Real Property Flashcards

Question

Creation of tenancy at will

Answer 1

Must be created by an express agreement that lease can be terminated at any time If no express provision for tenancy at will, periodic tenancy will be implied with regular payment of rent

Answer 2

Termination by either party Termination: - with notice and reasonable time to vacate OR - operation of law: 1) either party dies 2) T commits waste 3) T attempts to assign his tenancy 4) L transfers her interest in property 5) L executes a term lease to a third person Lease gives only L right terminate = same right implied for T Lease gives only T right to terminate = NO right implied for L

Answer 3

Created when a T wrongfully remains in possession past expiration of the lease (holds over) Wrongdoer has a leasehold estate to permit L to recover rent Terminates when L: 1) evicts OR 2) elects to hold T to new tenancy - no notice required

Answer 4

If T continues in possession after their right to possession has ended, L may: 1) evict T or 2) bind T to a new periodic tenancy Length of new tenancy = way rent was computed under lease that has ended - maximum tenancy created = year-to-year - promises in original lease apply to new tenancy Residential Ts = usually a new month-to-month tenancy - if notice of increased rent, staying = assent to increase

Answer 5

1) T remains in possession for only a few hours after termination or leaves a few items of personal property 2) delay is not T's fault L cannot bind T to a new tenancy if exception applies

Answer 6

1) duty to repair 2) duty to pay rent

Answer 7

If lease is silent on duties to repair, T only has obligation to: 1) maintain premises 2) make routine repairs - NOT repair for ordinary wear and tear 3) not commit waste - voluntary = damage by overt conduct - permissive = failing to take reasonable steps to prevent damage - ameliorative = unilateral change by T increasing value; T liable for cost of restoration

Answer 8

When expressly in lease, T must maintain the premises in good repair and condition CL = T responsible for any destruction to property (even natural forces) Modern: - Residential = L remains obligated to repair under non-waivable implied warranty of habitability - Nonresidential = covenant to repair is enforceable and includes repairs for ordinary wear and tear, unless excluded in covenant

Answer 9

1) T remains in possession = L can evict (still entitled to rent) or sue for rent due - no self help for L (includes changing locks, forcibly removing T or removing T's possessions) 2) T is out of possession = L's options are SIR: - Surrender = T shows by words or conduct that she wants to give up lease - Ignore abandonment = L does nothing and holds T liable for rent until natural end of lease (only in minority of states) - Re-let premises = hold T liable for any deficiency Majority = L must at least TRY to re-let to mitigate (good-faith effort)

Answer 10

Condemnation = taken by eminent domain Entire leasehold taken = T's liability for rent is extinguished and lessee entitled to compensation Temporary or partial taking = T is not discharged from rent duty but is entitled to compensation

Answer 11

L must put T in actual possession of premises at beginning of leasehold term If holdover T, L has breached and new T gets damages

Answer 12

T has right to quiet use and enjoyment of the premises without interference from L - applies both to residential and commercial leases

Answer 13

1) breach by wrongful eviction 2) breach by constructive eviction

Answer 14

exclusion from whole or part of premises without cause Actual eviction = exclusion from entire premises by L, paramount title holder or hold-over T - Terminates obligation to pay rent Partial eviction = exclusion from part of premises - when excluded by L, terminates obligation to pay rent - when done by a paramount title holder --> T is liable for reasonable rental value of portion T continues to possess

Answer 15

L's breach of duty renders premises unsuitable for occupancy Elements = SING - Substantial Interference = chronic or permanent problems due to L's actions or failures - Notice = T must notify L of the problem and L must fail to fix it - Get out = T must vacate within a reasonable time after L fails to remediate T who has been constructively evicted may terminate the lease and seek damages

Answer 16

L is generally not responsible for other T's wrongful acts except: 1) L has a duty to abate a nuisance on site 2) L must control common areas

Answer 17

Non-waivable warranty requiring Ls to keep residential premises fit for human habitation - bare living requirements must be met - standard = based on CL and housing codes - Breach triggered by no heat in winter, no working plumbing, no running water, etc.

