Terms:

Question 1

Concurrent Estates:

Answer 1

When 2 or more persons hold a:

• simultaneous,
• present or future interest
• in same piece of property.

Question 2

What is a Cotenant’s right of possession:

Answer 2

Co-Ts always have an undivided right of possession of the parcel: even though each owns only a fractional interest

Question 3

TC, and JT may sell, mortgage or lease their share:

• BUT CAN’T:

Answer 3

TC & JT CAN’T sell, mortgage or lease:

• entire parcel,
• or any specific portion to the exclusion of the other tenants

Cant grant easement:

• w/out all cotenant’s consent

Question 4

Tenant in Common:

• What is required to create a Tenancy in Common:

Answer 4

Tenant in Common:

• 2 parties concurrently own realty w/
• NO right of survivorship:
  
  • When 1 dies = interest passes to her estate
  • NOT through surviving TCs
  • Multiple Adverse Possessors take property as TCs

Requirements to create a Tenancy in Common:

• Deed MUST name 2 parties who are spouses:
• BUT

NO words of survivorship needed:
* ​

Deed does NOT have to contain words:
* “survivorship,” or “husband & wife”

Question 5

Joint Tenants:

Answer 5

Joint Tenants:

• Each hold undivided possessory interest
• AND right of survivorship
  
  • JT dies = interest passes to surviving JTs
  • NOT into Dead JT’s estate

Question 6

MBE:

• Presumption that when property passed to 2 or more people:
  
  • ​Passed to them as:

Answer 6

MBE:

Presumption that when property passed to 2 or more people:

• Passed to them as JTs
• BUT (not spouses):

Question 7

NY Requirement for creating Joint Tenants:

Answer 7

NY:

Need language of survivorship:

• Absent specific survivorship language:
  
  • Prop passing to 2 or more persons by sale, gift, intestacy or under a will:
• Passes to TCs

Question 8

What is needed to create Plural Interest in Property:

• 4 Unities:
  
  • PITT

Answer 8

P: POSSESSION:

• Each Co-T has undivided right to possess the entire prop

I: INTEREST:

• Each must have same identical percentage of interest:
  
  • ​in terms of quality and quantity of title

T: TIME:

• Must have all acquired interest at same time:
  
  • E.g. get married – cant convey share

T: TITLE:

• Rights of each must be created from same deed or will

Question 9

Can a JT convey her interest during life:

• without consent or knowledge of other JTs:

Answer 9

YES:

BUT: the grantee becomes a TC:

• NOT another JT:
  
  • When one JT dies - the other JT takes his share:
  • TC takes nothing

Question 10

Can Joint Tenant devise her interest in a will:

Answer 10

NO: JT’s CANT devise interest in will:

• Interest automatically extinguishes upon death:
  
  • passing by operation of law to the surviving JTs.
  • A,B,C = JTs
    • A sells share to B
    • B dies leaving everything to D
    • When B dies:
      
      • C takes 2/3 (her share + B’s original interest)
      • D = TC = 1/3 (interest purchased from A)

Question 11

Can a Joint Tenant’s interest be attached by a judgment creditor:

Answer 11

YES: Joint Tenant’s interest be attached by a judgment creditor:

HOWEVER:

• By filing a judgment against one JT
  
  • creating lien on that JT’s interest:
  • J-Creditor does NOT effect severance of the realty
• AND lien MAY be defeated
  
  • IF: J-Debtor JT is first JT to die:
  • 100% Interest passes to surviving JT
    
    • free of the judgment lien
    • JC becomes TC

Question 12

Are credits to JT’s are enforceable against surviving JTs:

Answer 12

NO: Credits to JT’s are NOT enforceable against surviving JTs:

• IF 1 JT mortgages her interest in the prop and dies first:
  
  • = Property vests in other JTs
  • free from the encumbrance
    
    • E.g. A owns property –
      
      • adds B to deed –
      • conveyed 1/2 interest as JT
      • B mortgaged his share – then died
        
        • THIS: Did NOT sever the unity
      • A = owned the entire property

Question 13

Tenancy by Entirety:

Answer 13

Tenancy by Entirety:

• 1) TE requires existing valid (legal) marriage
  
  • Not retroactive: gay couple who owned prop prior to marriage will need to be conveyed as spouses
• 2) Neither spouse may destroy a TE w/out consent of the other
  
  • ​CT may NOT entertain an ex parte petition by 1 TE
  • Policy: protects less sophisticated spouse
• ​3) One TE’s spouses judgment creditor CANT bring partition action:
  
  • ​JTs judgment creditor MAY bring partition action:
    
    • AND have JT’s interest sold
• J-Lien foreclosed against one spouse = enforceable by partition
  
  • ONLY if TE is terminated AND debtor spouse survives
• ​IF debtor spouse dies first:
  
  • ​J-C’s lien is extinguished
  • E.g. husband debtor dies = wife relieved of debt

Question 14

At Common Law:

• Were H & W able to hold property as JTs or TCs?

