Real Property

Question 1

Adverse Possession

Answer 1

Permits a trespassers possession to ripen into ownership of that property through the passage of time.

AP holds same interest held by the former owner.

** NY requires a good faith claim of right of ownership in the land owner in order to obtain title by AP

Question 2

Adverse Possession Elements:

Answer 2

By CLEAR and CONVINCING EVIDENCE

Exclusive possession not shared with the owner

Owners was Under no disability when the adverse possession began (could have sued to eject the trespasser)

Notorious and open possession which would put the owner and her neighbor on notice that a trespasser was on the land

Under an objective good faith belief that she owned the land, requires a reasonable basis for that belief
** May not be used on non-structural encroachments = sheds, bird houses

Continuous and uninterrupted actual possession (can “tack” on time with privity)

• • Color of title (forged deed) of partial land is deemed to have possessed entire parcel
• • NO written doctrine then under “foot print doctrine” only portion actually occupied

Hostile possession, hostile towards the owners title but not necessarily hostility to the owner

Question 3

Mortgage

Answer 3

Convey security for a loan

Question 4

When a buyer of realty finances the purchase price, documents needed:

Answer 4

1. Note (promising repayment)

2. Mortgage to secure repayment of the loan, then recorded by the bank in the chain of title

Question 5

Mortgage Foreclosure

Answer 5

Legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.

Question 6

FIVE NY rules on residential foreclosures (NY requires judicial foreclosures):

Answer 6

1. Bank must have sent 90 day notice to secure the default and contain at least 5 counseling agencies to assist
2. Proof of service (filed w/n 20 days)
3. Process served on color paper = payment of mortgage payments will not stop foreclosure + Warning about foreclosure rescue scams
4. Mandatory settlement conference within 60 days from affidavit of service filed and parties must negotiate a good faith attempt to settle
5. Bank attorney must file an affirmation of communication with bank official —> Bank documents have been personally reviewed and accurate —> Attorney affirms to the court that on inspection the docs are accurate and complete

Question 7

Concurrent estates

Answer 7

Exists where two or more persons hold a simultaneous present or future interest in the same piece of real property

Question 8

Tenancy in common

Answer 8

Where multiple parties concurrently own realty with no right of survivorship

When one TC dies, her interest in the property passes through her estate

** Presumption: Absent specific survivorship language to the contrary, property passing to two or more unmarried persons passes to TC’s without a right of survivorship

Question 9

Joint Tenancy

Answer 9

Each hold undivided possessory interest but they also enjoy a right of survivorship

Upon the death of one of the JT’s that decedents interest passes to the surviving JT’s

**May convey w/o permission, new JT is TC

** JT’s interest may be attached by a judgment creditor (does not effect severance of the JT)

Question 10

To create a JT or TE four unities must exist:

Answer 10

Possession

Interest (same percentage of ownership)

Time (acquired at the same time)

Title (created from same deed or will)

Question 11

Tenancy by the Entirety

Answer 11

Requires a valid marriage, neither spouse may unilaterally destroy w/o the consent of the other

**Judgment lien only survives by consented partition or if debated spouse survives

*** NY permits either spouse to unilaterally mortgage, convey, or encumber their ownership

**NY deeds on or after 9/1/75 presumes JT is not validly married

Question 12

A tenancy by the entirety is defeated by:

Answer 12

Death by one of the spouses where 100% interest automatically vests title in surviving spouse

Where one spouse becomes a Debtor in bankruptcy

Dual transfer, which both husband and wife take part

MBE Divorce or annulment (or NY any DADS decree, separation judgment)

• Dissolution decree
• Annulments
• Divorce
• Separation judgment

Question 13

Good Faith Condition

Answer 13

The law imposes on parties an implied condition of good faith, i.e. that is neither may do anything to prevent full performance of the contract, NY makes an exception for real property contracts conditioned on attorney approval