Answer 18

T has 3 options: MR3 (MRRR) M = Move out and terminate the lease (not required!) R = Repair and deduct cost from future rent R = Reduce rent or withhold all rent until court determines fair rental value R = Remain in possession, pay full rent and affirmatively seek money damages

Answer 19

quiet enjoyment = T must vacate to successfully plead constructive eviction Habitability = T MAY (but doesn't have to) vacate - there are other remedial options

Answer 20

L cannot terminate T's lease or penalize T in retaliation for T's exercise of legal rights Majority = retaliation presumed if L acts within 90 to 180 days after T exercises rights

Answer 21

Protects Ts and potential Ts from discrimination based on race, color, religion, national origin, sex, disability, or familial status Exemptions: 1) owner-occupied buildings with 4 or less units 2) single-family homes if owner owns no more than 3 Reasonable accommodations = L must permit disabled Ts to make reasonable modifications to existing premises at T's own expense

Answer 22

Based on a person's race, color, religion, national origin, sex, disability, or familial status 1) refuse to negotiate, rent, sell or mortgage 2) provide different terms or conditions for sale, rent, or financial assistance 3) falsely represent that a dwelling is not available for inspection, sale or rental 4) make, print or publish any notice or ad that indicates preference (including exemptions)

Answer 23

Assignment = transfer of entire remaining term of lease Sublease = transfer of part of remaining term of lease Absent a prohibition in the lease, T may freely transfer their interest in whole (assignment) or part (sublease)

Answer 24

A covenant in the lease prohibiting assignment does not prohibit subletting and vice versa (strictly construed against L) If T transfers interest in violation of a covenant, transfer is NOT void BUT L usually can terminate lease or sue for damages If L consents to one transfer by T, L waives right to object to future transfers by that T

Answer 25

Transfer of entire remaining term of a lease Assignee (T2) and L in privity of estate = both L and T2 liable to each other for covenants that run with land Original (T1) and L in privity of contract = T1 remains liable for original lease obligations, such as to pay rent

Answer 26

1) if original contracting parties so intend AND 2) it touches and concerns the land - benefits and/or burdens parties with respect to their interests in the property - promises to do a physical act like maintain or repair property generally considered to run with the land Rent covenants run with the land --> assignee (T2) owe rent directly to L - L can sue T2 for rent (privity of estate) AND - L can sue T1 for rent (privity of contract) - BUT if T2 assigns to T3, T2 no longer liable to L (no privity of estate or K)

Answer 27

Original T transfers less than entire interest in remaining term of lease T2 pays rent to T1, who pays L T2 and L ≠ privity of K OR estate (unless T2 expressly assumes covenants) T1 and T2 = privity of K T1 and L = Privity of K and estate

Answer 28

L's remedies = terminate main lease for nonpayment of rent or other breaches of covenant - sublease automatically terminates with main lease Sublessee's rights = no right to enforce any covenants made by L in main lease, EXCEPT IWH

Answer 29

Usually done by deed when L1 conveys to new owner (L2) - T's consent not required - T must be given reasonable notice of assignment Rights of L2 = T must pay rent to L2 as new landlord - all benefits run with estate to L2 Liabilities of L2 = burdens that touch and concern the land also run with estate to L2 (privity of estate) Liabilities of L1 = L1 remains liable on all covenants in lease, unless there's a novation (privity of K)

Answer 30

CL caveat lessee = Let T beware - L has not duty in tort to make premises safe 5 exceptions = CLAPS: Common areas = L duty of reasonable care in maintenance Latent defects = duty to warn of hidden defects (not discoverable by reasonable inspection) that L knows or has reason to know of Assumption of repairs = If L makes repairs, he is liable for any negligence Public use rule = L who leases public space liable for any defects that cause injury to members of the public Short-term lease of furnished dwelling = L is liable for ANY defective condition that proximately injures T

Answer 31

Courts now hold L owes a general duty of reasonable care to residential Ts L is liable for injuries resulting from ordinary negligence if L: 1) had notice of a defect and 2) had an opportunity to repair it

Answer 32

Chattel that has been so affixed to land that it is no longer personal property and has become part of the realty: 1) incorporated into realty so that they lose their identity 2) removal would cause considerable damage to the premises Passes with ownership of the land and must stay put

Answer 33

Person who brings chattel to land owns both chattel and land = fixture person objectively intended to make item part of realty Intent: 1) nature of article 2) manner of attachment 3) amount of damage removal would cause

Answer 34

Chattel brought to land by non-owner (like a T) Agreement between L and T controls whether fixture or not If no agreement, T may remove if: 1) removed by end of lease term and 2) T pays for an damage caused by removal

Answer 35

grant of nonpossessory property interest entitling holder to use/enjoyment of another's land - presumed to be of perpetual duration unless grant specifically limits the interest Examples: - right to lay utility lines on another's land - right of way over another's land - right to tap into a neighbor's drain