Answer 14

NO:

• Merged by Marriage:
• Marraige entity held title to their property

Question 15

MBE:

• Can Tenancy in Common exist in both
  
  • personal and real property:

Answer 15

YES:

At common law:

• Tenancy in Common CAN’T exist in both
  personal and real property:
• BUT
• Spouse lacks capacity to unilaterally:
  
  • ​transfer title, OR mortgage contingent interest in TE

Question 16

NY:

• Can Tenancy in Common exist for both
  
  • personal and real property:

Answer 16

NO:

• NY: TE = ONLY real property or shares of coop
  
  • ​(coop = shares in personal prop – NY exception)
• ​BUT
• Either spouse can unilaterally mortgage, convey or encumber:
  
  • ​His or her OWN survivorship interest:
  • Subject to the other spouses right of survivorship:
    
    • ​Which can WIPE OUT the transferred interest
    • E.g. NY H sells interest:
      
      • Buyer receives only a contingent survivorship interest:
      • Contingent on H surviving W
    • ​If H dies first:
      
      • ​W = gets 100% of TE prop
    • ​Divorce = H’s grantee becomes TC w/ W
      
      • ​Right to share in rent or profit
      • May partition for sale of prop

Question 17

After-acquired Title Theory:

• a/k/a: Doctrine of Estoppel by Deed
• IF a JT or TE improperly conveys more than his ½ interest:

Answer 17

IF a JT or TE improperly conveys more than his ½ interest:

• THEN: that grantor is estopped from denying the effectiveness of his earlier deed
• IF: Ultimately he is the sole survivor
  
  • ​Full title vests immediately in the grantee
  • ​Under Doctrine of Estoppel by Deed: a/k/a
    
    • After-acquired title theory
  • E.g. son sells property owned by father
    
    • ​Father dies – leaving prop to Son
      
      • ​ =after-acquired title that was conveyed earlier
    • ​Son is estopped from denying earlier conveyance

Question 18

If parties were not in fact married, or void when took property:

• How does this affect the existence of a Tenancy in Common

Answer 18

If parties were not in fact married, or void when took property:

• NO TE existed – ever

To determine how parties hold prop:

• Look to intent expressed in deed and
• apply general rules concerning JTs and TCs
  
  • E.g. engaged couple buys house before marriage:
  • Put TE in deed:
  • Years later – judgment against H
  • If deed was before official marriage = NO TE
  • Must create new instrument after marraige

Question 19

NY deeds executed on or after 9/1/1975:

• What is the presumption about existence of TE:

Answer 19

NY deeds executed on or after 9/1/1975:

• Purporting to convey to H&W who not in fact married:
• NY Presumes that JT was intended
  
  • ​Policy: next best thing – survivorship:
  • Intestacy would pass share to children – not spouse

Question 20

How to defeat a Tenancy in Common:

• 4 Ds

Answer 20

**TE is defeated by the 4 D’s: **

• 1) DEATH of one’s spouse:
  
  • 100% passes to surviving spouse
  • Simultaneous death of both H&W
    
    • defeats survivorship =
    • prop held as JT or TE =
      
      • distributed as if held as TC
• 2) One spouse becomes DEBTOR in bankruptcy
  
  • Trustee can sell TE & divide proceeds
  • (1/2 to trustee & ½ to non-bankrupt spouse
• 3) DUAL Transfer:
  
  • both H&W take part
• 4) DIVORCE, annulment, or NY-separation judgment:
  
  • NOT separation agreement – must include in contract
  • Valid NY or bilateral sister state DADS decree
    
    • converts NY TE into a TC
    • b/c valid marriage is continuing condition to existence of TE
    • either former spouse may bring action for partition:
  • HOWEVER:
    
    • Divorce judgment giving one spouse exclusive possession
    • precludes partition action
  • ​Remedy:
    
    • ​Move to modify divorce decree

Question 21

CONCURRENT TENANTS:

• Liabilty of JTs, TEs, & TC:
  
  • For personal injury on Premises

Answer 21

CONCURRENT TENANTS:

• Jointly and severally liable to person injured on realty:
  
  • By latent dangerous conditions that they
    
    • ​Knew existed, or
    • Should have known existed,
      
      • ​by reasonable inspection

IF specific bequest of real prop is made in will, or D dies intestate:

• Title of realty vests by operation of law to the specific legatee named in the will, or in D’s intestate distributees:
• Any tort claims against the property = asserted:
  
  • ​Against the individual beneficiaries
  • NOT the estate
    
    • E.g. kids inherit house but no deed yet
      
      • When parents died – kids became J&S liable

Question 22

IF 1 Co-T has exclusive possession or control:

• How does this affect liabilty of other Co-Ts:

Answer 22

Where 1 Co-T has exclusive possession or control:

• Other Co-T = NOT personally liable to P:
  
  • ​like a landlord out of possession is

Question 23

Can a concurrent tenant voluntarily out of possession:

• demand rent from tenant in possession:

Answer 23

NO:

Concurrent tenant voluntarily out of possession = no right to demand rent

• from tenant in possession

Unless other tenant:

1. Agreed to pay rent
2. Wrongfully ousted other tenant, OR
3. Denied co-t access to prop

Co-T is accountable to Co-Ts for rent collected from 3rd party in possession:

• E.g. rent collected by prop manager

Question 24

IF a CO-T in possession wrongfully ousts or denies access:

• What duty does he have towards Co-Ts:

Answer 24

Where CO-T in possession wrongfully ousts or denies access:

• MUST account to other Co-T for her portion of the market value
  
  • of the rent from the time of denial
    
    • ​e.g. if rent should be $1000/month = ½ rent goes to Co-T

Question 25

What may a Co-T in possession who made tax and mortgage payments:

• Recover from other Co-Ts:

Answer 25

Co-T in possession who made payments or repairs:

• MAY recover other Co-Ts their share of these payments:

IF market rental value exceeded the payments:

• ​Tenant in possession has no right to contribution,
• AND
• Others may use their share to offset payments to Co-Ts

Question 26

Co-T in possession who makes nice but not necessary improvements:

• w/out consent of other Co-Ts
• May recover:

Answer 26

= Mere volunteer:

Co-T in possession who makes nice but not necessary improvements:

• w/out consent of the other Co-T

NO immediate right to seek contribution for such improvements

• UNTIL: final accounting when prop is partitioned or sold:
• ONLY to extent:

1. “Improvements increased selling price”, OR
2. Actual cost of improvements

(Whichever is less)

Question 27

TCs and JTs are free to partition the prop at any time:

• By a COW

Answer 27

TCs and JTs are free to partition the prop at any time: By a COW

C: COURT decree:

• When Co-Ts cannot agree on division:
• CT will render final accounting after weighing equities
• Equity favors dividing prop in kind (partition in kind)
  
  • ​If it is capable of physical division
  • A =1/2, B=1/2 of prop as two lots
• ​If partition in kind is not practical:
  
  • CT will order prop to be sold:
  • Equitably dividing proceeds
• CT will consider:

1. Contributions of Co-T toward purchase $$
2. Who paid mortgage, tax, and expenses, AND
3. Co-Ts contribution for improvements

O: ORAL agreement b/w all Co-Ts:

• Oral partition agreements are enforced either as:

1. Part performance, or
2. Estoppel theory

• ​Where Co-Ts:
  
  • ​orally agree,
  • take possession AND
  • make improvements or materially change their position
• ​On reliance of the oral agreement
• Exception to SOF:
  
  • Prove oral agreement and estop one party from being unjustly enriched
  • b/c of reliance on unenforceable K

W: Signed WRITING voluntarily petitioning the prop:

Question 28

3 types of Broker Contracts:

Answer 28

1) Exclusive right to sell:

• Requires all sales negotiations to pass through the Br
• S is liable for commission if prop is sold:
• Even if S found the buyer and brought about sale

2) Exclusive Agency: (Best)

• Deters S from using services of another Br
• If another Br brings about the sale =
• Br w/ Ex.A may also seek a commission
• HOWEVER:
  
  • If S sells the prop herself = not liable for commission

3) Non-Exclusive Agency:
* Br earns commission ONLY when she produces a RAW buyer

Question 29

BEFORE entering the real prop K:

• Caveat Emptor requires:

