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Real Property Flashcards

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1
Q

what does “for the purpose of” do for estates?

A

Nothing

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2
Q

Fee Simple Absolute

A

Present Estate, Runs Forever

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3
Q

What estate is created unless language shows clear intent to create another estate?

A

Fee Simple Absolute is the presumed estate

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4
Q

Alienation (right to transfer) and Fee Simple Absolute

A

Cannot restrict alienation, if restricted condition is ignored

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5
Q

Conditions on Fee Simple Absolute

A

Are permitted

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6
Q

RIght of First Refusal on Fee Simple Absolute

A

Are Permitted

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7
Q

Life Estate

A

Present estate, Measured by life, not time

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8
Q

Life Estate and Alienation

A

Permitted to restrict right to transfer

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9
Q

How are life estates implied?

A

To A after Death of B, B has implied life estate

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10
Q

Life Estaet Pur Autre Vie

A

Measuring life is in someone else

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11
Q

Life Tenant’s main duty

A

Maintain the Estate, Normal use of land in present condition

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12
Q

How is a life tenant guilty of waste?

A

If he uses the land in a way thats less or more then the normal use of the land

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13
Q

Voluntary Waste

A

affirmative use beyond the right of maintenance causing harm to premises/ held liable to holder of future interest

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14
Q

Open Mines Doctrine

A

can deplete natural resources if they were being depleted before

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15
Q

Ameliorative Waste

A

Altering property but increasing value of it

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16
Q

Changed Conditions on Life Tenant Property

A

If changed conditions have made the property relatively worthless in it’s current use, the life tenant can tear it down without liability to the holder of the future interest

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17
Q

Permissive Waste

A

Failing to Maintain

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18
Q

To avoid Permissive Waste Life Tenant must

A

Repair, but not replace/ Pay taxes on property/ Pay interest on mortgage (duture interest holder pays principle)

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19
Q

Life Tenant Limitations on Liability

A

Limited to amount of income received from land or if personally using property, reasonable rental value of the land

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20
Q

Class Gifts

A

Not identifiable group of people

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21
Q

Once established class stays open for:

A

People who later meet definition

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22
Q

If members of class predecease testator

A

their gift lapses

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23
Q

Rule Of Convenience for Class Gifts

A

Class closes when anyone in the class is entitled to distribution, rule of construction not law, only if grantor did not state otherwise

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24
Q

When does a future interest exist?

A

It exist now but possession will not come until later, if ever

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25
Q

Future Interest Retained by Grantor

A

Reversion, Possibility of Reverter, RIght of Reentry

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26
Q

Future Interest given to Grantee

A

Remainder, Executory iInterest

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27
Q

Reversion

A

Interest kept by Grantor when Grantor gives less then duration estate grantor had/ NO RAP

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28
Q

Possibility of Reverter

A

Grantor gives fee simple determinable

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29
Q

Fee Simple Determinable

A

Key Words: So long as, until, while, during/ Ends automatically when condition happens

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30
Q

Right of Reentry (power of termination)

A

When grantor gives fee simple on a condition subsequent/ must have express language reserving right of reentry, ambiguous language will be read in a way that there is no forfeiture

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31
Q

Fee Simple Condition Subsequent

A

Title does not automatically go back to Grantor unless Grantor exercises right
Key Words: Provided However

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32
Q

Remiander

A

Possessory if at all upon natural expiration of estates before them/ Grantee interest

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33
Q

Vested Remainder

A

Nothing stands in the way of person becoming possessory on the expiration of estate before them, no condition needs to happen

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34
Q

Vested Remainder Subject to Open (Subject to Partial Divestment)

A

Class where members are not yet known and class remains open to all of future people who qualify as members of the class/ Subject to RAP

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35
Q

Contingent Remainder

A

Something has to happen or be known before remainder can become possessory/ Subject to RAP

  • Condition must be satisfied before grantee can be certain (ex: age)
  • Contingent one grantee being born (ex: To A’s children, A has no children at time_
  • If can’t identify person by name, contingent on identifying person (ex: widow)
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36
Q

Executory Interest (Subject to total divestment, subject to executory limitation, subject to executory interest )

A

Cuts short estate before it (not on natural expiration)/ RAP

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37
Q

Shifting Executory Interest

A

Taking title from one grantee to another grantee

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38
Q

Springing Executory Interest

A

Taking title from grantor and giving it to grantee

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39
Q

Rule Against Perpetutities

A

No interest unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest

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40
Q

What is subject to Rule Against Perpetutities?

