Special issues: conflicts of law

Question 1

Default rule: law of the situs

Answer 1

Generally, the law of the situs—i.e., of the state where the property is located—applies to interests in real property.

Question 2

Default rule: exceptions

Answer 2

The law of the situs does not apply if:

(1) The real estate instrument identifies an applicable jurisdiction;
(2) The issue involves marriage, especially if it relates to classification of marital property;
(3) The mortgage documents require repayment in another state.

Question 3

Foreclosure issues unrelated to interests in land

Answer 3

Issues that relate to a foreclosure but do not affect an interest in land—such as the mortgagee’s right to bring suit upon the underlying debt without having first proceeded against the mortgaged land—are determined by the law that governs the debt for which the mortgage was given.