Real Property Flashcards
Present Possessory Interest in Land.
- Ideafeasible interest - It is not subject to early termination ( Fee simple absolute and life estate)
- Defeasible interest- allows a fee simple or life estate to be terminated if a stated event occurs ( Fee simple determinable, subject to condition subsequent and subject to executory interest)
Types of Tenancies
- Tenancy for years- it is for a fixed period e.g 10 days or 10 years. It is created expressly and ends automatically on its termination date.
- Periodic Tenancy - for a fixed period that continues for succeeding periods e.g month to month.
- Tenancy at will- no stated duration as long as the parties desire
- Tenancy at sufferance- Hold over doctrine where a tenant remains in possession after the tenancy has expired. - Landlord may evict tenant or create a periodic tenancy by accepting rent
Joint Tenancy
Right of Survivorship- deceased shares go automatically to surviving JT
Alienable inter vivos- they can sell or give during the cause of a lifetime
Devisable- Not capable of passing by will.
Descendible- pass to heirs, it’s not descendible
Creation of Joint Tenancy
T-at the same time
T-by same title
I-Identical equal interest
P-right to possess whole
Ways to sever
Sale:JT sells / transfers during lifetime without the others knowledge or concern
The new buyer becomes a tenant in common
What is an easement?
An easement is a grant of a nonpossessory interest in property that entitles its holder to have the enjoyment of another person’s land.
If an easement is said to be surcharged, this means:
The easement’s legal scope was exceeded The holder of an easement has the right to use another’s land (i.e., the servient tenement), but has no right to possess the land. The scope of an easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern.
What is a remainder?
It is a future interest created in a third-party
It is possession on a natural expiration of the preceding estate (Life estate or term of years)
Example
To A for life and then to B
Contingent remainder
Taker as yet unascertainable or subject ti condition precedent
Vested Remainder
Adverse Possession
(i) An actual entry giving exclusive possession that is (ii) Open and notorious, (iii) Adverse (hostile), and (iv) Continuous throughout the statutory period.
For purposes of determining title by adverse possession, tacking is not available when one adverse claimant ousts the other or the first claimant abandons and the next claimant goes into possession.
Note**
Periods of adverse possession between two successive claimants may be tacked together to make up the full statutory period if there is privity of possession between the claimants. Privity is satisfied if the first adverse claimant purports to transfer the land to the next; i.e., the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.
If an adverse possessor uses land in violation of a recorded real covenant for the limitations period, she takes title free of the real covenant.
An adverse possessor will gain title only to the land she actually occupies.
Statutory redemption
Statutory redemption is the right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure sale price.
Equitable redemption
In contrast, equitable redemption is the right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure sale.
Who is liable when a grantee assumes a mortgage?
When a grantee assumes the mortgage, the grantee expressly promises the grantor-mortgagor that he will pay the mortgage obligation as it becomes due. The mortgagee then becomes a third-party beneficiary of the grantee’s promise to pay and can sue the grantee directly if the grantee fails to pay. After the assumption, the grantor-mortgagor becomes a surety who is secondarily liable to the mortgagee on the note if the grantee fails to pay.
Tenants in Common
This is created when there are two or more tenants and no right of survivorship, right to possess the whole.
interest is divesable, descindable and alienable.
Tenancy by the entirety
Creation- parties must be married at the time of creation.
Termination, by death, divorce, mutual agreement, or a mutual creditor of both executing on its interest.
Implied warranty of habitability,
The landlord must keep the property in a habitable condition.
This condition is not waivable and it only applies to residential leases.
It provides that the premises must be fit for basic human habitation.
Lease
A lease is a contract that governs the landlord-tenant relationship.
Types of Waste
Voluntary or affirmative waste- It occurs when the tenant’s actions cause damage to the property.
Permissive waste- This is when the tenant fails to take reasonable steps to protect the premises from damage from the elements.
