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Real Property Flashcards

1
Q

Adverse Possession

A

is when a trespasser may acquire a title to another’s property without compensation by possessing property for a specified period of time, in manner conflicting with true owner’s rights.

Elements:

H - ostile - w/o owner’s permission, no knowledge or intent requirement
O- pen & Notorious - must be conspicuous that the True Owner would know of trespass but need not actually know
A - ctual & Exclusive - possess reasonable portion of property to exclusion of owner and the public
C-ontinuous for statutory period of time - possession must be similar to ordinary owner’s use; daily possession not required

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2
Q

If someone is Disabled, what is the rule for Adversely Possessing a disabled person’s property?

A

SOL doesn’t start when the TO is disabled; can’t adversely possessed disabled person

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3
Q

If the property one is trying to adversely possess is a government property, what is the rule?

A

You cannot adversely possess government property

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4
Q

What is tacking in Adverse Possession?

A

Tacking in AP is when two successive APs may add the amount of time that they possessed the property to satisfy the statutory limits. However, the two APs must be in privity with each other meaning there must be some sort of relationship.

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5
Q

Explain in a big picture what happens in a Land Sale Contract

A

When buying real property, first there is a 1) contract which governs the sale of the real property; 2) the escrow period which is the period of time after the K has been signed and before the property has been conveyed, 3) closing, 4) conveyance of the deed. From 1-3 the Contract for conveyance of interest in real estate governs until closing, then 4 the deed becomes the operative document governing land transfer under the merger doctrine. Remember SoF applies in Land-Sale K and remember the part performance exceptions to SoF.

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6
Q

Doctrine of Merger

A

Merger Doctrine states that upon closing that K and the Deed will merge. Thus, if there is any K issues, you cannot sue on behalf of the K if closing already occurred.

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7
Q

Doctrine of Equitable Conversion

A

The Doctrine of equitable conversion states that when a buyer buys real property from a seller and the K has signed, the buyer owns the real property. As such if the property is destroyed before the closing of the deal, through no fault of either party such as unforeseeable event like a storm, or fire, the risk of loss passes to the buyer.

MBE Rule – if the seller has insurance in the real property, then seller must give insurance to the buyer
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8
Q

Marketable Title

A

In every land sale K, there is an (1) implied promise to deliver a marketable title and (2) that the seller must not make false material statements or misleading statements with respect to the real property. Marketable title is title free from risk of litigation. If a property is subject to a mortgage, lien then it is not marketable however the seller has the ability to cure the defect prior to closing. If a property has an easement, or zoning ordinance violation, then it is not marketable.

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9
Q

Deed

A

A deed is a written instruments that grants property from the grantor to the grantee. The deed must be 1) lawfully executed and 2) must be delivered. Lawfully executed means that the deed must state the identification of the parties, the deed must name the property to be transferred. Delivered means that the grantor must have the intent to transfer the property and the deed must be accepted.

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10
Q

Quitclaim Deed

A

conveys whatever interest the grantor has in the property but contains no covenants of title

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11
Q

General Warranty Deed

A

warrants against all defects in title and contains 6 covenants for title. 3 present and 3 future

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12
Q

What are present covenants?

A

Present covenants are breached at the time of the sale (when the deed is delivered) if breached at all. There are 3 present covenants 1) seisin, 2) right to convey and 3) against encumbrances

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13
Q

Present Covenant: Seisin

A

the grantor warrants he owns what he says he owns

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14
Q

Present covenant: right to convey

A

grantor warrants he has right to convey

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15
Q

Present covenant: against encumbrances

A

grantor warrants no encumbrances

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16
Q

Future Covenants

A

run with the land, are continuous and breached if ever at the time grantee is disturbed in possession

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17
Q

Future Covenant: Warranty of Title

A

Grantor promises to defend should there be any lawful claims of title asserted by others

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18
Q

Future Covenant: Quiet Enjoyment

A

Grantor promises that the grantee will not be disturbed in possession by any third parties lawful claims of title

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19
Q

Future Covenant: Further Assurances

A

Grantor will do whatever future acts are reasonably necessary to perfect title

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20
Q

Mortgages

A

A mortgage creates a security interest in a property. When a person takes on a mortgage to buy property, there is usually 1) a note which is the promise to pay off the loan and the 2) mortgage.

