Real Property Flashcards
Deed Types & Merger
General Warranty: the seller warrants that no title defects have occurred during their ownership and that there are no defects in the title.
Special Warranty deed the seller only warrants that no title defects have occurred during their ownership of the property.
General and Special warranty deeds contain several present and future covenants:
Present (do not run with the land, break at conveyance): seisin - a promise that the seller is the owner, right to convey: seller hast the right to convey the property, and a covenant against encumbrances: such as mortgages, liens, easements, taxes, leases, or restrictions on use
Future covenants (run with the land, broken after conveyance but onlu upon eviction or otherwise damaged): quiet enjoyment: the grantee will not be disturbed by a superior claim, warranty: grantor guarantees that he will assist in defending title against lawful claims and will compensate the grantee for losses to a superior title, and further assurances: grantor will take steps to perfect defects in the title
Quitclaim provides no warranties.
Under modern law, merger does not apply to matters that are collateral to or not mentioned in the deed. While a covenant of marketable title would merge upon conveyance of the deed, the buyer could file suit for breach of another warranty contained in the deed .
Under common law, all covenants merge upon closing.
Recording Statutes and Notice
Race Statute establishes that the person who records first prevails.
Notice Statute establishes that the person who, was a bona fide purchaser and took subsequent to another person without actual, constructive, or inquiry notice will prevail.
Race-Notice establishes that the person that the person who, was a bona fide purchaser and took subsequent to another person without actual, constructive, or inquiry notice and records first will prevail.
Leasehold Interest
There are four types of leasehold interest, a tenancy of years, a periodic tenancy, an at-will tenancy, and a tenancy at sufferance.
A tenancy of years requires a definite starting and ending date which affords no notice required to terminate.
A periodic tenancy has a set beginning date with no set termination date however notice is required, can be written or oral, and can also be by implication such as accepting rent from a holdover tenant.
An at-will lease has no fixed duration and terminates at the desire of the landlord or tenant.
A tenancy at sufferance occurs when a tenant remains in possession beyond the termination of a lease. Landlord is eligible to receive the reasonable rental value for the duration.
Assignments
An assignment occurs when a tenant transfers all of their rights and interests in a lease to a third party such that the third party becomes into privity of estate with the landlord. The landlord may sue the assignee for owed rent.
A sublease occurs when a tenant transfers less than all of their rights to a third party such that the third party does not come into privity of estate with the landlord.
Absent a novation, the tenant remains liable for rents after a sublease or assignment.
Abandonment
Easement: occurs where there is an intent to abandon and an affirmative act is shown in furtherance of that intent.
Tenancy: A lease is abandoned when a tenant vacates leased premises prior to the expiration of the team, has no intent to return, and defaults in payment of the rent. A landlord can either accept the abandonment and discharge the rent, rent to another person, or sue for unpaid rent. They have no duty to mitigate under common law.
Duty to Mitigate
Termination of an Easement
An easement may be terminated upon the necessity no longer being needed, the time period given for the easement has come to an end, by prescription, eminent domain of the servient estate, upon a merger of the dominant and servient estate, abandonment. These rules of termination equally apply to profits.
Implied Warranty Fitness/Suitability
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
Adverse Possession
Adverse possession requires the open and notorious use of property, that is actual, continuous, hostile, and exclusive.
Shelter Rule
The shelter rule provides protection for a subsequent taker who does not satisfy the applicable recording statute, as well as for a successor in interest to a person protected by the recording statute.