Answer 29

BEFORE entering the real prop K:

Caveat Emptor:

• Requires buyer to take care and diligently inquire into structural and environmental condition of the property and neighborhood

Question 30

**Caveat emptor Precludes a claim for rescission: **

• by purchaser for structural or other defects that were:
• 3

Answer 30

**Caveat emptor Precludes a claim for rescission: **

• by purchaser for structural or other defects that were:

1) Open & Obvious

2) Discoverable by reasonable inspection

• of either premises or public records,

3) NOT concealed or hidden by the silent seller:

• fraudulent concealment:
• S may not rely on CE

Question 31

What is a seller’s misrepresentation:

• Precluding S from relying on Caveat Emptor

Answer 31

Misrepresentation:

• Conduct or statement that is not in accord with the facts
  
  • Omissions and deflections could be misrepresentations

S who makes misrepresentations may NOT rely on Caveat Emptor:

• e.g. Not mentioning a sex offender = NOT misrep
  
  • Unless the person asks specifically

Question 32

Broker has a duty to disclose to seller:

Answer 32

Broker has a duty to disclose KNOWN FACTS:

• Materially affecting the value of the property
  
  • Not AIDS – by statute

MUST show:

• Br knew AND
• Materially impacted the value

Question 33

“As Is” Clause:

Answer 33

AS IS Clause:

• B evaluated the quality of the prop before signing the K
• AND that B has NOT relied on any representations by S

BUT:

• WON’T: Shield S from claim for fraudulent concealment

Question 34

NOT REQUIRE TO BE DISCLOSED BY SELLER:

• Caveat Emptor precludes B from claims for these defects:

Answer 34

NOT REQUIRE TO BE DISCLOSED BY SELLER:

• Leaking roofs,
• seeping cesspools,
• ferocious fleas,
• water and fire damage, as well as
• prior crimes on the property

Question 35

Statute of Frauds:

• Real Property Contract Requirements:

Answer 35

Statute of Frauds:

To be enforceable:

• Any contract affecting interest in real prop:

MUST be in Writing Signed by:

• Party to be charged w/ its breach, OR
• Authorized agent of that party
  
  • whose authority is expressed in a signed writing.

Exception:

• Oral lease for 1yr or less
• Dist:
  
  • Beware oral service Contracts taking more than 1 year
    • Not the same as a real prop K

Question 36

NY:

In order to sue for real estate broker’s commission

• P MUST plead and prove:

Answer 36

NY: In order to sue for real estate broker’s commission

P MUST plead and prove:

1) Was duly licensed NY broker or lawyer when cause of action arose:

AND services were performed by licensed real estate broker or licensed real estate sales person, AND

2) Broker was procuring cause of the sale:

Simply introducing B & S = NOT enough to earn Br’s commission.

Question 37

exception to the SOF:

Answer 37

Part performance on an oral real prop K is an exception to the SOF:

· To excuse the writing CTs will consider 3 types of PIP part performance:

· MUST unequivocally refer to an agreement for a transfer of realty

Question 38

Signed real prop K MUST contain

• all of the material terms:

Answer 38

Signed real prop K MUST contain all of the material terms:

MUST:

1. Name B & S:
2. Sufficiently describe property AND
3. State purchase price

Missing purchase price = nullifies K

Even though signed by party to be charged

Question 39

Description of Property:

• To be enforceable = K & deed MUST
  :

Answer 39

Description of Property:

• To be enforceable = K & deed MUST
  
  • sufficiently describe a particular parcel
  • to the exclusion of all others

Question 40

Implied condition of good faith in real property transaction:

• NY Exception:

Answer 40

Implied condition of good faith:

• Neither may do anything to prevent the full performance of the K

NY EXCEPTION:

• Real prop K conditioned on Attorney approval

Question 41

Marketable Title:

Answer 41

Marketable Title:

· Free from encumbrances and reasonable doubt

o As to the interest of any 3rd person

· Title that B will not have to defend by litigation

If K makes no mention as to the quality of the title to be conveyed:

• Implied in K (not in deed) that:
  
  • S will tender a “marketable title” at closing.

