real Property Flashcards
Common interest development new rule can be made if?
Assuming the mortgage vs buying subject to
Assuming: buyer becomes primarily liable and OG guy is secondarily liable (creditor becomes an intended 3rd party beneficiary)
Subject to: OG guy is primarily liable only not the new Buyer
Fixtures
Chattel = personal property that is movable and not permanently attached to the property
Fixture = a chattel that has become SO attach to the property it is now an irremovable part of the property
MARIA
1) Method of attachment = firmly imbedded or permanently attached
2) adaptability = peculiarly adapted or fitted
3) removal = would destroy the chattel or damage the premises
4) intention = objective intent of person that attached it at the time
5) agreement = purchase, lease, mortgage
Landlord Tenant w/ Agreement
* Agreement of the landlord and tenant is CONTROLLING and will allow tenant to take anything she added if the agreement says so
* If No agreement then tenant can remove chattel unless it will substantially damage the property or would destroy the chattel
* Must remove before end of lease and duty to repair for any damage caused
Trade/Business
It is presumed that chattels used in trade or business are intended NOT to be fixed and thus, they may be removed before the end of the lease, unless there is a contrary agreement
Trespasser = automatically loses anything they attach (good faither trespasser recover value add)
Recording Act
“Subsequent purchaser for value or good faith, without notice unless is recorded”
Recording Act = Recording acts change the common law rule of first in time, first in right, can protect the interests of subsequent purchasers in certain circumstances, and allow a subsequent purchaser to keep the property subject to the recording statute
Notice Statute = This means the Subsequent BFP that pays value and takes the property WITHOUT notice at the time they PAID will WIN!! NO recording needed
Race-Notice = without notice + FIRST recorded
Equitable Servitude
Common Development Scheme
**An injunction against breaching a covenant may be obtained by enforcing the covenant as an equitable servitude. Differs from a restrictive covenant in that the relief is an injunction. **
1) a writing that complies with SOF
2) intent of the original parties that the covenant would exist to bind future holders
3) touches and concerns the land (make the land more useful or valuable to the benefitted party)
Burden = 4) Notice: actual, inquiry, record
**
Common Development Scheme** = even if the scheme is not in the deed, court will imply a covenant IF:
1) at the time sales began within a particular subdivision developers intended all parcels within it be developed according to the terms of the restrictive covenant. Evidence can be: recorded plat, general pattern of prior restrictions, early buyers orally represent
2) Owner of the subject lot must have had notice of the restition in the deeed of the other buyers in the subdivision
Actual direct knowlege
Inquiry = neighborhood appears to conform to the restrictions
Constructive = prior deeds within the chain of title
Defenses = equity court NOT bound to enforce if in good conscience it can NOT
* Unclean Hands = person asserting violated a similar restriction on his own land
* Acquiescence = benefitted party did not object to a violation by 1 burdened party, may be deemed abandoned as to all other burdened parties, UNLESS violation is SO distant from the complaintant that it did not really affect his property
* Estoppel
* Latches = failure to sue within a reasonable time
* Changed Neighborhood Conditions = SO significant since servitude created it will be inequitable to enforce, and instead just pay damages
- Inconsistent zoning around the property is NOT dispositive, but good evidence
- Entering wedge = if parcel is apart of a subdivison at the outer edge, then lifting the restiction will NOT be allowed if it would create a domino effect within the ENTIRE division
Real Covenants
**A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something. The promises “run with the land” so future purchasers or holders of the land may be burdenes by it or may be able to enforce it. It differs from equitable servitude, in that monetary damages is its only remedy. **
**Burden to run with the land: **
1) a writing that complies with SOF
2) intent of the original parties that the covenant would exist to bind future holders
3) touches and concerns the land (make the land more useful or valuable to the benefitted party)
4) horizontal privity = original promising parties share an interest in the land apart from the covenant
5) vertical privity = successor now hold the SAME whole interest as the OG party did when promise first made
5) Notice: actual, inquiry, record
Benefit to run with the land = drop HaN solo - NO horizontal privity needed and NO notice is needed
Termination = DREAM CC
Covenants that run with the land = lease duration, termination clauses, pay rent, pay tax, repairs, supply heat, maintenance obligations, any covenant in the lease that touches and concerns the land
Horizontal = developer/purchaser, landlord/tenant, easement holder, grantor/grantee, mortgagor/mortgagee
Vertical = grantor/grantee, landlord/tenant, buyer/seller, assignor/assignee
Equitable Conversion
Upon the signing of a contract for the sale of land, the risk of loss shifts to the buyer where the buyer holds equitable title and the seller only holds legal title until he receives the money.
