Real Property 61-74 Flashcards
What is a Bona Fide Purchaser (BFP)?
A person who:
Takes real property without notice of a prior conveyance;
AND
Pays valuable consideration.
*Receipt of land by gift or bequest does not constitute BFP status.
*Shelter rule: a person who purchases from a BFP receives the same status and rights as a BFP.
Priority: Medium
Who must sign the deed?
The grantor of the real property MUST sign the deed, BUT they may designate an agent to sign on their behalf.
If an entity is the grantor, then authorized personsmust sign the deed on behalf of the entity.
The grantee is NOT required to sign.
Priority: N/A
What is required for a valid Mortgage?
It must be:
In writing;
Signed by the party to be charged; AND
Reasonably identify the parties and the land.
Priority: N/A
What does foreclosure do to a mortgage?
It destroys junior mortgages, in that any mortgage recorded after the mortgage being foreclosed on will be extinguished.
However, all prior recorded mortgages are NOT affected.
Priority: Medium
What is a Purchase Money Mortgage?
When the seller is the lender who secures the mortgage on the real property.
The buyer of the property is the borrower.
Priority: Low
Who does the holder of a Purchase Money Mortgage have priority over?
All claims and mortgages against the mortgagor prior to the purchase of the property;
ALL subsequent claims and mortgages, unless defeated by a recording statute.
Priority: Low
What is a Future Advance Mortgage?
A loan in which the lender may provide future payments under the original loan.
The lender secures a mortgage on the real property for the entire amount of the loan, including any future advances.
Priority: N/A
What parties are involved in a Deed of Trust?
The borrower;
The lender; AND
A third-party trustee who holds title to the property until the loan is paid off.
Priority: Low
Express vs. Implied Mortgage Assumption
Express Assumption: There is an express agreement for the grantee to take the real property and continue making payments to the lender.
Implied Assumption: No express agreement exists; the grantee pays the seller only the equity in the home, and the grantee continues making payments to the lender for the balance.
Priority: N/A
What is a Variance?
When may it be granted?
It is an exception to a zoning ordinance, and two types exist:
Use variance;
Area variance.
It may be granted if: (1) the owner suffers a hardshipbecause of the ordinance; AND (2) the variance would NOT damage or harm the public welfare.
Priority: Low
What does the Doctrine of
Previous Non-Conforming Use allow?
The landowner may continue to use his land that is in violation of a later enacted zoning law. It will only be grandfathered in if it remains in continuous use.
Priority: Low
Does a landowner have the right to lateral support by adjoining land?
YES, a landowner has the right to have her land supported by adjoining land.
When excavations cause a loss of support to adjoining land in its natural state, a landowner is strictly liablefor damages.
However, when the excavations cause a loss of support to adjoining land that has been improved, a landowner is only liable if she was negligent in the excavations.
Priority: Low
Conflict of Laws
What is the situs rule for Real Property actions?
That the laws of the state where the real property is located will generally govern (i.e. cases involving the title or a contract for the sale of real property).
*States have a strong interest in actions that affect real property within their state.
Priority: N/A
Conflict of Laws
When real property is incidental to a contract, what tests are used to determine the applicable law?
Situs Rule – the laws of the state where the real property is located will govern. (1st Restatement).
The state with the Most Significant Relationship to the property will govern.(2nd Restatement).
Interest Analysis Test– situs rule will apply UNLESS another state has a greater interest in having their law applied.
*Apply the test that has been adopted by the jurisdiction.
Priority: N/A
