matter
. Tacking: may tack onto predecessor’s time so long as they are in privity, or nonhostile nexus, deed, will, NOT OUSTER, Ouster defeats privity
. Disability: SOL will not run against owner who is afflicted by disability at the inception of adverse possession- minor, mentally incapacitated, jailed

35
Q

Land Sale Contracts: Conveyance

A

2-step process
1) Land Contract- equitable title- short lived escrow period for buyer to inspect and get mortgage
2) Closing: legal title- the deed passes and becomes the operative document

36
Q

Land Sale Contracts: SOF

A

. SOF applies to interests in land
. Signatures: you do not need both signatures just the one being sued, the defendant
. Must include: 1) identity of the parties, 2) description of the property, and 3) the sale price or means determining sale price e.g. fair mkt value of appraisal
. Inaccurate or Overstatement of Land: remedy of specific performance with pro rata reduction in price
. Exception: Doctrine of Part Performance: equitable doctrine that allows specific performance of an oral contract when one dies if:
1) The oral contract is certain and clear
2) The acts of partial performance clearly prove the existence of a contract. 2 of the following: possession, paid purchase price, or substantial improvements
*If applying on test, state the general rule of SOF, this is exception then rule and analysis

37
Q

Land Sale Contracts: Doctrine of Equitable Conversion

A

. During the escrow period before closing, the contract conveys equitable title to the buyer as the owner of the property
. Risk of Loss: if the land is destroyed through no fault of either party, the buyer bears the risk of loss, but the seller must credit any fire or casual insurance proceeds they receive against the purchase price
. WISCONSIN: adopted the Uniform Vendor and Purchaser Risk Act which places the risk on the seller unless the buyer has legal title or possession at the time of loss

38
Q

Implied Promises in Land Sale: Marketable Title

A

*ON EXAM
. Seller will provide a marketable title at closing that is free from doubt and threat of litigation. The title must be marketable at time of closing so seller can clear up any defects during escrow, in installment contract, need marketable title at time of last payment. Types of defects:
1) Adverse Possession: not goof record title, and is unmarketable if any portion is subject to adverse possession, and there is no title acquired by adverse possession
2) Encumbrances: mortgages, liens, restrictive covenants, easements, options to purchase and significant encroachments (inches ok, foot not ok) make title unmarketable unless waived by buyer. Seller has right to satisfy a mortgage or lien at closing with proceeds of the sale
3) Zoning regulations: zoning restrictions are fine but violations of a zoning ordinance is unmarketable
4) Future Interests of Unascertained Parties: impossible to convey title if future interest holder is unborn or unascertained

39
Q

Implied Promises in Land Sale: False Statements of Material Fact

A

. Cannot make any false statements of material fact
. Failure to disclose: liable for failure to disclose if
1) The seller must know or had reason to know of the defect
2) Seller realizes the buyer is unlikely to discover the defect, and
3) The defect is serious enough that the buyer would probably reconsider the purchase
. Disclaimers of Liability: general disclaimers are not ok but specific are upheld, e.g. seller is not liable with any defects in the roof

40
Q

Land Sale Contracts: Implied Warranty of Habitability

A

. There is no implied warranty of fitness or habitability
. Caveat emptor: buyer beware- that is what the escrow period is for, inspection
. Exception: most courts recognize a warranty of fitness or quality if the sale is of a new home by the builder

41
Q

Land Sale: Closing

A

. If the buyer permits the closing to occur, the contract merges with the deed and the rights and liabilities disappear, except in the case of fraud
. The controlling document is now the deed
. Deed must: LEAD: Lawfully Executed And Delivered, which requires:
. Writing signed by grantor
. Unambiguous description of the land
. Identification of the parties by name or description
. Words of intent to transfer
. Writing: if deed is delivered with the name of the grantee left blank, the court presumes the person taking it has authority to fill in name, if the person fills in a name, it is valid (must have explicit authority to fill in description)
. Description: need not be perfect, just provide a good lead otherwise title is not transferred: all my land- ok some of my land -not ok

42
Q

Land Sale: Closing Delivery Requirement

A
  • ON EXAM: deed is not effective to transfer unless it has been delivered, delivery is based on intent and is a legal standard testing solely intent. Can be satisfied by:
    1) Physical transfer: by mail, agent or messenger
    2) Intent to transfer: if you say we give you blackacre, acceptance is presumed, but a rejection- no I couldn’t possibly take it-defeats intent.
    . Delivery with Oral Conditions: oral conditions drop out because they cannot be proven and deed is distributed
    . Transfer to Escrow Agent: grantor may deliver executed deed to 3rd party with instructions to be delivered upon conditions- pass law school, the title passes to the grantee when the conditions are met. IF written instructions given to agent, grantor is bound, if oral, they can change or revoke while the deed is still with the agent unless a contract of sale
43
Q