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21
Q

Purchase Money Mortgage

A

PMM is the loan borrowed use to pay off the real property. PMM receives priority over non-PMM mortgages and PMM no deficiency judgment

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22
Q

Future Advantage Mortgage (aka Second Mortgage)

A

line of credit used for home equity, construction, business etc

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23
Q

Mortgagor

A

The borrower

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24
Q

Mortgagee

A

The lender

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25
What happens to the mortgage when the property is owned as a joint tenancy in a majority or Lien State?
The mortgage is treated as a lien and does not sever the JT. The mortgagor has the title and the right to possession absent foreclosure.
26
What happens to the mortgage when the property is owned as a joint tenancy in a minority or Title State?
The mortgage does not sever the JT and its converted into a Tenancy in Common; the mortgagee has title to property during the loan term.
27
What are alternative to mortgages?
Deed of Trust where it operates like a mortgage but uses the trustee to hold title for benefit of the lender. Installment Land K where the seller finances purchase, the seller retains title until buyer makes final payment on installment plan
28
Foreclosure
Foreclosure is the action initiated by creditors when they defaulted on a loan.
29
What is judicial foreclosure?
When the mortgagee must foreclose by proper judicial proceeding
30
What is the Priority of Loans during a foreclosure?
After land is sold, proceeds will be used to satisfy the debts secured by the property. Any debts secured are paid in descending order of priority. Each mortgagee is entitled to payment in full before lower ranking creditor receives any payment
31
What is Order of payment in priority of loans during a foreclosure?
1) Fees from Attys or Trustees, 2) PMM or secured senior interests, 3) secured junior interests, 4) unsecured interest. The foreclosure of junior interests will not affect senior interests but foreclosure of senior interests will destroy junior interests.
32
In a foreclosure what does an antideficiency statute do?
It will limit a lender to receiving no more than a value of a loan. Excess remaining is returned to the buyer from proceeds of foreclosure sale after paying off all debts.
33
In a foreclosure, deficiency judgment occurs....
when the property is worth less than the amount owed on an outstanding loan. The lender can sue the debtor personally for difference if: (1) there's judicial foreclosure and (2) the loan is not a PMM.
34
What is a redemption?
A redemption is when the mortgage is paid off and the property is "redeemed" from the mortgage before foreclosure stage.
35
What are the purpose of the recording acts?
Recording acts function to provide a purchaser of land with a mechanism to determine whether there is an earlier transaction re property inconsistent with own transaction. It ensures that the buyer is getting good title.
36
What if there is no recording act?
If there is no recording act then common law rule applies which says that the "first in time, first in right" applies
37
What are three types of recording acts?
1) pure race statute 2) pure notice statute 3) race notice statute
38
Pure Race Statute says
the first to record wins. This statute rewards the winner of the race to the recorder's office.
39
Pure Notice Statute Says
A subsequent BFP (one who purchases property for value without notice of prior conveyance) PREVAILS over grantee that didn't record
40
Example of Language in a pure notice statute...
"No conveyance or mortgage of Real property shall be good against subsequent purchasers FOR VALUE AND WITHOUT NOTICE unless the same be recorded according to law.."
41
Race-Notice Statute says
A subsequent BFP that records first prevails over a grantee that didn't record first
42
Example of Language in a Race-Notice statute....
"No conveyance or mortgage of real property shall be good against subsequent purchasers for VALUE AND WITHOUT NOTICE, who SHALL FIRST RECORD..."
43
Recording acts protects who?
Bona Fide Purchasers - one who takes property for value without notice of a prior conveyance and mortgagors. Notice can be actual, inquiry, or constructive notice
44
Recording acts don't protect who?
donees, heirs, and devisees because they don't take "for value"
45
What is actual notice?
when the buyer has actual subjective knowledge of a PRIOR UNRECORDED INTEREST BEFORE CLOSING
46
what is inquiry notice?
When the purchaser of the property is in possession of facts or could make an inspection of the property in which would lead a REASONABLE PERSON TO MAKE FURTHER INQUIRY
47
what is record notice or constructive notice?
occurs when a prior interest was properly recorded within the chain of title
48
What is a wild deed?