Answer 36

Right to onto and so something on servient land servient land = land that is imposed upon by the easement - the burdened land

Answer 37

right to prevent the landowner from doing something that would otherwise be permissible - can only be created expressly, by a writing signed by grantor - no natural or automatic right to negative easement 4 categories = LASS L - Light = preventing access to sunlight A - Air = impeding access to unobstructed airflow S - Support = excavating land that would erode another parcel's underground support S - Stream water from an artificial flow = impede access to stream water coming another parcel Minority = allows easement for scenic view

Answer 38

Appurtenant = relevant to, useful to, helpful to Easement that benefits its holder in the physical use or enjoyment of his own land Two parcels invovled: 1) dominant estate = derives the benefit 2) servient estate = bears the burden

Answer 39

Gives its holder only some personal or commercial advantage unrelated to their use or enjoyment of their land servient land, but no dominant --> easement benefits the holder rather than another parcel Examples: - right to place a billboard on another's lot - right to swim in another's pond - utility company's right to lay power lines on another's lot

Answer 40

Dominant estate (benefit) = automatically transfers, even without mention in conveyance - exception = conveyance of easement to the owner of the servient estate extinguishes easement Servient estate (burden) = only passes if the new owner is BFP with notice of the easement

Answer 41

Not transferable UNLESS for commercial purposes

Answer 42

Created by PING P = Prescription I = Implication N = Necessity G = Grant

Answer 43

Must be in writing and signed by the holder of the servient estate, unless it is to last for less than a year (outside SOF) Writing = Deed of easement

Answer 44

Created by operation of law --> exception to SOF Implied from pre-existing use = quasi-easement Implied without pre-existing use in 2 situations: 1) subdivision plat = buyers of lots have implied easements to use streets to access their lots 2) profit a prendre = implied easement to extract from servient property minerals or other product

Answer 45

Implied when landowner conveys a portion of land with no way out except over part of the grantor's remaining land Owner of servient land has right to locate the easement

Answer 46

Acquire by analogy to adverse possession Elements required = COAH C - Continuous and uninterrupted use for statutory period O - Open and notorious use (discoverable upon inspection) A - Actual use that need not be exclusive H - Hostile use (without servient owner's consent) permission defeats acquisition of easement by prescription (no longer hostile) Cannot be acquired in public land

Answer 47

Arises when grantor conveys title to land but reserves the right to continue to use the tract for a special purpose Easement can only be reserved for GRANTOR --> attempts to reserve for a third party are VOID

Answer 48

Scope is determined by terms of grant or conditions that created it If not specified --> interpreted to accommodate holder's present and future reasonable needs Surcharged easement = legal scope exceeded by easement holder - servient landowner can enjoin excessive use and sue for damages if land was harmed - misuse does NOT terminate the easement by operation of law

Answer 49

If not specified in original easement grant, 8 ways to terminate an easement: END CRAMP Estoppel = servient owner materially changes their position in reliance on oral intent to abandon easement Necessity = expire as soon as necessity ends, unless easement was reduced to an express grant Destruction = servient land destroyed ends easement (unless through willful conduct of servient owner) Condemnation = of servient land by eminent domain (courts split as to whether easement holders are entitled to compensation) Release = easement holder releases - must be in writing Abandonment = physical action on part of easement holder demonstrating intent to never make use of the easement again (mere words are insufficient to abandon) Merger = title to easement and title to servient land become vested in the same person Prescription = servient owner may extinguish by interfering with elements creating it (COAH) - nonuse of easement, without more evidence of intent, is insufficient

Answer 50

Mere privilege to enter another's land for a narrow and delineated purpose - not an interest in land - personal to licensee --> inalienable - No writing required to create --> freely revocable at will of licensor - failed attempt to create an easement = creates a license

Answer 51

Freely revocable at will of licensor, unless estoppel bars revocation: 1) Ticket cases = freely revocable license 2) Neighbors talking by the fence ≠ easement, but LICENSE Estoppel = applies when licensee has invested substantial money, labor, or both in reasonable reliance on license's continuation - license becomes easement by estoppel and lasts until holder receives sufficient benefit to reimburse costs expended License coupled with interest = irrevocable as long as interest lasts - e.g., buyer of chattel may enter seller's land to remove chattel

Answer 52

entitles holder to enter servient land and take some resource Rules for creation and termination = same as for easements May be extinguished through surcharge = profit is exploiting or otherwise unduly burdening the servient land

Answer 53

written promise to do or not do something related to the land - NOT a grant of property interest, but a promise regarding the land

Answer 54

AKA restrictive covenant A promise to refrain from doing something related to land E.g., I promise not to build for commercial purposes

Answer 55

A promise to do something related to land E.g., I promise to maintain our shared fence Less common than restrictive covenants

Answer 56

Distinguished by the remedy sought: Covenant = money damages sought Equitable servitude = injunction sought

Answer 57

One tract is burdened by the promise, the other is benefited Key question = when does a covenant run with the land?