Land Sale: Covenants of Title: 4 types

A

1) General Warranty Deed: Best deed, makes the following promises:
Present Covenants
. Covenant of Seisin: grantor owns estate
. Right to convey: they have the power to transfer
. Covenant against encumbrances: no servitudes or liens
Future Covenants
. Covenant for quiet enjoyment: promises no lawful claims by 3rd parties
. Covenant of Warranty: promises to defend against any claims by third parties
. Covenant for future assurances: housekeeping- promise to make perfect title- if signed in blue instead of black
2) Special Warranty Deed: grantor only makes promises on behalf of themselves, not their processors in interest
3) Quit Claim Deed: worst deed, no promises, event that there is a title to convey
4) Statutory Special Warranty Deed: many states have two limited assurances against acts of the grantor: 1) grantor has not conveyed the state estate or any interest to another and 2) the estate is free from encumbrances

44
Q

BFP

A

to be a bona fide purchaser, grantee must: 1) be a purchaser (not will or gift) 2) pay valuable consideration and 3) take without actual notice of the prior conveyance

45
Q

Recording System: Types of Jurisdictions

A

. Race Jurisdiction: rare- whomever properly records first
. Notice Jurisdiction: ½ of states: Last BFP takes
. Race-notice Jurisdiction: If BFP who properly records first
WISCONSIN: BFP takes title free and clear from any adverse claims (nonidentity of persons, lack of authority of agents, defects in judicial proceedings) once the conveyance has appeared of record for 5 years

46
Q

Recording System: Notice

A

. Actual: prior to closing B learns of A
. Inquiry: Constructive: duty to inspect- regardless of whether the person examined or not, whatever an examination would have revealed that someone is on the premises is inquiry notice
. Record: Constructive: chain of title was properly recorded, then B is on Record notice, if not filed- then not on notice

47
Q

Recording System: Chain of Title Issues

A

1) Shelter Rule: anyone who takes from the BFP will prevail against any interest the BFP would have prevailed against- takes shelter or steps into the shoes of the BFP- policy to protect BFP by making it easier to transfer successfully and not be weighted down by O’s double dealing
2) Wild Deed: recorded deed that is not connected to the chain of title- does not impart constructive notice bc cannot feasibly find it. If a deed has a grantor unconnected to the chain of title, the deed is wild and incapable of giving proper notice- missing link.
Who wins: C- C is the last BFP to take
Notice state: C last BFP
Race-Notice state: Last BFP to record- recording a wild deed is to not record at all (Should have insisted on link to record)
3) Estoppel by Deed: one wo conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer

48
Q

Mortgages: Purchase Money

A

. Purchase Money: extension of value by a lender who takes as collateral a security interest in the land borrowed for
. Nonpurchase Money Mortgage: land is paid off but put up as a security interest in the land to finance something else not the land encumbered

49
Q

Mortgage Creation

A

. Union of:
1) Writing: LEGAL MORTGAGE, deed of trust, security interest in land, sale leaseback- all names for the legal mortgage that must be written
2) Voluntary transfer of a lien in the debtor’s land to secure the debt
. Transfer By Mortgagee: may transfer interest by either 1) endorsing the note and delivering it to the transferee, or 2) executing a separate document of assignment
. Transfer by Mortgagor: buyer either assumes the mortgage (agrees to be personally liable on the note) or takes the property subject to mortgage- presumed (not agreeing to personal liability only O is personally liable, mortgagee must bring foreclosure bc they cannot maintain a suit against the grantee)

50
Q

Mortgage Recording

A

. All recording statutes apply to mortgages like deeds- if properly recorded the subsequent taker assumes the mortgage, regardless of race- notice or notice- bank wins if they properly recorded first
. If not recorded immediately- apply race notice: whoever recorded first, Notice: if second buyer was BFP and bought before recorded, they win

51
Q

Mortgage Foreclosure

A

. Proper judicial action- blackacre is sold and
. Deficiency Action: If less than owed, can go against the debtor to try to get judgment
. Surplus: junior liens are paid off in order of their priority, remaining goes to debtor
. Each claimant is entitled to satisfaction IN FULL before a junior lienholder may take
. WISCONSIN: courts may deny deficiency judgment if not satisfied that the property sold for fair value

52
Q

Mortgage: Effect of Foreclosure on Various Interests

A

. Junior Interests: terminated – paid in descending order from sale if funds are left over after higher ranked parties, can get deficiency judgment if not satisfied, but can no longer look to land for satisfaction
. Necessary Parties: all junior lienholder and debtor- if the debtor is not joined their mortgage will remain on the land
. Senior Interests: if junior creditor has foreclosed, it will not affect the senior mortgage- buyer takes subject to them so the foreclosure sale buyer wants to pay off lien because they can foreclose again if the OG owner does not pay- e.g. Fair market value= 50, Mortgage=30, buyer should bid 20 and keep 30 on hand if the OG owner stops paying on the deficiency action, otherwise the senior interest can foreclose on land.