A

Contingent Remainders, Executory Interest, Vested Remainders subject to open, Options and Rights of First Refusals

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41
Q

Exception to Rule Against Perpetuties

A

Charity to Charity

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42
Q

Look Out for RAP Hypos

A
  • Gift over to class following open class: Watch for facts where class is open and gift contingent on class member reaching a certain age, anyone is capable of having kids
  • Unborn Spouse: where gift does not vest until widow/widower dies
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43
Q

Joint Tenancies

A

Right of Survivovrship, Right to Partition

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44
Q

Joint Tenancies and Texas

A

NONE right of survivorship doen by contract

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45
Q

Creation of Joint Tenancies

A

Time, Title, Interest, Possession

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46
Q

Joint Tenant/ Title

A

Joint Tenants must take by the same instrument

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47
Q

Joint Tenant/ Interest

A

All joint tenants must take the same kind and same amount of interest

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48
Q

Joint Tenant/ Time

A

All interest must have vested on same day

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49
Q

Joint Tenant/ Possession

A

All must have identical rights of possession

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50
Q

Joint Tenant Language

A

Must have clear language to created, failure results in Tenants in Common
“Joint Tenants”, “as joint tenants with right of survivorship” “in joint tenancy with right of survivorship”

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51
Q

Destruction of Joint Tenancy

A
  1. Conveyance by one of Joint Tenants
  2. Mortgage in Title Theory
  3. Contract of sale
  4. Creditors Sale
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52
Q

Conveyance by one of Joint Tenants

A

Destroys Joint Tenancy of sellers interest, buyer takes as tenant in common
- Lease is ok

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53
Q

Title Theory

A

Minority/ Title passes from mortgagor to mortgagee

- Mortgagee entitled to possession upon demand at any time, can take possession so long as mortgagor defaults

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54
Q

Lien Theory

A

Majority/ Lien attaches to title, title does not transfer

- Mortgage cannot take possession of the land before foreclosure unless mortgagee consents or abandons land

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55
Q

Joint Tenant and Contract of Sale

A

Severs when you contract to sell the land, not upon actual sale

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56
Q

Creditors Sale and Joint Tenancy

A

Judgement lien not enough, has to be actual judicial sale

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57
Q

Tenancies in Common

A

Default Tenancy (if Joint tenancy not properly created)

  • Right to partition, No right to survivorship
  • All tenants must have equal rights of possession
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58
Q

Tenancy by The Entirety

A

Created by Husband and Wife

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59
Q

Rights and Duties among co-tenants

A

Possession, Accountability, Contribution

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60
Q

Co-tenants and Possession

A

No Exclusive right of possession, right to possess all the property Consistent with other co-tenants right to possess

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61
Q

Co-tenants and Accountability

A
  • Do not have to account for share of profits
  • Will have to account if there is an agreement to share, lease of property to a third party, depletion of natural resources
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62
Q

Co-tenants and Ouster

A

Will have to account to co-tenant if keeping co-tenant off the property or claiming right of exclusive possession

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63
Q

Co-tenants and Contribution

A

Right of co-tenant to force others to pay for expenditure

  • Available for mortgage (if everyone has signed), governmentally imposes obligations
  • None for improvements or nonnessary repairs (can recoup in sale or partition)
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64
Q

Tenancy for Years

A

Any estate for a fixed period of time, no matter how short

- SOF: Any lease for over 1 year has to be in writing (1 year exact ok)

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65
Q

Periodic Tenancy

A

Ongoing, continuing, repetitive until one party gives valid notice

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66
Q

Ways to Create Periodic Tenancy

A
  1. Express agreement
  2. Implication (lease silent on duration)
  3. Operation of Law:
    - Oral Lease violating statute of frauds, determined by period covered in rent check
    - Holdover Tenant: Tenant gives rent after expiration of lease and landlord accepts it
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67
Q

Terminating a Periodic Tenancy

A

2 Requirements

  1. Proper Notice: week-week, month-month, year-6 months
  2. Effective day of termination: Last day of period only
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68
Q

Tenancy at Will

A

No period of duration, either party terminates at any time without notice

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69
Q

Terminating a Tenancy at Will

A

Death of either party, waste by tenant of any kind, assignment by tenant, transfer of title by landlord, lease by landlord to someone else

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70
Q

Tenancy at Sufferance

A

Holdover Tenant/ Landlords sole option (not T)
- Hold tenant as wrongdoing trespasser and sue to throw him off and recover damages for holdover
- Impose a new periodic tenancy
- Residential: always month to month, prior lease doesn’t matter
- Commercial: if old lease for year or more new lease is year to year
If less then year measured by rent period of old tenancy
- Can only imposes if reasonable holdover (1 hour probably not)
Raised Rent: only if landlord tells tenant of higher rent before expiration of lease