Answer 58

Successor in interest to the burdened estate bound by covenant IF = WITHN Writing = original promise in writing Intent = original parties intended that covenant would run, usually found in conveyance itself Touch and concern = promise is of and pertaining to the land and effects the parties as landowners (use and enjoyment of land) - includes HOA fees and covenants not to compete Horizontal and vertical privity: - Horizontal = connection between original parties --> succession of estate (L-T, G/or-G/ee, M/or-M/ee) - Vertical = connection between successor in interest and originally covenanting party (NOT adverse possession) Notice = successor had notice of promise when she took - actual, inquiry or record notice

Answer 59

Easier for benefit to run than burden Must have WITV: Writing Intent Touch and concern Vertical privity

Answer 60

Covenant may be terminated by: 1) written release 2) merger of benefited and burdened estates OR 3) condemnation of burdened property

Answer 61

Promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land, unless successor is BFP (without notice of covenant)

Answer 62

WITNES Writing Intent Touch and concern Notice (Equitable Servitude)

Answer 63

AKA reciprocal negative servitude Exception to general requirement that original promise be in writing Courts will imply an equitable servitude if a developer subdivides land some deeds contain restrictive covenants while others do not - binds all lots if a common scheme can be proven

Answer 64

Restrictive covenant is binding on all parcels in a subdivision if there was a common scheme: 1) subdivider had a general scheme of residential development (including D lot-holder's land) when the sales BEGAN AND 2) D lot-holder had notice of the promise contained in prior deeds Notice = AIR Actual = literal knowledge Inquiry = should have known with some investigation ("lay of the land") Record = search of public documents

Answer 65

1) Doctrine of changed conditions = surrounding neighborhood has been irrevocably changed as to obviate the purpose for the restriction - must demonstrate that the entire area's essential character has been changed forever 2) Unclean hands = person seeking enforcement is violating a similar restriction on his own land 3) Acquiescence = benefited party acquiesced in a violation by a burdened party 4) Estoppel = benefited party acted in way that reasonable person would believe covenant was abandoned or waived 5) Laches = benefited party fails to bring suit against violator within reasonable time

Answer 66

1) written release from benefit holders 2) merger of benefited and burdened estates 3) condemnation of burdened property

Answer 67

Possession for a statutorily prescribed period of time can ripen into title if certain elements are met COAEH: Continuous = uninterrupted, used as an owner would use (tacking allowed) Open and notorious = apparent to put owner on notice Actual = physical and literal occupation Exclusive = not sharing with true owner or the public Hostile = without owner's permission

Answer 68

Color of title = possession by invalid deed If adverse possessor entered under color of title --> constructive possession of all land the deed describes, as long as actual possession of reasonable portion of that land

Answer 69

Two or more people acting in concert could adversely possess = take as tenants in common

Answer 70

Objective test = irrelevant whether possessor knew they were encroaching Permission defeats hostility

Answer 71

Possession of one co-tenant to exclusion of others is not adverse UNLESS: 1) co-tenant commits ouster OR 2) makes an explicit declaration that they are declaring exclusive possession

Answer 72

Possessor reasonably believes that property belongs to them (invalid deed) Invalid deed ≠ permission Claim of right = possession is hostile

Answer 73

Allowed to adverse possession so long as their is privity between possessors in succession Privity = any non-hostile relationship - e.g., defective deed, will, K, etc.