Ameliorative waste - This is when the tenant does something to increase the value of the property
An assignment under a lease
The assignee and landlord are in the privity of the estate.
This is when a tenant assigns his entire interest, he is still liable under the lease because he is in privity of contract. The assignee is liable under the privity of estate.
Sublease
This is when a tenant rents less than his interest in an estate. The subleasor is not liable under the contract or privity of estate but the subleasor is still liable under privity of estate and contract.
Note, the sublessor can sue the sublessee
Latent defects Rule
A landlord must warn a tenant of hidden defects which the tenant would not have discovered by reasonable inspection.
Types of Easements
Affirmative- This is the right to go into servient land, ie the land that is imposed upon by the easement.
Negative- This entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. It can only be created expressly by writing and signed by the grantor.
Easement in Gross
An easement in gross provides a specific right to an individual or other entity and belongs to that individual rather than to their property.
In general, easements in gross are irrevocable throughout the life of the person who holds the easement in gross. It is not transferable unless it is for commercial purposes.
Easement Appurtenant
An easement appurtenant is a specific type of easement where two properties are linked together as servient tenement and dominant tenement estates.
It automatically passes with the transfer of the dominant tenement.
Quasi-easement (Implied from preexisting use)
consider the original intention of usage on a piece of property. Property that is being used for reasonable purposes can be considered legal and equitable and granted an implied easement by a court. Property being used in adverse ways against the will of the property owner is not legal.
Easement by prescription
Continuous and uninterrupted use
Open and notorious
Actual use which does not need to be exclusive
Hostile use means without the consent of the servient owner
Permission defeats an easement by prescription.
Restrictive covenants.
What is the Covenant?
The covenant is a written promise to do or not do something related to land. It is a contractual limitation or promise regarding land. Real covenants are normally found with deeds and when the requirements are met, they run with the land.
Negative covenant
These are restrictive covenants. It is a covenant to refrain from doing something related to land,
Affirmative covenant.
It is a promise to do something related to land.
Running with the land
when it is binding successors
Requirements for burden to run.
WITHN
Writing- it must be in writing between A and B
Intent- it would have intended that the covenant would run with the land
Touch and concern- It must affect the parties’ legal relations as landowners - ie if they restrict the burdened owner in her use of that parcel.
Horizontal and Vertical privity - It requires they must be successors of the estate and vertically suggests a non-hostile nexus between the original promisee and the successor in interest.
Land sale contracts
It is an enforceable contract for the sale of land, it must have an offer, acceptance, and consideration with no defenses to performance.
Note
In Georgia Land sale contracts are known as bonds for title.
Statute of Frauds applicable for Land Sale contracts
A real estate contract involves an interest in land, it has to satisfy the statute of fraud.
1. It has to be signed by the party against whom enforcement is sought- ie person currently being sued.
2. It must identify the parties.
3. Describe the property and
4. Include the price or means of determining the price (such as fair market value as determined by an appraisal)
These terms must be definite enough so the courts can enforce the contract.
Exception to Statute of Frauds- Doctrine of Part Performance
When there is no writing the courts will look and will allow the buyer to enforce an oral contract by specific performance.
The oral contract is certain and clear and
acts of partial performance prove the existence if a contract.
Partial performance
It can be satisfied if the buyer can prove three actions
1. They have taken possession of the property
Suppose the buyer has moved into the property and there must be no other explanation of their occupation of the land such as tenancy.
2. Buyer has paid the purchase price or a significant portion of the purchase price.
The buyer has paid the purchase price which cannot be disputed or explained as money meant for other duties.
3. The buyer has made substantial improvements to the premises.
The buyer has made improvements to the house.
All three must be able to be proven for it to be considered partial performance under the oral contract.
Georgia Distinction
To enforce an oral land contract, there must be
1. Full payment accepted by the buyer
2. Possession plus partial payment or
3. Possession plus valuable improvements
Doctrine of equitable conversion
Under this doctrine, once the contract is signed, equity regards the buyer as the owner of the real property.