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71
Q

Tenant Duties

A

If Lease is silent: pay rent and no waste
If Lease says tenant must repair and maintain: Tenant must repair wear and tear unless wear and tear is specifically excluded
- Tenant can terminate the lease if premises are destroyed and tenant not at fault

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72
Q

Landlord Remedies if Tenant doesn’t pay rent

A

Landlord can sure for damages and sue to throw tenant out

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73
Q

Landlord Remedies if Tenant unjustifiably abandons leasehold

A

2 choices:

  • Treat abandonment as offer to surrender, accept offer by retaking premises, ending tenants liability as of that date
  • Rent premises and hold tenant liable for deficiency
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74
Q

Landlord Duties- When lease begins

A
  • Given tenant actual possession when lease begins

- If can’t give actual possession landlord has breached

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75
Q

Landlord Duties- Implied Covenant of Habitability MBE

A

Must provide property that is reasonably suited for residential use
- If landlord breaches tenant can either move out and end lease or stay and sue for damages

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76
Q

Implied Covenant of Habitability in TEXAS

A

NO Implied Habitability

- Statutorily obligated that landlord repairs conditions that materially affect physical health or safety

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77
Q

Implied Warranty of Suitability in TEXAS

A

Commercial only, covers latent defects

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78
Q

Implied Covenant of Quite Enjoyment: In every lease, 3 ways to breach

A
  • Total Eviction: terminated lease, ending tenants obligation to pay rent
    • Partial Eviction:
  • Landlord- Stay and pay no rent, doesn’t terminate lease
  • Person other then landlord: Tenants rent is apportioned to reflect amount taken away
  • Constructive Eviction: Where landlord fails to provide service landlord obligated to provide, premise uninhabitable

To not pay rent 3 requirements: Landlord has to do it, must be substantial interference with covenant of quite enjoyment, must be abandonment of premises within a reasonable time after breach

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79
Q

Assignment

A

Tenant transfers everything

- Doesn’t matter if its called something else if this is what its doing

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80
Q

Sublease

A

Tenant transfers, holding a portion back

- Doesn’t matter if its called something else if this is what its doing

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81
Q

TEXAS: Sublease and Assign

A

No right to assign or sublet unless landlord gives permission

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82
Q

MBE: Sublease and Assign

A

Tenants can assign or sublet unless lease says otherwise

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83
Q

Touch and concern the Land

A

If performance of covenant makes land more valuable or useful

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84
Q

Assignments/ Privity of Estate

A

between landlord and present tenant or tenant and assigned landlord

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85
Q

Assignments/ Privity of Contract

A

where there is agreement between parties or where assignee expressly assumes obligations under lease

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86
Q

Assigned Tenant

A

Will be liable for rent and covenants that touch and concern the land

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87
Q

Subleassor and Sublessee

A

Subleassor is deemed to have kept the estate

Sublessee is not liable to landlord (no privity of contract or privity of estate)

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88
Q

Non-assingment or nonsublease Clause

A
  • Enforceable, Narrowly construed stating one does not prohibit against the other
    If landlord gives permission, clause is waived for all time unless landlord states otherwise at time of giving permission
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89
Q

Landlord Tort Liability Generally

A

No duty to tenant or tenants inviteess

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90
Q

Exceptions to landlords no duty rule

A

latent defects, short tem lease of furnished dwelling, common areas under landlord control, negligent repair, public use exception

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91
Q

Landlord Liability with Latent Defects

A

duty to disclose (not repair) which landlord knows of or has reason to know of

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92
Q

Landlord Liability with Short Term Lease of Furnished Dwelling

A

Short term: 3 months or less

liable for defects even if landlord doesn’t know of has no reason to know of them

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93
Q

Landlord liability and Negligent Repair

A

Liable even if all due care was used

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94
Q

Landlord liability and Public Use

A

Landlord must know or should know of major defects, landlord must know or should know tenant will not fix defect, landlord must know or should know public will be using premises

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95
Q

TEXAS and landlord liability

A

Landlord has statutory duty to repair, landlord liable in tort if injured person is in the class of person protected by the statute

96
Q

Tenants Tort Liability

A

Liable to third party invitees for negligent failure to correct dangerous conditions on the premises regardless of whether landlord may be contractually liable or not

97
Q

Fixtures

A

If attached item becomes a fixture neither side can remove it

98
Q

How to tell if it’s a fixture

A

Look to intent (or agreement, agreement controls)

99
Q

Intent Factors and Fixtures

A

Degree of attachment, general custom, degree of harm to premises if removed, trade fixtures

  • Tenants favored if it can be removed without substantial harm, no intent
  • Chattel used for trade or business is not a fixture
  • Washers and Dryers are not fixtures
100
Q

When must chattel be removed?

