Real Property Flashcards
land acquisition issues
AL’S CDs Dont Record
adverse possession land sale security interest conveyance by deed delivery by deed devise by will recording acts
adverse possession
a o h c
adverse possession allows one who has wrongfully entered a property to obtain possession of that property when there has been actual possession, which is open and notorious, hostile and continuous for the statutory period
actual - claimant must have exclusive use of the property which means he must physically occupy the space.
true owner must be excluded and must not be open to gen public
claimant may only claim possession of the part of the property actually used
open and notorious - claimant must possess and use the property in a way that a true owner would and sufficient to put the true owner on notice
hostile - possession of the land must be without the owner’s consent. mistake with occupation counts as hostile
continuous - possession must be continuous for the statutory period. usually 20 yrs, owner must not re-enter or starts over, seasonal must match seasonal
tacking
one adverse possessor may tack his time with time of another adverse possessor to meet the required statutory period if they are in privity
effect of adverse possession
does not convey title, however the title can quieted and made marketable by a judicial action
land sale contract
k law, m d r
the contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing, at which time the deed becomes the operative document governing the land
k law
a contract for the sale of an interest in land
SOF applies- k in writing, name the parties, signed by the party to be bound, state some consideration
part performance - possession plus payment, substantial improvements, conveyance made by seller
marketable title
implied promise in every land sale K that the seller covenants to transfer marketable title at the time of closing. marketable title is title free from reasonable doubt about the seller’s ability to convey what he purports to convey
doctrine of equitable conversion
once the K is signed, the buyer is deemed owner of the property. if property is destroyed, buyer assumes risk
remedy
can sue for damages (difference between the market price and the contract price ) or specific performance because land is unique
specific performance
a permanent injunction in contract where the court forces the defendant to perform on the contract as as promised. req’s
contract valid
contract conditions imposed on P have been met
inadequate legal remedy - its land
mutuality - both parties must be eligible to have their performance ordered by the court
feasibility - injunction can not be too difficult for the court to enforce
no defenses - laches or unclean hands or defenses to K such as SOF
security interest in land
m d iK
mortgage - a mortgage is a financing agreement that conveys a security interest in land where the parties intend the land to be collateral for the loan
req’s:
writing - SOF exception equitable mortgage if mortgagor delivers deed to mortgagee
rights of parties
rights of parties - the buyer-mortgagor has the right to possession of the property and the title, the creditor-mortgagor has a lien which grants the right to look to the land in the event of default
foreclosure
a process by which the mortgagee may reach the land in satisfaction of the debt if the mortgagor is in default
judicial - must foreclose by proper judicial proceeding
-priority of loans - after land is sold, the proceeds go to satisfy any debts secured by the property. debts are paid in descending order of priority (usually chronologically) and each creditor is entitled to full payment before a lower ranking creditor receives any
purchase money mortgage - has priority over all others but can not get a deficiency judgment against debtor
- antideficiency statutes - limit a lender from receiving more than the value of the loan. excess returned to debtor after foreclosure sale
deficiency judgment - occurs when the property is worth less than the amount that the debtor owes. a lender may sue the debtor personally for the difference if:
there was a judicial foreclosure and not a PMM
deed of trust
is similar to a mortgage except the debtor is a trustor and the deed is given to a third party trustee
installment K
buyer makes a down pymnt and pays off the balance in installments. buyer does not receive a deed until the land is paid off, typically if the buyer defaults, the land goes back to the seller and keeps the installment pymnts
conveyance by deed
r 3 d m
a deed is a document that serves to pass legal title from the grantor to the grantee when it si lawfully executed and properly delivered
deed req’s
a deed must meet the formalities to be lawfully executed identification of parties signature of the grantor adequate description of the party no consideration is required
3 types of deed
q gw sw
quitclaim - conveys whatever interest the grantor actually has in the property but contains no warranty of title
general warranty deed
3p sra 3f wqf
warranty against all defects in title and contains six covenants for title
seisin - warrants he owns what he is conveying
right to convey - has the power to make the conveyance
against encumbrances - no encumbracnces
warranty of title - will defend should there be any lawful claims of title
quiet enjoyment - promises no third party disturbance of possession
further assurances - any future actions to perfect title
real covenant
real covenants are promises between two or more parties which meet certain technical requirements where they intend the promise to be binding on future holders of the land. The requirements are different whether they burden or benefit the land. The remedy for breach is money damages.