Answer 74

SOL does not run against a true owner who is afflicted with a disability AT THE INCEPTION of the adverse possession Common disabilities: - insanity - infancy - imprisonment

Answer 75

SOL does not run against a holder of a future interest until interest becomes possessory Event or condition giving rise to a grantor's right of entry does not trigger SOL for adverse possession UNTIL right of entry is asserted by the grantor - before right is asserted, grantee's possession is not hostile

Answer 76

AP uses land in violation of covenant = takes free EVEN IF she knew about it AP complies with covenant for statutory period = takes subject to it

Answer 77

1) land contract = conveys equitable title 2) closing = deed passes legal title and becomes operative document

Answer 78

Period between land contract and closing Gives transferee change to get a mortgage, do requisite inspections, check integrity of title

Answer 79

SOF applies to land sale contracts: 1) K must be in writing 2) signed by party against whom enforcement is sought (D) 3) identify parties 4) describe property 5) state consideration Terms but be definite enough for enforcement

Answer 80

Specific performance with a pro rata reduction in price Land is unique so the remedy for a breach is specific performance

Answer 81

Part performance = equitable doctrine allowing a buyer to enforce an oral real estate contract by specific performance if: 1) oral K is certain and clear AND 2) acts of partial performance clearly prove existence of a K

Answer 82

Second requirement for part performance doctrine met if 2/3 of following are met: 1) Buyer has taken possession of property 2) buyer paid purchase price (or significant portion of it) 3) buyer has made substantial improvements to the premises

Answer 83

1) state general rule that SOF applies to land sale contracts (in writing and signed by party being used) 2) state that K is oral and won't be enforceable unless it falls within an exception 3) state part performance rule and analysis

Answer 84

Once land K is signed, equity regards the buyer as the owner of the real property, but seller (who has legal title) still entitled to possession until closing K conveys equitable title to buyer Deed at closing conveys legal title to buyer

Answer 85

Buyer has equitable title after signing K, so BUYER bears the risk of loss unless K says otherwise BUT if property is damaged or destroyed before closing, seller must credit any insurance proceeds they receive against the purchase price

Answer 86

If one party dies between land K and closing, the interests of the deceased party pass to their estate (K remains enforceable) Buyer's interest = real property Seller's interest = right to purchase price

Answer 87

1) seller will provide marketable title 2) seller will not make false statements of material fact

Answer 88

Title reasonably free from doubt and the threat of litigation

Answer 89

1) defects in record chain of title - adverse possession = no good record title 2) encumbrances = unmarketable unless buyer has waived them - mortgages - liens - easements = beneficial, visible, or known easements do NOT make title unmarketable - restrictive covenants 3) zoning violations = zoning restrictions are fine, but existing violation renders title unmarketable

Answer 90

Seller has the right to satisfy a mortgage or lien at closing with the proceeds of the sale

Answer 91

Title must be marketable on the day of closing If installment land K, must be marketable when buyer has made the last payment Once closing occurs and deed is exchanged, the K is extinguished and seller is no longer liable for implied promises in K --> only liable for express promises made in the deed

Answer 92

K is NOT void Buyer must notify seller and give him reasonable time to cure the defects Remedies if seller fails to cure: - rescission - damages - specific performance with abatement of purchase price - quiet title suit Quitclaim deed does NOT affect implied covenant to provide marketable title

Answer 93

Implied promise that seller will not make any false statements of material fact Seller may be liable after closing for failure to disclose latent material defects or knowingly making a false statement that buyer relies on

Answer 94

Seller is liable for failure to disclose if: 1) seller knows or has reason to know of the defect 2) seller must realize that the buyer is unlikely to discover the defect AND 3) defect must be serious enough that buyer would probably reconsider the purchase

Answer 95

Seller cannot avoid liability with general disclaimer of liability like "sold as is" or "with all faults" Seller CAN disclaim specific types of defects like "seller is not liable for any defects in the roof"

Answer 96

Caveat emptor (buyer beware) is the common law norm - UNLESS the sale is of a new home by a builder

Answer 97

Closing date is usually not binding, unless time is of the essence: 1) contract states it 2) circumstances indicate parties intended OR 3) one party gives the other party notice that time is of the essence

Answer 98

Contract merges with the deed and seller is no longer liable on promises in the K, only those in the deed Deed = transfers legal title from seller to buyer

Answer 99

LEAD = Lawfully Executed And Delivered

Answer 100

Valid deed execution requires: 1) writing signed by grantor 2) unambiguous description of the land 3) identification of the parties by name or description AND 4) words of intent to transfer, such as "grant" Deed does NOT need consideration

Answer 101

If description is insufficient to provide a "good lead", title is NOT transferred If ambiguous (not vague or inadequate) parol evidence is permitted

Answer 102

Court presumes person taking delivery of deed has authority to fill in name of grantee --> if filled in, deed is valid BUT if land description if blank, deed is VOID UNLESS grantee was explicitly given authority to fill it in