A

Chattel must be removed before end of lease or before closing, stays if not done even if could have been removed before

101
Q

Easements

A

nonpossessory interest in land involving a right of use

102
Q

Easement Appurtenant

A

directly benefits use and enjoyment of specific land

103
Q

Easement Appurtenant/ Burdened Property

A

Servient Estate

104
Q

Easement Appurtenant/ Benefited Property

A

Dominant Property

105
Q

Creation of Easement

A
  1. Express Agreement
  2. Easements by Implication
  3. Easements by Prescription
106
Q

Creation of Easement: Express Agreement

A
  • Grant to someone or Reserve when land sold
  • Must comply with statute of frauds or deed formalities
  • In writing, signed by holder of servient estate, executed like a deed
  • Easements of less then a year can be oral
107
Q

Creation of Easements: Easements by Implication

A
  • Landlocked property, servient estate owner can choose location if reasonable
  • Previous use by common owner
  • None for light and air (unless by express_
108
Q

Creation of Easements: Easement by Prescription

A

Like adverse possession (MBE 20/TEXAS 10)

  • Must be adverse to the owner, use must be continuous and uninterrupted for the statutory period, visible and notorious, without owners permission
  • Seasonal use is ok if appropriate under the circumstances
  • Can use with the common owner (doesn’t have to be exclusive like adverse possession)
109
Q

Transfer of Easement Appurtenant/ Benefit

A

Goes automatically with dominant estate, never need to be mentioned in deed again, runs with land

110
Q

Transfer of Easement Appurtenant/ Burden

A

Binding on subsequent holder of servient estate if they had notice, even if not in deed

111
Q

Transfers of Easement In Gross Commercial MBE

A

Can always be transferred

112
Q

Transfers of Easement In Gross Personal MBE

A

Cannot be transferred

113
Q

Transfers of Easement TEXAS

A

Can never be transferred unless language of easement says so.
- Exceptions: Conservation Easements (protect land in natural state, historical structures )

114
Q

Use of Easements (silent presumptions)

A
  • Perpetual (last forever unless stated otherwise)
  • Use presumed is that of reasonable development of dominant estate
    • Use reasonably contemplated by the parties when easement was created
  • Can only be used to benefit dominant estate, not other property
  • Excessive use: Remedy is to enjoin use, not terminate easement
115
Q

Repair of Easement

A
  • Holder of easement obligated to make necessary repairs (unless easement says otherwise)
  • Holder of easement can always go on servient estate to repair easement, even if not stated in grant
116
Q

Termination of Easement

A
  1. Unity of Ownership/Merger
  2. Valid Release
  3. Abandonment
  4. Termination by Estoppel
  5. Termination by Prescription
  6. End of Necessity
117
Q

Termination of Easement and unity of ownership/merger

A

Both dominant and servient estates come together in same owner, must own in the same manner
- Once terminated it never revives unless created again

118
Q

Termination of Easement and Valid Release

A

complies with Statute of Frauds or Deed formalities

119
Q

Termination of Easement and Abandonment

A

Intent to abandon must be manifested, some physical act that would show intent to abandoned
- Telling someone is not enough, Nonuse no matter how long is not enough

120
Q

Termination of Easement by Estoppel

A

2 elements:

  • Must be a representation of relinquishment by holder of dominant estate
  • Change of position in reliance by holder of the servient estate
121
Q

Termination of Easement by Prescription

A

Owner of servient estate stops the use of easement, must keep it stopped for statutory period

122
Q

Termination of Easement and End of Necessity

A

If necessity that created easement ceases to exist

123
Q

Licenses

A

Limited privilege of use, not property interest
- Revocable at will of Licensor (may have to pay contract damages if wrongful)
Ex: Tickets

124
Q

Irrevocable Licenses (Easement by Estoppel)

A

License plus money spent on property furthering the license, then just as good as easement, enforced under principles of estoppel

125
Q

Profit Easement

A

Right to go onto land and take a natural resource away

126
Q

Restrictive Covenants

A

Right to restrict someone elses use of their land

- Covenant at law or Equitable Servitude?