a recorded deed unconnected to the chain of title (due to filing error); it DOESNT PROVIDE CONSTRUCTIVE NOTICE
49
What is a joint tenancy?
its a form of coownership where the surviving joint tenants takes the property through a right of survivorship 4 unities are required for creation: "TTIP" 1) time - take interest at same time 2) title - must receive conveyance through same title 3) interest - must be equal interest 4) possession - equal rights in possession and need the express intent to create JT required: it requires use of clear language that JT is intended Example"to A and B in JT with right of survivorship". if property conveyed to A and B jointly without specifying JT, then TIC is presumed
50
Severance of Joint Tenancy
JT can be unilaterally severed. When one party to a JT conveys portion of JT it destroys JT and creates a TIC with respect to severed interest
51
Transfer of Interest
JT interest becomes TIC upon transfer but this doesnt destroy entire JT if 2 or more JTs remain
52
Tenancy by Entirety
marital estate similar to JT, not recognized in CP jdx such as CA. no unilateral serverance by spouses during marriage unless mutual agreement has automatic right of survivorship protected from creditors - creditor of one spouse cannot reach spouse's interest; only creditors of couple
53
How do you sever tenancy by entirety?
1) death of 1 cotenant, 2) mutual agreement of parties in writing, 3) issuance of divorce, 4) execution by joint creditor
54
Tenancy in common
concurrent estate with no right of survivorship; tenants can hold different interests in property but each is entitled to possession of whole; can transfer interest in his or her property; creation is any form of transfer taken jointly and no form of co-ownership specified, TIC presume
55
What are the 4 types of Leasehold Estates?
1) tenancy for years, 2) periodic tenancy, 3) tenancy at will and 4) tenancy at sufferance
56
Tenancy for Years
is a tenancy for a fixed period of time, it has a definite beginning and end. The tenancy automatically ends at termination date. No notice is required. Aka "term for years", "estate for years," "fixed term tenancy"
57
Periodic Tenancy
is a tenancy estate that repeats until terminated by notice. It is created expressly, impliedly or by operation of law at the end of tenancy for years if the tenant remains in possession.
58
How do you terminate a periodic tenancy?
It occurs when the tenant gives proper notice which requires sufficient time (one full period in advance) and effective date (must be at the end of the period of tenancy)
59
Tenancy at Will
Allows a tenancy to be terminated at will of either landlord or tenant and at any time without notice. It is created by express agreement. Termination is by will or operation of law (death, waste, assignment)
60
Tenancy at sufferance
is a default tenancy that arises when tenant wrongfully remains in possession after expiration of lawful tenancy
61
Hold Over Tenant
the tenant who wrongfully remains in possession after expiration of lawful tenancy. the landlord may either evict to sue or bind to new periodic tenancy
62
Duty to Deliver Possession - Majority Rule
"Actual Possession" the L must deliver physical possession to the Tenant
63
Duty to Deliver Possession - Minority Rule
"Legal Possession" the new T is responsible for any holdovers on property
64
What is the Implied Covenant of Quiet Enjoyment
The T has the right to quiet use and enjoyment of premises without interference from the landlord. It can be breached by actual eviction and constructive eviction
65
What is actual eviction
tenant is excluded from entire premises due to a holdover tenant or paramount title holder
66
What is constructive eviction
the L actions renders the property uninhabitable
67
Implied Warranty of Habitability
Applies to residential leases only. and requires that the premises must be fit for human habitation. If premises is not habitable, the tenant has option to 1) terminate the lease and move out, 2)make repairs and the deduct the cost from rent, 3)pay reduced rent, remain on premises or sue for damages
68
Retaliatory eviction is barred
tenant may not be evicted, have periodic lease terminated or have tenancy for years not renewed because the tenant has asserted that the premises are not habitable
69
Tort Liability of Landlord
LL must maintain all common areas, fix any latent defects on which the landlord has knowledge of and repairs made must be assumed nonnegligently, duty to inspect for defects in premises held open to the public
70
Tort Liability of Tenant
Tenant is treated like an owner for purposes of tort liability to third parties who come on the property
71
Co-Tenant's Rights and Duties