Answer 103

Deed is not effective to transfer an interest unless it has been delivered Turns on grantor's intent that title pass immediately - question = did grantor have present intent to part with legal control? - EE allowed to prove grantor's intent to pass title

Answer 104

Acceptance is presumed BUT rejection defeats delivery If grantee expressly rejects the deed, it is ineffective to pass title

Answer 105

Delivery is presumed if: 1) grantee has possession of the deed 2) deed is handed to the grantee 3) deed is acknowledged by grantor in front of a notary OR 4) deed is recorded

Answer 106

Oral conditions = If deed is absolute on its face, the oral condition drops out and delivery is complete Written conditions = generally valid when delivered

Answer 107

Delivery to third party with instructions to deliver deed to intended grantee = valid delivery

Answer 108

1) quitclaim deed 2) general warranty deed 3) special warranty deed

Answer 109

No covenants for title in this deed! Grantor isn't even promising that he has title to convey Worst deed grantee could hope for

Answer 110

Warrants against all defects in title, including those attributable to grantor's predecessors Contains three present and three future covenants

Answer 111

Covenant is breached, if ever, at time deed is delivered SOL for breach of present covenant begins to run at delivery Present covenants: 1) covenant of seisin = grantor owns the estate and is vested with ownership interest that she is entitled to transfer 2) covenant of the right to convey = grantor has the power to transfer her interest (no temporary disabilities or restraints on alienation) 3) covenant against encumbrances = no servitudes or liens on the land - for deeds, breached even if grantee knew of encumbrance

Answer 112

Covenant is not breached, if ever, until grantee is disturbed in possession SOL beings to run when grantee is disturbed in possession Future covenants: 1) covenant for quiet enjoyment = no lawful third party claims of title 2) covenant of warranty = promise to defend against reasonable claims of title by a third party and compensate any loss from claim of superior title 3) covenant for further assurances = grantor will perfect grantee's title if it later turns out to be imperfect

Answer 113

Contains same covenants as general warranty deed, but grantor makes promises only on behalf of himself, no his predecessors in interest

Answer 114

If no designation of type of deed, many states have statutes providing that the deed creates by implication two limited assurances against acts of grantor only: 1) that grantor has not conveyed the same estate or any interest to anyone other than grantee 2) that estate is free from encumbrances made by grantor

Answer 115

void deed = set aside by court even in property has passed to a BFP - forged - never delivered - issued to a nonexistent grantee - obtained by fraud in the factum (grantor was deceived and didn't realize she was executing a deed) voidable deed = set aside only if property has not passed to a BFP - executed by minors or incapacitated persons - obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty

Answer 116

Race = B wins, if he records properly before A does Notice = B wins, if he was a BFP when he took, regardless of whether he records before A does - last BFP to take wins Race-notice = B wins if B is a BFP and he records properly before A does

Answer 117

Grantee who: 1) is a purchaser (didn't take by gift, will or inheritance) 2) pays valuable consideration 3) takes without notice (AIR) of prior conveyance Prevail over prior transferees: 1) in notice jx if last to take 2) in race-notice jxif they record first

Answer 118

Recording statutes protect purchasers, NOT donees, heirs and devisees who don't give value 2 routine value questions: 1) bargain basement sale = still a purchaser for value if pay less than FMV 2) doomed donee = recording statutes do not protect donees, heirs, or devisees unless the shelter rule applies

Answer 119

AIR Actual = prior to closing, B learns of A Inquiry = B is charged with knowledge of what a reasonable inspection would have revealed Record = B on notice of deeds properly recorded in chain of title

Answer 120

1) race statute = first party to record wins 2) notice statute = subsequent BFP prevails over prior grantee who failed to record 3) race-notice statute = subsequent BFP who records first prevails

Answer 121

Typical language of a notice statute

Answer 122

Typical language of a race statute

Answer 123

Typical language of a race-notice statute

Answer 124

"First" only = race statute "Notice" only = notice statute "Notice" and "First" = race-notice statute

Answer 125

sequence of recorded documents capable of giving record notice to later takers Proper recordation puts later buyers on record notice, thereby defeating their status as BFPs (no longer without notice!)

