Real Property - TESTED IN FEB Flashcards
Quitclaim Deed
Quitclaim deed - Grantor promises nothing and grantee gets whatever the grantor has. Grantee cannot successfully sue on deed
Estoppel by Deed
If a grantor transfers property by WARRANTY DEED to a grantee, that the grantor does not have title to yet, when the grantor later acquires title, the title will pass directly to the grantee who should have initially received it
Exception: if grantor also conveys land to BPV after conveyance to initial grantee
Mortgage
A mortgage is a security interest in real property held by a lender as security for a debt.
Statutory Right of Redemption
The statutory right of redemption allows a mortgagor to get property back after the foreclosure sale by paying the amount the purchaser paid for the property, plus all taxes, insurance, fees and interest within 6 months of foreclosure. This has the legal effect of voiding the purchaser’s deed.
Deficiency
Mortgagee whose interest is wiped out by a foreclosure sale can still sue the debtor personally
Joint Tenancy**
Joint tenancy is created if the language “ as joint tenants with rights of survivorship” or “ in joint tenancy with right of survivorship” is used.
Created if interests have vested at the same time, the same instrument granted title, all possess an equal share of the property, and all tenants have identical rights to possess the property. Each joint tenant shares in possession of the entire estate, and each is entitled to an undivided share of the whole. The principal characteristic of the joint tenancy is the right of survivorship.
A joint tenancy is destroyed by partitioning ( by voluntary agreement or judicial action) OR
severance ( G-SAM)
- conveyance during life
- signing a K for sale for your interest
- actual foreclosure by a judgment lien creditor
- executing a mortgage in a title theory state
A will/lease do not sever joint tenancy.
Relations among Cotenants & Right to Contribution***
Joint tenants and tenants in common have the right to possess the whole premises. They do not have to share profits made through their own efforts but have to pay cotenant if:
1) ouster of cotenant
2) tenant deleted natural resources in a way that decreases value of land
3) tenant leases land to a third party***
Right to Contribution
- for expenditures made to preserve property
1) taxes and mortgage payments ( pay share)
2) necessary repairs BUT NOT IMPROVEMENTS
Terms for Years - Landlord/Tenant**
Tenancy for a specific period of time. Can be oral unless it is for over a year. Expires automatically on the end date w/o notice
Holdovers - Landlord/Tenant
A holdover tenancy occurs when the tenant stays on the property past the end date of his lease. The landlord can 1) treat him as a trespasser, evict him and recover damages using the court process or 2) impose a new tenancy on him measured by how often the rent is paid.
Periodic Tenancy*
Created by express agreement, implication ( ie. lease has no set termination date) or by operation of the law (oral lease that violates SOF). Has no fixed end date. Repeats until one party gives valid written notice at the end of a natural lease period (last day of period) and delivered to the landlord, one full period in advance if lease is less than a year, or 6 months notice if year-to-year tenancy.
Duties of a tenant (landlord/tenant)**
Tenant must 1) pay rent* and 2) must not commit waste.
**If tenant does not pay rent, landlord can evict. At common law, convenants in a lease are independant from one another, so if one party breached covenant, the other could recover damages but still hd to perform ( ie. pay rent). Modern cours are more likely to construe covenants as dependant and to excuse one’s duty (ie. to pay rent) if the other party breaches a material portion of the lease agreement.
landlord can waive duty to pay rent, excuse future rent obligations if tenant abandons property, or sue the tenant for damages ( landlord must try to mitigate his damages by re-renting premises to someone else**).
Damages: amount due and owing under common law, but some courts now allow landlord to sue for damages equal to the different between unpaid promised rent and fair rental value for the term.
Trespassors & squattors ( landlord/tenant)
If a person is trespassing or squatting, an owner does not need to file an eviction notice. They can use self-help to evict the squattor or trespassor
Landlord retaliation against a tenant*
If a tenant exercises a legal right, a landlord cannot retaliate. Retaliation is presumed if the landlord acts within 90 days after the tenant exercises his legal right.
Real Covenants & Equitable Servitudes
Covenants and servitudes restrict how an owner can use his land. They are written promises to do or not do something on the land. They bind future owners of the land.
P sues under a theory of breach of real covenant if he wants money damages. For a real covenant to bind successors there needs to be privity (both horizontal and vertical for burden to run, and only vertical for benefit to run), intent, notice, and the covenant needs to touch and concern the land.
Sue under theory of equitable servitude if p wants an equitable remedy. Need servitude to touch and concern the land, intent to bind future successors, and notice to person servitude is being enforced against
Easements
Kinds?
Termination?
An easement is a non-possessor interest that gives one a right to use the land of another
Easements:
Appurtenant - benefits land ( 2 different estates), default
Gross - can’‘t transfer personal easement in gross but can transfer commercial easement ( utility lines)
Kinds of Easements
- express
- necessity (severance of commonly owned parcel)
- pre-existing use ( previous use from a common owner who subdivides land, use was continuous, use was reasonably necessary, and use was apparent)
- prescription - CHANG(15 YEARS IN MICHIGAN)
Terminates by
1) merger
2) release (writing & signed)
3) abandonment ( intent & act)
4) estoppel ( representation of fact & other party relied on it)
5) prescription - servient estate stops use of easement and keeps it stopped for statutory period
6) end of necessity