* Any destruction of the property that is not due to the fault of either party will not decrease the contract price and buyer will be required to pay the full amount still, UNLESS there is an agreement to the contrary.
* If the buyer or seller dies, the contract WILL STILL REMAIN effective
Easement
Appurtenant
In Gross
Appurtenant = one benefiting the holder of the easement, where it benfits the dominant tenement in their use and enjoyment of their land and burdens the servient tenement.
–> It passes automatically with a transfer of the dominant tenement
–> the burden is perpetual so its binding on all subsequent transferees as long as the transferees have notice of it.
***If NOT properly recorded it might NOT be binding on all future successors
Merger
Implied in every land sale contract is an implied warranty to convey marketable title. At the time of closing, the contract will merge with the deed, and the buyer can then ONLY sue on the deed and NOT the contract itself.
Before Closing = implied warranty for marketable title
After Closing = Breach of a covenant that was given in the warranty deed. like quiet enjoyment or encumbrances
- What are the 2 types of Redemption during foreclosure? When does EACH apply?
- Mortgagee’s restrictions on Pre-Payments
**Equitable Right of Redemption **
* Allows an owner BEFORE the foreclosure sale happens to pay off the property with interest and get it back
* THIS right can NOT be waived. It is IMPLIED in all mortgage deals
Statutory Right of Redemption
* Only available in half the states AND Allows an owner and sometimes a junior lien holder AFTER the foreclosure to pay the price that the property was sold for at the foreclosure sale to get the property back.
Pre-Payments = a mortgagee CAN restrict the right to a pre payment FULLY or partially. If the note says NOTHING about pre-payment then it is NOT allowed. There can be a FEE for pre-payment.
Profit a Prendre
Profit = a nonpossessory interest in land that entitles the holder of the profit to enter on the servient tenament and take something off the land (mineral, timer, oil, hunt animals)
Appurtenant = if the profit exists to serve the dominant estate then it can ONLY be transferred along with the dominant estate
Example: “for the benefit of the resort”
In gross = does NOT exist to serve the dominant estate THEN it can be assigned or transferred seperate from the estate
* Exclusive Right = transfer to however many ppl he wants
* Non-Exclusive = only 1 person or joint group not taking more than OG share
Creation = PINED
SOLE RIGHT language in contract = only profit can have the resources, not even the owner
Implied affirmative easement to go onto the other persons land to obtain the materials
Termination = Misuse or END CRAMPS
Adverse Possession of Title vs. Prescription Easement
**Adverse Possession allows someone to aquire title of someone elses land and bars the owner from legal ejectment. **
1) open and notorious (sufficient to put the owner or community on notice of the possession)
2) hostile (no true owner permission)
3) continuous (used in a way that the actual owner would use it)
4) Actual = only title to the land actually occupied
5) Exclusive = not sharing w/ owner or public
**Prescription Easement **= is a NON-exclusive right to use the land which does NOT preclude the owner of the land from also still using it (utility line or a road)
Tacking = adding seperate periods togeted to make the full statutory period if privity between EACH successive holder bydescent, devise, deed purporting to convey title
Constructive AP = allows title to ENTIRE land, not just portion actually used if: reasonable proportion was open and notoriously used + land pieces are adjacent + owned by same owner + color of title = a doc on its face gives title, but for unapparent reasons is invalid (invalid deed or will)
Property Line Dispute = agreement of the adjoining landowners of a fixed line, but its NOT the true line. Courts will fix ownership to the agreed line IF:
1) original uncertaininty about true line
2) agreed line established by agreement
3) lengthy acquiescene in the agreed line by adjoining owners/successors
- State of mind does NOT matter
- If first you get consent, then MUST community Hostility
- NOT VALID = owner/tenant staying past lease/sale
- No gov land can be AP
- Leasing to a tenant during the AP period is VALID
- Date will NOT start if when it FIRST began the owner was = insane, in prison, future interest holder takes over, or a minor. It will START after recovery, or after 20 years, whichever shorter
- Equitable servitudes will STILL be VALID if AP did NOT break them during their SOL period
- AP title is NOT marketible, unless action to Quiet Title w/ proof courts can see AP took place
Types of Security Interests
* Mortgage = when a mortgagee gives a loan to a person in consideration (exchange) for a security interest in that persons property or the property of another then a Mortgage is created. Mortgagee essentially holds the title, until all the terms of the agreement have been met, at which point he will then transfer the title back, failure to will allow Mortgagee to seek a court ordered foreclosure.
Equitable Mortgage = is an absolute deed to the lender with a separate promise of reconveyance of the land to the borrower when the debt is paid.