Answer 126

Through a title search of the grantor-grantee index

Answer 127

1) transferees from BFP - the shelter rule 2) problem of the wild deed 3) estoppel by deed

Answer 128

Transferee "takes shelter" in the status of her transferor, who was a BFP, even though transferee otherwise fails to meet requirements of BFP status Anyone who takes from a BFP will prevail against any interest BFP would have prevailed against

Answer 129

protect the BFP by making it easier for him to transfer successfully without being weighted down by grantor's double dealings

Answer 130

Wild deed = recorded deed that isn't connected to the chain of title - does not impart constructive notice because a subsequent purchaser could not feasibly find it Problem = O sells to A, who does not record. A sells to B, who records the A to B deed (not connected to chain of title = wild deed) O then conveys to C, who has no notice of previous conveyances. C records O to C deed. Result = A subsequent purchaser will prevail against the party with a wild deed - So, C will prevail over B (who had the wild deed)

Answer 131

Purchaser of any property should insist at closing that seller provide an missing deed in chain of title

Answer 132

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires title that he had previously purported to transfer BUT if transferee records before title is validly conveyed, early recording is outside the chain of title, and a subsequent BFP will win

Answer 133

Judgment creditors and lien holders are generally NOT protected by the recording acts, even if they record the lien

Answer 134

Mortgage = land financing Mortgagor = borrower, person owing money to lender Mortgagee = lender or creditor - "Gee, I hope he pays me back!"

Answer 135

1) promissory note = mortgagor's personal obligation/liability for the loan 2) mortgage = agreement that if mortgagor stops paying, the land can be sold to pay it off (foreclosed)

Answer 136

PMM = lender has a security interest in the real estate that their loan enables the mortgagor to acquire Non-PMM = loan that is secured by a property that was not purchased with the loan funds

Answer 137

Union of two elements to create a mortgage: 1) debt = note 2) voluntary transfer of a lien in debtor's land to secure the debt, in writing = legal mortgage

Answer 138

1) mortgage deed 2) deed of trust 3) sale leaseback 4) security interest in land

Answer 139

Mortgagee can transfer interest by: 1) Endorsing the note and delivering it to transferee OR 2) executing a separate document of assignment

Answer 140

Buyer either: 1) assumes mortgage or 2) takes property subject to the mortgage

Answer 141

Assumption = grantee agrees to be personally liable for the mortgage Taking subject to = grantee assumers no personal liability, but if mortgage goes unpaid, mortgagee can foreclose

Answer 142

Assumption: 1) Grantee signs an assumption agreement 2) Grantee becomes primarily liable to the lender 3) Original mortgagor is secondarily liable as a surety 4) Mortgagee can sue either party on the debt Taking subjection to: 1) Grantee signs no assumption agreement 2) Grantee is not liable to lender 3) Original mortgagor remains primarily and personally liable for the debt 4) Mortgagee can still foreclose if debt unpaid

Answer 143

Discharges original mortgagor of all liability

Answer 144

Allows lender to demand full payment of the loan if mortgagor transfers any interest in the property without lender's consent

Answer 145

If recorded, the mortgage stays on the land - Grantee automatically takes property subject to mortgage (unless specifically assumed) and mortgagee can foreclose on the land with default - recording statutes protect mortgagees

Answer 146

All recording statutes apply to mortgages as well as deeds --> a subsequent buyer takes subject to a properly recorded lien Notice state = subsequent BFP prevails over a prior mortgagee who has not yet properly recorded at the time BFP takes

Answer 147

When mortgagor defaults, land is sold and proceeds go to satisfying the debt

Answer 148

Mortgagor tenders to mortgagee, permitting mortgagee to take immediate possession without a foreclosure sale NOT a foreclosure = does not terminate any junior liens on the land

Answer 149

Mortgagee brings deficiency action against mortgagor

Answer 150

Junior interests are paid in descending order of priority from sale proceeds and then TERMINATED If sale proceeds to do not cover a junior mortgagee's interest, they can proceed for a deficiency judgment

Answer 151

Foreclosure does not affect any senior interest to the mortgage being foreclosed Buyer takes subject to any senior mortgage

Answer 152

If agreement with senior mortgagee is modified to be more burdensome, junior mortgage will be given priority over the modification

Answer 153

1) Debtor 2) All junior lienholders

Answer 154

the preservation of that party's claim, despite the foreclosure and sale If necessary party is not joined, their mortgage will remain on the land

Answer 155

1) expenses of the sale, including attorneys' fees and court costs are paid 2) principal and accrued interest on foreclosing party's loan 3) any junior lienholders in the order of their priority 4) mortgagor is there's a surplus