127
Q

Covenant at law

A

When you want Money Damages
4 requirements for Covenant to Run With Land
1. Intent that it will run with land
2. Notice to the person again whom enforcement is sought
3. Covenants must touch and concern land
4. Privity
- Horizontal Privity: Original Parties to Covenant
- Vertical Privity: Those who subsequently obtain the property subject to the covenant and the original party from whom they got the property (take full estate)

128
Q

Privity Needed to make Burden of covenant run with land

A

Horizontal and Vertical
- Usually Successor in Interest is Defendant
( Doesn’t apply to me)

129
Q

Privity needed to make Benefit of covenant run with land

A

Vertical only
- Usually Successor in interest is Plaintiff
( wants to enforce covenant)

130
Q

Equitable Servitude

A

When you want and Injunction
3 Requirements to enforce
1. Intent that restriction be enforceable by successors in interest
2. Notice to subsequent purchaser
3. Restriction must touch and concern the land

131
Q

Subdivisions Covenants

A

Any lot owner has right to enforce
Requirements-
1. Intent to create a servitude on all the land (building plan)
2. Notice
- Actual Notice
- Record Notice: Restriction is in chain of title (records at court house)
- Inquiry Notice: Held to know anything a reasonable inquire might have revealed

132
Q

Record Notice

A

Restriction is in chain of title (records at court house)

133
Q

Inquiry Notice

A

Held to know anything a reasonable inquire might have revealed

134
Q

Unclean Hands / Equitable Defenses to Enforcement

A

Plaintiff Did same thing

135
Q

Acquiescence / Equitable Defenses to Enforcement

A

Plaintiff let neighbor on the other side do same thing

136
Q

Latched /Equitable Defenses to Enforcement

A

Plaintiff sat by and only complained when project was finished

137
Q

Estoppel / Equitable Defenses to Enforcement

A

Plaintiff said she did not mind before Defendant did it

138
Q

Termination of Neighborhood Covenants

A
  • By release or by unity

- Changed conditions: All or nothing, all lots must be effected to void

139
Q

Adverse Possession

A 
HELUVA
Hostile 
Exclusive 
Lasting (statuary period)
Uninterrupted
Visible
Actual Possession
140
Q

Adverse Possession - Hostile

A

Being on property with no right to be there

141
Q

Adverse Possession - Exclusive

A

Must be excluding other from possessing Property

142
Q

Adverse Possession- Statutory Period MBE

A

20 years

143
Q

Adverse Possession- Statutory Period Texas: Color of title with narrow specified defects

A

3 years

144
Q

Adverse Possession- Statutory Period Texas: Trespasser

A

10 years, limited to 160 acres unless a larger area is fenced in

145
Q

Adverse Possession- Statutory Period Texas: Color of title, paid taxes, true owner has disability

A

25 years

146
Q

Adverse Possession- Uninterrupted

A

Continuous use an ordinary owner would make

- In the winter, famers wouldn’t farm

147
Q

Adverse Possession- Visible

A

Out in the open, open and notorious

148
Q

Adverse Possession - Actual

A

Actually posses land (exception for leasing and constructive Possession)

149
Q

Constructive Adverse Possession

A

if someone goes onto property under a color of title to a larger tract but only actually possess a portion of the larger until, you can constructively adverse possess title to rest of property
- Property must be unitary

150
Q

Adverse Possession against Concurrent Owners

A

Possessor excludes other co-tenants from possession and the statute runs, absence doesn’t start clock, exclusion

151
Q

Adverse Possession and Life Estate plus future interest

A

Clock does not start to run against holder of future interest until life tenant dies
- if you Adverse Possess life estate clock starts over when they die

152
Q

Adverse Possession and Fee Simple Determinable

A

Happening of conditions starts clock

153
Q

Adverse Possession and Condition Subsequent

A

Won’t start until grantor exercises right

154
Q

Tacking

A

You can tack but periods must pass directly from one adverse possessor to another, no gaps
- Can tack periods of true ownership

155
Q

Disabilities and Adverse Possession, Texas

A

Being a minor, being in armed forces at time of war

- Max Tolling: 25 years

156
Q

Disabilities and Adverse Possession MBE

A

Being a minor, Being in jail, Being insane

157
Q

Disability and Adverse Possession

A

If owner under disability clock doesn’t start until it’s lifted

  • If disability arises after AP, doesn’t count it’s intervening
  • No tacking of disabilities
158
Q

Conveyancing

A
  1. Contract of Sale

2. Deed (closing)

159
Q

Contract of Sale and Statute of Frauds

A

any contract of sale of an interest in property must be in writing and signed by the party to be charged (who is sued)

