Real Property Flashcards
Easements
An easement holder has the right to use another’s land for a special purpose, but has no right to possess or enjoy that land; easements can be appurtenant or in gross.
Easement Appurtenant
An easement appurtenant benefits the dominant estate and burdens the servient estate; it passes with the transfer of the BENEFITED land, mention of the easement in the conveyance is irrelevant. The easement burden will not pass if conveyance is to a bona fide purchaser with no ACTUAL or CONSTRUCTIVE notice of the easement.
Easement in Gross
An easement in gross benefits the holder, not an estate, and is not transferable unless it serves an economic or commercial interest.
Foreclosure
Foreclosure is a process by which the mortgagor’s interest in the property is terminated. Foreclosure destroys all interest junior to the mortgage being foreclosed, including easements. Priorities among mortgages on the same real estate are normally determined by chronology; the earliest mortgage is first in priority. However, failure to record may change chronological priority.
Recording Acts
Where a party fails to record, the result depends on whether jurisdiction applies race, notice, or race-notice recording statute. Mortgagees for value are treated as “purchasers” either expressly by the recording act or by judicial classification.
Notice Statutes
Under a notice statute, a subsequent BFP prevails over a prior grantee who failed to record provided the BFP had NO ACTUAL OR CONSTRUCTIVE NOTICE AT THE TIME OF THE CONVEYANCE.
Race - Notice Statutes
Under a race-notice statute, a subsequent BFP is protected only if she TAKES WITH OUT NOTICE AND RECORDS BEFORE prior grantee.
Race Statutes
Under a pure race statute, whoever records first, wins; notice is irrelevant.
Bona Fide Purchaser
A bona fide purchaser is one who takes without notice and pays valuable consideration for the land.
Actual Notice
Actual notice includes knowledge obtained from any source.
Constructive Notice
Constructive notice refers to recordation of deeds in such a manner that a researcher could reasonably find it.
Inquiry Notice
Under certain circumstances, a purchaser is required to make reasonable inquiries and is charged with the knowledge of whatever the inquiry would have revealed. Quitclaim deeds do not charge purchaser with inquiry notice.
Foreclosure - Inclusion of Necessary Parties
Because foreclosure destroys all junior interests, such interests are necessary parties and must be included in the foreclosure action. Failure to do so preserves a subordinate party’s interest despite foreclosure and sale.
Easements - Transfer
If the servient parcel is transferred, its new owner takes subject to the burden of the easement, UNLESS she is a BFP with no notice.
Deed Formalities
A deed must be IN WRITING, be SIGNED by the GRANTOR, and reasonably IDENTIFY the PARTIES and the LAND. Conveyance requires DEED, DELIVERY, and ACCEPTANCE (presumed).
Inter vivos gift conveyances must show:
1) donative intent
2) delivery
3) acceptance
General Warranty Deed - Covenants
With a general warranty deed, the grantor covenants against title defects made by himself and prior title holders.
Against Encumbrances Further Assurances Quiet Enjoyment Right to Convey Seisin Warranty
Covenant of Seisin
The grantor covenants that she has the estate she purports to convey including both title and possession at the time of the grant.
Covenant if Right to Convey
The grantor covenants that she has the authority to make the grant; this can be satisfied by title alone.
Covenant Against Encumbrances
The grantor covenants against the existence of PHYSICAL or TITLE encumbrances (i.e., encroachments, mortgages).
Covenant of Quiet Enjoyment
The grantor covenants that the grantee will not be disturbed in possession by a third party’s LAWFUL claim of title.
Covenant for Further Assurances
The grantor promises to perform acts reasonably necessary to perfect the title conveyed.
Breach of Covenants
S RC E are breached, if at all, at time of CONVEYANCE
F Q W are breached ONLY upon disturbance of grantee’s possession.