1) Possession - each Co-T has a right to possess the whole 2) rent from a Co-T in exclusive possession - co T in exclusive possession is not liable to the Co-T for rent 3) rent from 3rd parties - Co T leasing premises out must account for his Co-T the share of rental income 4) adverse possession - tenants may not acquire title to exclusion of Co - T through adverse possession 5) carrying costs - each T is responsible for fair share of taxes, interest etc 6) Repairs - Co T may seek contribution for reasonable repairs but must inform co-T before making repairs 7) Improvements - there is no right to contribution for improvements but a Co T is entitled to credit for increase value from improvement 8) waste - co-T can bring an action for waste against another co-T during life of tenancy 9) partition - co T may bring action for partition (JT or TIC) or seek forced sale and apportion proceeds
72
Tenant Duties
1) Duty to Repair - T must maintain premises and ordinary repairs; a residential T's duty to repair is slightly mitigated by implied warranty of habitability 2) Duty no to commit waste - voluntary waste where there is an overt harmful act (removing fixture), permissive waste such as neglect of the property and ameriolative waste such as alterations increasing property value 3) Duty not to use premises for illegal purposes - a LL may terminate lease and evict the tenant 4) Duty to Pay Rent - contained in every lease
73
Landlord Remedies
1) No Self Help - a LL cannot change the locks or forcibly remove the T belongings 2) If T Retains Possession of the Property - LL May file for notice of eviction or continue lease and sue for rent due 3) If T abandons the premises - LL may 1) surrender - treat the T abandonment as T surrendering and accept it and release the T from the lease 2) Ignore (minority rule) - the LL may hold the T liable for unpaid rent 3) Re-Let (Majority Rule) - the LL may lease premises to new tenants and hold breaching T liable for any lossess
74
Is Retaliatory Eviction allowed?
No, a LL is prohibited from retaliatory evicting a tenant who lawfully reports housing code violations
75
What is the General Rule on Assignments and Subleases?
Absent prohibition of assignments and subleases a Tenant is FREE to assign or sublease the premises
76
Assignment
is a complete transfer of the tenant's interest | eg. 5 year term, T use 1 and assigned 4 years left
77
When a Tenant assign's or transfer his or her entire interest remaining on the lease term, what happens with respect to the New Tenant liability and Old Tenant liability?
New Tenant is personally liable to the LL for rent because there is privity of estate. Old Tenant is liable to the landlord for the rent because there is privity of Contract unless the LL specifically releases the old tenant by a novation
78
Sublease
is the transfer of anything less than the entire interest remaining on the lease term.
79
When a Tenant subleases his or her partial interest on the lease term, what happens with respect to New Tenant liability and old tenant liability?
New Tenant is not personally liable to the landlord for the rent because a sublease does not provide privity of estate Old tenant is liable to the LL for the rent because there is privity of K
80
What is an EASEMENT?
An easement is the right to the use the land of another. You don't own or possess the land, its a nonpossessory interest.
81
An Easement can be affirmative or negative, what's the difference?
Affirmative Easement - entitle the holder to do something on another's land; entitles the holder to use the servient estate (eg. use of the driveway) Negative Easement - prevents the landowner from doing something on his own land. Not common (Eg. Owner cannot develop land in a way that blocks neighbor's view). limited to 1) light, 2) air, 3) lateral and subjacent support 4) artificial stream; can only be created by express grant or express reservation
82
What are two types of easements?
Easement Appurtenant and Easement In gross
83
Easement Appurtenant
one that provides benefits to an adjacent property. It creates a 1) dominant estate which is the benefited parcel meaning that the possessor is benefited in his physical use and enjoyment of the land and 2) servient estate which is the burdened parcel meaning that it is the parcel that provides benefits to the dominant estate
84
Easement in Gross
An easement that is personal to the easement holder (eg. easement to give access to fish in someone's pond; access to lake
85
What are the 5 ways an easement can be created?
1) express grant 2) express reservation, 3) easement by implication: implied from existing use, 4) easement by necessity and 5) easement by prescription
86
Express Grant
created by a written instrument in which the servient estate owner gives easement to owner of dominant estate; expressly created in writing (SoF applies)
87
Express Reservation
easement created where the grantor conveys title to land but reserves the right to continue using the land for designated purpose
88
Easement by Implication: Implied from Existing Use
Easement legally implied based on prior use
89
Easement by Necessity