160
Q

Contract of Sale writing must contain

A

Description of property, name of the parties, the price

161
Q

Oral Contracts for Sale of Land

A

Ok if part performance has occurred. Contract must be clear and certain
- Acts of part performance must clearly prove up contract
Ex: Claimant in possession and paying full purchase price

162
Q

Risk of Loss and Contract for Sale MBE

A

Title in buyer for all practical purposes once contract is signed
- Only applies if seller is not at fault for damage or destruction

163
Q

Risk of Loss and Contract for Sale Texas

A

Risk of loss is on person in possession

164
Q

Death of seller before closing

A

No effect

Seller dies, seller estate closes and sellers interest is personal property

165
Q

Death of buyer before closing

A

No Effect

Buyer dies, buyer estate closes and buyers interest is real property

166
Q

Marketable Title

A

Implied in every land sale contract, seller give to buyer at closing
- Not perfect, reasonable person would accept, no risk of litigation
- Minor defects are ok (inch vs. foot)
3 things: Proof of title, title free of encumbrances, valid legal title day of closing

167
Q

Marketable Title- Proof of Title

A

abstract or copy of all deeds recorded in chain of title

168
Q

Marketable Title- Free of Encumbrances

A

Nothing that is not mentioned in contract

  • No easements, restrictive covenants, options to purchase, mortgages
  • Zoning: only if it’s in volition of zoning ordinance, housing/building codes ok
  • Mortgage/Fines/Taxes: If they are to be paid off from proceeds of sale its ok
169
Q

Marketable Title- Valide legal title day of closing

A

if day before it’s ok, seller has until day of closing

170
Q

Remedies for Buyer for Unmarketable Title

A
  • Buyer must notify seller of title defects, seller has reasonable time to cure even if it postpones closing
  • If Buyer accepts deed without curing problems no recourse for contract, would have to sue under deed
    Not Corrected: 3 remedies
    1. Recession
    2. Damages
    3. Specific Performance: Take what seller can give and price gets lowered to reflect
171
Q

Time of Performance in Land Sale Contract

A

Time is not of the essence unless specified

  • If not of essence- performance must be tendered within a reasonable time after the date for closing set in contract (2 months ok)
  • If time is of the essence: party who breached cannot enforce contract
172
Q

Remedies for Breach of Sales Contract

A
  • Specific Performance: available to buyer and seller
  • Damages: Difference between contract price and value of land on day of breach
  • Liquidated Damages: buyers deposit can be forfeited as long as its not more then 10% of sales price
173
Q

Defects on Property

A

Usually buyer stuck with property (Caveat emptor)
Exceptions:
- Seller must disclose serious defects seller knows or and are not obvious to buyer
- Cannot conceal defects
- Implied warranty of Fitness/Merchantability for new homes sold by a builder-seller

174
Q

Deed

A

Once contract accepted merges with deed and contract is destroyed. All contract provisions lost unless they are included in deed or contracted to survive

  • No consideration needed for deed (unlike sale of land)
  • Acceptance of deed is presumed unless facts show otherwise
175
Q

To pass legal title from seller to buyer

A

2 requirements: Execution and Delivery of Deed

176
Q

Passing Legal Title - Execution

A
  • Deeds subject to Statute of Frauds, seller must sign
  • Description of land doesn’t need to be specific but you have to be able to identify
    • If not then deed is void for vagueness and nothing transfers
    • Minor discrepancy is fine if property can still be located
177
Q

Order of controlling descriptions in deed

A

Metes and bounds, Natural Monuments, Artificial Monuments, Course Measurements prevail over distance measurements, general descriptions such as name or quantity

178
Q

Passing Legal Title- Delivery of Deed

A

Question of intent to pass title, not physical delivery

  • Presumption: Recording deed raises presumption of delivery
  • To show intent of grantor can use parol evidence (statements, conduct)
179
Q

Conditional Delivery when Condition is in Deed

A

Valid delivery of futre interest

180
Q

Conditional Delivery, Oral Condition

A

Condition ignored

181
Q

Conditional Delivery, Conditioned on paying purchase price

A

valid if party delivers to third party in escrow with instructions (oral ok) to deliver to grantee when condition is satisfied
- Grantor can’t get deed back from escrow

182
Q

Quit Claim Deed

A

Grantee gets whatever grantor owns, grantor promises nothing

183
Q

General Warranty Deed

A

Grantor makes promises (6 traditional)
Present: Covenants of siesin, covenants of the right to convey, covenants against encumbrances
Future: Covenants for quite enjoyment, covenant of warranty, Covenants of further assurance