real covenant req;s
burden - w i h&v n
writing - must be in writing
intent - must intend for the burden to run with the land
touch and concern land - restricts the usage of the servient parcel
h v v privity - h refers to the original promising parties
v refers to successor who is now the holder of the interest
notice - can be actual, constructive or inquiry
rel covenant req’s and equitable servitudes
benefit
written - must be in writing
intent - must intend to bind successors
touch and concern - promise benefits dominant parcel
vertical privity only and no notice required
equitable servitudes are the same as covenants bt no notice requried and enforced in equity
implied reciprocal servitude
court can imply a reciprocal equitable servitude if the original owner intended a common scheme or plan and the purchaser has notice of the scheme
common plan or scheme can be evidenced by a recorded plat, a general pattern of restrictions or representations to early buyers
notice can be actual, constructive, or inquiry. visual inspection gives appearance of conformance to certain standards
remedy is injunction
termination of covenants
by agreement of all parties in a sufficient writing
abandonment of action
changed circumstances
easement
an easement is the right to use the land of another and are nonpossessory property interests. the parcel that is burdened is the servient estate and the parcel that is benefited is the dominant estate
express easement
is created in writing including one that satisfies the statute of frauds
scope of easement i
intended to meet both present and future needs of the dominant parcel due to normal, foreseeable development
easement by prescription
created by actual possession or use, open and notorious, hostile to the true owner and continuous for the statutory period
easements - sale of servient land
passes automatically unless new owner is BFP (valu, without notice)
recording acts
mechanism to protect a subsequent purchaser from a prior inconsistent transaction
cl - first in time, first in right
most jurisdictions use a notice, race-notice or race statute which offer varying levels of protection
marketable title
every land sale has a presumption of marketable title and is title free from reasonable doubt
merger
once deal has closed, the K merges into the deed and the deed will control
joint tenancy
2 or more own the a single unified interest with rights of survivorship. 4 unities. must devise or convey their interest during their life
Severance
moving out will not destroy JT
inter vivos transfer will sever the jt and create a tenancy in common with the parties whose interests have been transferred
tenants in common
have no right to survivorship and own an individual aprt with the right to possess the whole
execution of a deed
writing, identifies parties, signed by grantor, property description adequate
co-tenants in possession
have the right to retain profits from their own use of property but must share net rents from third parties
co-tenants
must share costs for necessary repairs but not for improvements
landlord duties
must maintain all common areas, fix latent defects of which he is aware, and if repairs made, then nonnegligently
defense to rent
constructive eviction
req's premises are virtually uninhabitable notice to landlord fails to respond tenant moves out
breach of warranty of habitability
applies to residential leases only and requires that the premises be fit for human habitation. if not habitable, tenant has option of
terminating lease and move out
make repairs and deduct from rent
pay reduced rent, stay on premises and sue for damages
implied covenant of quiet enjoyment
landlord warrants that he or anyone acting for him will not interfere with the tenant’s use of land. not responsible for strangers
easement
an easement is the right to use the land of another and are a nonpossessory interest in land. may be affirmative (right to do something) or negative (prevents landowner form doing something on his own land), appurtenenant (with the land) or in gross( person has right)
creation of easement 5
e i n p e
express - complies with SOF ,grantor can reserve right to use
implication 4 - req’s land was originally one parcel, land is severed into more than one parcel, use of the property existed prior to severance, easement is reas. necessary to enjoyment of land
necessity - common ownership, easement is trictly necessary, prior use not required
prescription - actual, open, hostile, continuous
estoppel - allows use of the property that user will change position in reliance on continuation