Answer 156

A creditor must record to have priority Priority = first in time, first in right

Answer 157

PMM mortgagee has first priority in the land financed IF they record properly

Answer 158

Agreement for senior creditor to subordinate its priority to a junior creditor

Answer 159

Debtor has a right to redeem the land by paying off the mortgage any time prior to the foreclosure Right to redeem is cut off by the foreclosure sale

Answer 160

Permits mortgagee to declare full balance due on default

Answer 161

Mortgagor pays off missed payments plus accrued interest and costs

Answer 162

Mortgagor must pay off entire balance owed plus accrued interests and costs

Answer 163

Means that mortgagor cannot waive right to redeem in the mortgage itself

Answer 164

Gives the mortgagor a statutory right to redeem for some fixed period AFTER the foreclosure sale - usually 6 months or one year - amount to be paid is usually foreclosure sale price, rather than amount of original debt

Answer 165

Pursuant to state police powers, government can enact statutes to reasonably control land use for protection of health, safety, morals and welfare of its citizens

Answer 166

14th Am Due Process and Equal Protection Clauses 5th Am No Takings Without Compensation Clause

Answer 167

Permits a landowner to depart from the literal restrictions of a zoning ordinance - principal means to achieve flexibility in zoning

Answer 168

Proponent must show: 1) undue hardship in complying - won't be granted if hardship created by proponent themselves 2) no diminution to neighboring property values Zoning board grants or denies variance

Answer 169

A once lawful, existing use now deemed nonconforming by a new zoning ordinance cannot be eliminate all at once unless compensation is paid

Answer 170

Creates a hierarchy of uses of land Highest use = single-family housing Lowest use = industrial Land zoned for a particular use may be used for the stated purpose AND any higher ranked use -e.g., commercial zoning may include apartments and/or single-family homes

Answer 171

Land may be used ONLY for the purpose for which it is zoned No "trading" up or down

Answer 172

Permit must be obtained even though the zoning is proper for the intended use, because the use presents certain safety or general welfare concerns Must comport with checklist of safety-based criteria to obtain permit Examples: - hospitals - drive-in businesses - gas stations - funeral homes

Answer 173

Each owner has fee simple ownership in their individual unit and a TIC with all other residents in the exterior and common areas Common elements: - walkways - hallways - community pool - community room

Answer 174

Each condo owner is a member of the HOA Members elect a board, which manages the property and oversees the common elements

Answer 175

Declaration of covenants, conditions and restrictions (CC&R) = prescribes what owners can and cannot do with their property - enforced by HOA board

Answer 176

Each unit pays regular dues to HOA, which are used to maintain common elements

Answer 177

One-time fee that each owner must pay if the monthly dues to not cover a necessary expense

Answer 178

Natural rights = an owner of real property has exclusive right to use and possess surface, airspace, and soil of the property

Answer 179

Land owners have the right to have their land supported in its natural state by adjoining land

Answer 180

unadorned, pristine, unencumbered by structures

Answer 181

1) land in natural state = strict liability 2) land improved by buildings = liable if negligent - BUT if P can prove that buildings did not contribute to the collapse, D could be strictly liable

Answer 182

Water belongs to those who own the land bordering the watercourse 1) Natural flow theory = riparian owner's use is enjoinable if it results in substantial or material diminution of water's quality, quantity or velocity 2) Reasonable use theory = All riparians share the right of reasonable use of the water: - alteration of flow - purpose of use - pollution - extent of use - destination of water taken

Answer 183

Water initially belongs to the state, but right to divert and use it can be acquired through actual use of the water - First in time, first in right - Right can be lost by abandonment

Answer 184

Surface water = water without a channel that passes over land and has not yet reached a natural watercourse or basin Landowner can use surface water within their boundaries for any purpose

Answer 185

1) Natural flow theory = owners cannot alter natural drainage patterns - BUT most states today allow reasonable changes 2) Common enemy theory = Owner can take any protective measures to get rid of water or combat its flow - BUT unnecessary damage to others' land is prohibited 3) Reasonable use theory = balances utility of the use against gravity of the harm ***No cause of action unless diversion of surface water was malicious

Answer 186

Possessor of real property has the right to exclude others Remedies for invasions include actions for: 1) trespass = invasion by tangible physical object 2) private nuisance = invasion by intangibles such as odors or noise 3) continuing trespass = repeated invasion by trespasser 4) ejectment or unlawful detainer = removes a trespasser or tenant - often joined with a claim for money damages