184
Q

Present Covenants Grantor makes in general Warranty Deed

A
  • Grantee can sue immediately
    Covenants of Siesin/ Covenants of the Right to Convey: Represent promise of seller that seller has title and possession and can validly convey both
    Covenants against Encumbrances: Grantor promises no easements, restrictive covenants, liens etc
185
Q

Future Covenants Grantor makes in general warranty deed

A
  • Not breached until grantee is disturbed in possession
    Covenants for Quiet Enjoyment and Covenant of Warranty: Promise of seller that seller will protect buyer against anyone who later shows up and claims title
    Covenants of Further Assurance: If seller forgets to do something to pass title, seller promises to do whatever’s necessary
186
Q

Damages for breach of covenant

A

Limited to purchase price reseived by warrantor

187
Q

Estoppel by Deed/ After-Acquired Title

A

If you deed property you don’t own but later get title to property, have to give proper title to person you sold it to
- Implied covenant that title would transfer to grantee

188
Q

Deed to a Dead person

A

is invalid but can still be enforced by seller or buyers estate if new deed is made out

189
Q

Recording of Interest- Common Law

A

First in time, First in right

190
Q

Recording of Interest. Who it protects and who it doesn’t

A

Protects subsequent mortgagees, does not protect judgment creditors or judgement liens

191
Q

Texas Recording Interest

A

Deed can only be recorded it it’s signed by grantor and signature is notarized or
If deed is signed by grantor and at least two witnesses

192
Q

Texas Recording Interest Act

A

Notice

193
Q

Notice Act

A

Protect subsequent grantees who are Bona Fide Purchasers those who give value and who take without notice of the earlier transaction
- Recording irrelevant except might give notice

194
Q

Race-Notice Act

A

Protects subsequent grantees who are bona fide purchasers for value who take without notice and are first to record

195
Q

Race Act

A

Notice is irrelevant, whoever records first wins, no need to be BFP

196
Q

Bona Fide Purchaser

A

Takes for value without notice

  • Value: Can be low price as long as no fraud, anything out of pocket (except $1)
  • One who is heir, donee or devisee cannot be BFP, will be defeated by prior convey
197
Q

Bona Fide Purchaser Shelter Rule

A

ANYONE can take shelter under rights of Bona Fide Purchaser

- You take from BFP you can get shelter from them

198
Q

Actual Conveyance and Shelter Ryle

A

Even if you knew about prior conveyance, shelter rule will protect you if you take from a Bona Fide Purchaser

199
Q

Record Notice and Deeds

A

Not enough to be recorded, needs to be in chain of title

- Title Search/ If deeds recorded outside chain of title (late/early) won’t give notice

200
Q

Inquiry Notice and Deeds

A

Reading of deed discloses unrecorded transaction or fault

- to go out to land and if you would have examined land would have shown someone on land under unrecorded claim of right

201
Q

Mortgage

A

Given by debtor )mortgagor) to creditor (mortgagee)

202
Q

Default in Mortgage

A

Sheriff sells land at court-ordered foreclosure in default

203
Q

Absolute Deed/ Equitable Mortgage

A

Separate Promise of re conveyance

204
Q

Sale/Lease back with option to repurchase

A

Treated like a mortgage must be foreclosed on like mortgage

205
Q

Deed of Trust

A

Given by debtor to third party trustee, holds it until paid off
- If not paid: trusee either goes to court to order sale or trustee may sell at trustess own private auction

206
Q

Installment Land Contract (texas: called contract for deed)

A

Debtor signs contract promising to make payment and seller keeps title until loan paid off

207
Q

Equity of Redemption

A

before foreclosure sale debtor can redeem

- Pay amount owed plus interest, unless mortgage has acceleration clause
- Cannot be waived in mortgage/deed (Clogging), prohibited  - Can be waived later for separate consideration
208
Q

Clogging

A

Cannot waive equity of redemption in deed, can be waived later for separate consideration

209
Q

Foreclosure has to take place at

A

Public Auction Sale

210
Q

Mortgage Priorities

A

First in time, first in right (unless recording statute)

  • Exceptions: Changed by contract, Purchase money mortgages (first), PMM Seller over third party lender
  • If senior interest does anything in increased, lose priority to that extent
211
Q

Mortgage Priorities Texas

A

Additional
Mechanics/Materialmens lien: protects workers and suppliers
- Related back to commencement of construction, not date of recording
- Priority over mortgages if perfected by:
-Filing with county clerk where property is located no later than 15 day of 4 calendar month after debt of indebtness,
- Affidavit must list amount of claim, names and addresses of relevant people, general statement of work done and materials furnished,
- Affidavit must give legal description of property to be liened,
- Copy of affidavit must be sent by certified or registered mail to owner within 5 days of filing