Deed of Trust = is a deed given to a third-party trustee by a debtor who holds the deed until the loan is paid in full. If the loan is not paid in full, the trustee can either obtain a court order for a foreclosure sale on the property or sell the property for herself at public option.
**Land Sale Contract **= In a land sale contract, a debtor makes arrangements and signs a contract with a seller/lender, but the lender retains title to the property until the loan is paid in full.
The Recording Statutes protect Mortgagees, but NOT lien holders.
Tenants in Common
Joint Right of Survivorship
Tenancy by the entirety
Tenants in Common = each share an undivided interest in ALL of the land, but the percentage of their interest can be different and there is NO right of survivorship. ADD
* no need to pay rent, unless wrongfull ouster another
* rent from a 3rd party MUST be shared with out of possession co-tenant
* exploiting the land that reduce land value, MUST share profit with out of possession co-tenant
* Co-tenant in SOLE possession = if they pay the taxes/mortgages only reimbursed for amount that exceeds property rental value
* Compel Contribution = pay more then fair share for necessary repairs + notifies others before doing OR out of possession tenant pays taxes/ mortgages
* in a foreclosure sale if 1 co-tenant pays the full amoun the has a right to contribution BUT he does not get the whole place unless there is failure to pay that contribution
* Improvements = Upon partition CAN recover increase in value OR deduct from any profit owed to others. Liable for any decrease in property.
* Waste = co-tenants can sue each other
* Encumberance = only on your share
Joint Right of Survivorship = Created whenre there is CLEAR express intent “right of survivorship” AND created within the 4 unities of: time, title, interest, and possession. Otherwise, presumed to be TIC.
* Time = interest at the same time is created
* Title = interest created in the same instrument
* Interest = same equal shares
* Possession = all have EQUAL UNDIVIDED interest in the WHOLE
* Costs = all costs shared equally
* Termination and becomes TIC = unilateraly action by 1 JT
* Lien Theory (MAJ) = 1 JT puts a mortgage does NOT sever JT, unless actual foreclosure occurs
* Title Theory (min) = severs JT
**Tenancy by the entirety **= presumed in a conveyance to married couple as long as the 4 unities are present. Automatic IMPLIED right of survivorship. NEITHER spouse can UNILATERALLY convey their interest.
* JOINT creditors CAN reach the property, BUT Creditors of 1 spouse can NOT, UNLESS federal tax lien.
* Termination = death, mutual written agreement, official divorce, federal tax lien, joint creditor foreclosure
Types of Tenancy Periods
Tenancy for Years = lease for a fixed period of time (could be less than a year) that will AUTOMATICALLY terminate on the end date WITHOUT notice. SOF requires a writing if over 1 year.
Periodic Tenancy = AUTOMATICALLY continues in equal intervals (month to month) until written notice is delivered.
* Creation = express agreement, implied if rent is paid at set intervals and no end date on lease, invalid lease, holdover tenant who remains after lease and L accepts the rent
* Notice = in writing 1 FULL interval in advance
* Year to Year = annual rent, payable monthly annum
* A commercial lease for multiple years will turn into a periodic tenancy year to year if they continue to stay
* if the landlord gives the tenant a rent increase notice BEFORE the term expires, then that NEW rent amount will BIND the tenant for the renewal period
Tenancy at sufference = tenant wrongfully still posses the property past expiration of valid lease.
* Options = evict or impose reasonable new periodic tenancy
* Unreasonable = seasonal, sick, not T fault, few hours/clothes
At will = no fixed period and terminated by either party at any time
* modernly = notice required
* creation = express or implied by rent payment period or implied by tenant taking possession with permission and no specific start date
* termination = either party, death, tenant waste, tenant assignment, L transfer title, L leases to 3rd party
Rule Against Perpetuities applys when?
Exceptions when it doesnt apply?
**RAP applies if the rights will NOT vest within 21 years AFTER the death of a life in being that was alive at the time the interest was created. Modernly, most states use the wait and see rule **
RAP does NOT apply to rights that have vested already
Applies to = 3rd party executory interests, first right of refusal that is NOT in a contract (unless it says “lifetime”), options, contingent remainder, class gifts, powers of appointment
Does not apply to = reversion to grantor, right of re-entry, vested remainder, automatic reverter, first right of refusal within a signed purchase agreement when the person has a life estate (even if this right is later transferred to a third party), if the person has a tenancy for years then it must be executed before the end of the lease and can NOT be transffered to another third party.
How does a Real Covenant + Equitable Servitude Terminate?
DREAM CC
* Destruction
* Release
* Estoppel
* Abandonment
* Merger
* Condemnation
* Changed Conditions = conditions have changes so significantly the purpose of the covenant is impossible to accomplish