The contract conveys equitable title to the buyer.
Risk of loss
Even though the buyer is the equitable owner if destruction occurs, the seller must submit any proceeds to the buyer.
Passage of title at Death
A deceased buyer’s property is deemed as real property in their estate.
Marketable title
The seller will provide a marketable title at the time of closing.
Defects in the Record chain of title
- Adverse possession makes the title unmarketable
- Encumbrances - liens, restrictive covenants unless the buyer has waived them.
Small encroachments that do not bother the owner less than a foot will not make the title unmarketable. - Zoning violations- existing violations make the title unmarketable
- Future interests held by unborn or unascertained parties.
What is a quitclaim deed?
This is when the grantor is making no promises of the title being conveyed. It conveys only the interest the grantor has at the time.
General Warranty Deed
It contains 6 covenants and it warrants against all defects in title including those attributed to the grantor’s predecessors.
Present covenants
Covenant of seisin
Covent of the right to convey
covenant against encumbrances
Future Covenants
1. The covenant of quiet enjoyment
The grantor promises the grantee will not be disturbed in possession by a third party who claims the title.
2. The covenant of warranty
The grantor promises to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by a third party and to compensate the grantee for any loss sustained by the claim to superior title.
3. Covenant of further assurances
This is a promise to make perfect grantee’s title if any defects occur or the title turns out to be imperfect
Special Warranty Deed
This is similar to the general warranty deed but the grantor makes promises only as it relates to himself
Void deeds
If a deed is
Forged
No delivery
Deed or nonexistent grantee
Obtained by fraud in factum-grantor did not know what they were signing.
Voidable deeds
Executed by minor
Executed by one without mental capacity
Deed obtained by fraud in the inducement
Deed obtained by duress or undue influence
The deed was obtained by mistake
Deed through breach of fiduciary duty
Fraudulent Conveyance
Conveyance with intent to hinder, delay, or defraud the grantor’s creditor.
A conveyance made without receiving equivalent value by an insolvent debtor- that one becomes insolvent because of the transfer.
Recording statute under the Common Law
It is first in time, first in right. Ie whoever receives the interest first is entitled to the property.
Race Jurisdiction
Whoever records first wins
A conveyance if an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded.
Notice Jurisdiction
Whoever records without prior notice wins ie last BFP takes
A conveyance of an interest in land, other than a lease for less than a year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.
Race Notice
BFP who takes and records before another record.
Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.
BFP
Paid for value
bought the property
takes without notice
Types of Notice
Actual notice- has literal knowledge
Inquiry notice- visiting the property to inspect will provide an inquiry notice
Record notice- If the deed is recorded- must be within the chain of title and not a wild deed.
Shelter Rule
Anyone who takes from a BFP is protected under the shelter rule. Ie the transferee takes shelter under the under the BFP, ie steps into the BFP’s shoe.
What is a mortgage and identify the parties
A mortgage is a security interest when a bank lends money. It indicates the existence of debt.
The borrower is the mortgagor and the lender is the mortgagee.
Purchase money mortgage
It is the extension of value by a lender who takes as collateral a security interest in the very real estate that the loan enables the debtor to acquire.
Assumption of Mortgage or subject to
When a mortgagor transfers the property without paying off the mortgage, the purchaser either assumes the mortgage or takes the property subject to the existing mortgage. That is, they are agreeing to take liability on the mortgage note.
If they are taking subject to, they are not agreeing on being personally liable for the mortgage.
Cumulative zoning ordinance
It creates a hierarchy of uses of land where a single-family home has the highest use, followed by a two-family home, and then an apartment complex or building that has the lowest use.
Noncumulative zoning ordinance
Land may be used only for which it is zoned.
Special use permit
Fee simple determinable
A fee simple determinable is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. The interest that is left in a grantor who conveys a fee simple determinable is a possibility of reverter, which in almost all jurisdictions is transferable, devisable, and descendible.