Can arise if access to or from the property is impossible without easement
90
Easement by Prescription
is the process of acquiring similar to adverse possession 1) continuous, 2) open and notorious, 3) actual use (not exclusive) 4) hostile
91
Termination of easements
1) estoppel - servient owner materially changes position in reasonable reliance on easement holder assurances that the easement will no longer be enforced 2) necessity - easement by necessity ends when the necessity ends 3) destruction of servient land - so long as it is not willful destruction by the owner 4) condemnation of servient estate by eminent domain 5) release in writing by easement holder to servient owner 6) abandonment in action - easement holder demonstrates by action the intent to never use the easement again . words alone not sufficient 7) merger doctrine - easement gone when title to both dominant and servient parcels become vested in same person 8) prescription - easement can be terminated by employing the principals of prescription where there is an adverse continuous interruption of the easement for the statutory period
92
What is a License?
Privilege or permission to go into the land of another. Its not an interest in the land and can be created orally. Revocable at will of the licensor unless couple with interest and interest expired
93
What is a Profit?
aka profit a prendre; similar to an easement where it is a nonpossessory interest in land. the Holder of profit is entitled to take minerals, timber, oil or game from real property
94
What is a Real Covenant?
is a written promise by the landowner either to do something or refrain from doing something on the land. Real covenant "runs with the land" meaning that subsequent owners may be burdened or enforce it.
95
How can a real covenant be terminated?
written release, merger of benefited and burdened estate or condemnation
96
What is the remedy for a breach of covenant?
Damages
97
What is the remedy for breach of equitable servitude?
Injunction
98
General Rule for Real Covenants:
Real covenants may be binding on successors in interest
99
Requirement for Burdens of Covenant to Run W/ Land
1) Writing of Original Covenant 2) Intent of Parties to Bind Successors in Interest 3) Horizontal Privity must exist 4) Vertical Privity must exist 5) Notice - successor had not when took interest
100
Requirement for Benefit to Run with Land
1) Writing 2) Intent of Parties to Benefit to Run with Land 3) Touches and Concern Land 4) Vertical Privity
101
What is an Equitable Servitude?
Aka restrictive covenants; they are restrictions on how land may be used. Similar to real covenants but have no privity requirement. (Eg. Property may be used for residential purpose only or painted particularly shade of beige) Difference between covenant and Equitable servitude is the remedy sought. Remedy for breach of equitable servitude is injunction.
102
How are equitable servitudes created?
created by covenants contained in a written document (writing, intent, notice and touches and concern land)
103
Equitable Servitudes will "run with the land" and bind successors when?
1) writing 2) intent that the promise apply to successors to the property 3) touch and concern the land 4) notice required 5) no horizontal or vertical privity required
104
Reciprocal Negative Servitudes
equitable servitudes can be implied from common scheme for development of residential subdivision
105
Zoning
pursuant to the police powers, the 10th amendment allows states to enact statutes to control land for protection of health, safety, comfort, morals and general welfare of citizens
106
Standards for zoning
must be reasonably related to public welfare, not too restrictive, nor arbitrary and not racially discriminatory
107
Types of zoning ordinances
1) Cumulative 2) noncumulative
108
What is cumulative zoning ordinance
it creates a hierarchy of uses of land; land zoned for a particular use may be used for the stated purposed or for any higher use (eg. house could be built in an industrial zone but a factory could not be built in a residential zone)
109
what is noncumulative zoning ordinance
land may only be used for the purpose for which it is zoned
110
what is a variance?
a property owner can seek a variance (waiver) from a zoning regulation if he can show unnecessary hardship due to the unique features of the property or practical difficulty. The harm to the neighboring areas also will be considered
111
What is nonconforming use?
is once lawful existing use for property now deemed nonconforming under new zoning laws. The government cannot eliminate the use all at once without just compensation.
112
What is amortization?
is when some statute allows the termination of nonconforming use of property where the govt may give amortization where govt pays landowner over period of time until the landowner recoups value of nonconforming use.

MBE (8 decks)

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