212
Q

Junior Interests

A

Wiped out by foreclosure

  • junior parties necessary parties to foreclosure
  • have right to pay off mortgage to keep interest from being wiped out
  • If not included interest is not wiped out
213
Q

Senior Interests

A

run with land, purchaser takes subject to senior

214
Q

Foreclosure Proceeds Order

A
  1. Cost of foreclosure (attorney fees and expenses)
    1. Mortgage that’s foreclosed on plus accrued interest
    2. Junior interest in order
    3. Mortgagor
      • If not enough money made at sale, mortgage can sue debtor for balance due
      • Difference between Debt and Sale Price
      • TEXAS: Difference between debt and fair market value of property
215
Q

If not enough money made at foreclosure sale what can mortgagee sue debtor for on MBE

A

Difference between debt and sale price

216
Q

If not enough money made at foreclosure sale what can mortgagee sue debtor for on Texas

A

Difference between debt and fair market value of property

217
Q

Texas Consequences of Installment Land Contract

A

Clauses enforced
- Seller cancels contract, keeps money, gets property back
TEXAS: Sellers have to give buyers detailed notice of prospective forfeiture and buyers have statutory 30 day period to cure default

218
Q

MBE Consequences of Installment Land Contract

A

Clauses enforced

- Seller cancels contract, keeps money, gets property back

219
Q

Due on Sale Clause

A

If mortgagor transfers without mortgagees consent, full amount due

220
Q

Transfers of Security Interest (Mortgage)

A

Each party can transfer

  • Mortgage goes along when mortgagor transfers
  • Mortgagee can transfer note
221
Q

Mortgagor Liability on Mortgage if Transferred

A
  • Mortgagor is always personally liable, transferee is only if specifically assumes it
  • If transferee assumes it they become primarily reliable, mortgagor becomes secondary liable
  • Any modification between mortgagee and grantee discharges original mortgagor
222
Q

Fixture Filing

A

Must be made as required within 20 days of attachment

- If filed, can be moved without regard to any earlier mortgagor or other security interest in property

223
Q

Lateral Support

A

Support from Sides (adjoining landowners)
- Strict Liability for land and damage to improvements if weight of improvements didn’t cause the collapse (land would collapses anyway)

224
Q

Subjacent Support

A

Support of surface from bottom (usually mineral rights)

  • Strict Liability for land and improvements existing when mineral rights were severed
  • Buildings after mineral rights were severed are not strict liability
  • If excavator negligent Plaintiff can sue under tort principles
225
Q

Riperian Water Rights

A

(majority) : Those whose property border on a lake/steam
- Owner can use all water needed for domestic purposes
- If use nondomestic: limited to reasonable use, act reasonably toward other owners downstream or on lake (can’t impair quality or quantity)

226
Q

Prior Appropriation

A

(minority) : First in time takes

- First who makes beneficial use of water has right to use it and protect it from those who later come

227
Q

Texas Water Rights Lakes/ Streams

A

Permit Regulatory System: Prior appropriation main factor and pervious use before now law can be continued

228
Q

Under Ground Water

Percolating water, well water, ground water

A

Landowner is entitle to reasonable use of ground water

- use on own property only no export

229
Q

Texas Under Ground Water Rights

A

English Rule of Capture, Take water from your well even if its neighbors
Limits: Can’t do it maliciously, Can’t waste the water, Can’t cause subsidence of neighbors land because of withdraw of water

230
Q

Surface Water Rights Texas

A

Natural Flow, Reasonable steps to deal with flood water

231
Q

Surface Water (runoff, flood) Natural Flow

A

Reasonable steps to deal with flood water

232
Q

Surface Water (runoff, flood) Common Enemy

A

Can do Anything, reasonable or not

233
Q

Texas Homestead Rural

A

200 acres family/ 100 acres single person

- Acres do not have to be contiguous

234
Q

Texas Homestead Urban

A

Single lot of lots adding up to no more than 10 acres

- Must be contiguous

235
Q

Debts that can force sale of Homestead

A
  • Unpaid taxes on the property

- Loans tied to the property/ financing buying or improving

236
Q

Texas Homestead Encumbrance by Husband and Wife

A

If owned by husband and wife neither can sell or encumber homestead without the signature of the other

237
Q

Texas Homestead

A

business/ residence secured against claims of creditors
- Intent to have it be homestead, either occupy it or take such acts of preparation that court can conclude you were about to occupy it

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