53
Q

Mortgages: Priorities of Foreclosures

A

. Recorded priority- first in time, first in right
. Exception: purchase money mortgagee: if recorded properly has first priority in parcel it financed *TESTED

54
Q

Mortgage Redemption

A

. Redemption in Equity
. Debtor can redeem land prior to foreclosure sale by paying
. Once valid foreclosure has taken place, the right to redemption is cut off
. Acceleration Clause: permits mortgagee to declare full balance due in the event of default- generally accepted and may contain other obligations like taxes. To Redeem must pay entire balance, costs, and interest
. To redeem: Pay off missed payments, accrued interest and costs
. Debtor CANNOT waive right to redeem
. WISCONSIN:
. Delays foreclosure sale for 3-8 months to afford the opportunity to redeem
. Statutory Redemption: allows the mortgagor to redeem for one year after foreclosure sale

55
Q

Zoning:

A

. State and local government police powers through enabling legislation to reasonably control land use
. Zoning: can impose hardship
. Variance: permission to depart from zoning restriction, must show
1) Undue hardship
2) No diminution to neighboring values
. Zoning ordinances are invalid if they have no reasonable relation to public welfare, too restrictive, discriminatory to a particular parcel beyond grant of authority, violate DP or are racially discriminatory
. WISCONSIN: local zoning boards must consider whether compliance would unreasonably prevent the owner from using the property for a permitted purpose or be unnecessarily burdensome

56
Q

Zoning: Nonconforming Use

A

. Elimination of once lawful use: cannot be eliminated all at once unless just compensation is paid
. Changes to nonconforming use: nonconforming use cannot be extended or intensified in ways that make a substantial change
. WISCONSIN: protects nonconforming uses and prohibits their gradual elimination and extension

57
Q

Cumulative Zoning

A

. Cumulative: land is ranked and graded for highest best use- single family, two family, apartments, commercial, industrial- may be used for that purpose or any higher use
. Noncumulative: land may only be used for the purpose for which it is zoned
Special Permit: must be obtained even though in the right zone e.g. funeral homes, hospitals

58
Q

Condos

A

. Each owner owns the interior of unit plus undivided interest in exterior and common elements – fee simple- unit, Tenant in common- common elements of area

59
Q

HOA

A

. Membership: owners of each unit is member, member’s vote on board that manage property
. Usually a legal entity
. Rules: bylaws place requirements or restrictions of properties, rules in declaration of covenants, conditions, and restrictions (CC&Rs)
. Fees: must pay regular dues used to maintain common areas
. Special Assessment: taken if major repairs are needed

60
Q

Cooperatives

A

. Title to land and building is held by corporation that leases individual apartments to shareholders- tenants that do not have alienation of individual interests

61
Q

Natural Rights: Lateral and Subjacent

A

. Lateral
. Right to have land in natural state
. Support of land in Natural State: unadorned- strictly liable if excavation causes adjacent land to subside- slip or cave in
. Support of Land with Buildings: if land caves in, only liable if negligent
. Subjacent: underground occupant of land-mining co-must support surface, liability requires negligence

62
Q

Natural Rights: Water Rights

A

. WISCONSIN: Public Trust Doctrine: state holds all navigable waters in trust for public as owners, and state has an affirmative duty to protect navigable waters
. Watercourses- Streams, Rivers, and Lakes
. Riparian Doctrine: water belongs to those who own land bordering the water- can use water only in connection with parcel- share the reasonable use
REASONABLE USE- most states-riparian share the right of reasonable use of water and responsible for unreasonable- alteration of flow, purpose of use, pollution, extent of use, designation of water taken and other conduct
. Prior Appropriation Doctrine: water belongs to state but right to divert and use can be acquired through actual use- Priority of beneficial use: can get right by being first in time, first in right
. Groundwater
. Surface owner can make reasonable use of ground water
. Surface Water
. Water passing across your land without a channel- rain, springs, melting snow- apply common enemy rule: may change make any adjustments to drainage, levy, pitch to fight flow of water without reasonable harming other’s use and enjoyment of land

63
Q

Natural Rights: Right to Exclude

A

. Possessor of property has right to exclude others, remedies include actions for
1) Trespass
2) Private nuisance- odors, noise
3) Continuing trespass, and
4) Ejectment or unlawful detainer- tenant

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