Question 42

Part performance on an oral real prop K is an exception to SOF:

• if PIP
• NY distinction:

Answer 42

Part performance on an oral real prop K is an exception to the SOF:

• To excuse writing CTs will consider 3 types of PIP part performance:

MUST unequivocally refer to an agreement for a transfer of realty

• P: PAYMENT of PURCHASE price in whole or in part:
• I: Making valuable IMPROVEMENTS:
• P: Taking POSSESSION

_​_NY:

B’s conduct alone must unequivocally refer to the K:

• w/out resort to oral testimony:
  
  • E.g. Outlays of big expenditures that would not have benefitted the tenant,

Almost impossible in NY:

• to achieve PIP part performance
• sufficient to take oral real prop K out of SOF:
  ​

Question 43

Zoning & rent control:

• Impact on B
• Seller violations impacting marketable title:
  
  • MBE
  • NY

Answer 43

Zoning & rent control:

• B takes title subject to existing zoning and rent control laws:
  
  • Limiting the use of land –
• Doesn’taffect title

Changes in these laws after K but before closing:

• B = NOT excused from K

MBE

Zoning violations renders MBE title unmarketable IF:

• S’s current use of property violates existing zoning laws

NY

• Existing zoning violations do NOT render title unmarketable:
• UNLESS:
  
  • Litigation has begun, OR
  • K expressly so provides.

Question 44

Merger Doctrine:

Answer 44

Merger Doctrine:

• Covenant of marketable title merges in the deed:
  
  • When S delivers deed to B at closing

Thereafter S’s title obligations under K are discharged:

• B’s rights are based solely on Warranties contained in the deed.
• B’s acceptance of the deed is Prima Facie evidence of
  
  • S’s compliance w/ K requirements as to title:
• Breach of K claim CAN’T stand
  
  • UNLESS fraud or mutual mistake

Question 45

In order hold a party in default for failure to close:

Answer 45

In order hold a party in default:

• Party claiming the other breached MUST demonstrate to CT:
  
  • He was RAW to comply w/ the K terms

​E.g. IF B was not RAW - CANT sue S

Question 46

Equitable Conversion:

• Effects on Parties’ Interests: (3)
  
  • MBE
    
    • Exceptions to ROL rule
  • NY

Answer 46

Once a real prop K is signed:

• S = security interest for payment of puchase price:
  
  • (considered personal property)
• B = Equitable Title holder:
  
  • Owner of the real property

​Effects Parties interest in 3 ways:

1) If B or S dies:

• MBE:
• Equitable conversion affects a bequest of “real prop” passing in will
  
  • e.g. “All my realty to X, and all my personal Prop to Y”
    
    • Only real prop = house
    • House was contracted to be sold to B
  • Eyes of equity = house already handed over!
    
    • S did not have home when exectuting will
    • ​Became personal prop = goes to Y
      
      • Y = entitled to value of house (not real prop)
• NY:
• If testator enters K to sell realty:
  
  • K does NOT revoke prior disposition in T’s will of that prop
  • Prop passes under will to named beneficiary
    
    • ​Subject to the executory contract

​2) Judgment Creditors:

• MBE:
• JC executes judgment in county where S owns realty:
  • Once K of sale is signed = NO prop interest in the home
    
    • Lien WON’T attach to S’s interest
      
      • b/c considered personal property​
• If judgment is against B
  
  • ​Attaches to B’s converted interest
    
    • even though B has not yet taken the deed
• NY:
• JC steps into shoes of Judgment Debtor:
  
  • ​E.g. 5/1/14 – S enters K to sell Home
  • 6/1/14 – Judgment entered against S
  • JC will file judgment against S in county where he owns prop

3) Risk Of Loss:

• Damage to prop, through no fault of either party:

After K signed, but before deed conveyed :

• MBE: on B
• NY: on S
  
  • UNLESS: contrary stat or specific K language

EXCEPTIONS to MBE ROL Rule:

1) Damage was S’s fault
2) S’s title was defective &

• S could not have tendered marketable title at closing
• b/c closing might not have gone through.

3) K was subject to condition that was NOT satisfied:
* Excuses B from K
4) Uniform vendor & Purchaser Risk Act: (NY & 12 states)

• ROL remains with S:
  
  • S is in best position to have insured against loss or damage:
  • Even though equitable title passes to B when K is signed.
• ​__ROL does NOT pass to B UNTIL:
  
  • 1) Title passes at closing, OR
  • 2) B takes possession prior to closing
• NY: Destruction prior to closing:
  
  • Materially destroyed through no fault of either party, OR
  • Material part is taken by eminent domain
    
    • ​S may not enforce real prop K AND
    • B may rescind it
    • B MAY enforce the K w/in abatement in the purchase $
  • Immaterial part of prop is damaged or taken:
    
    • Enforceable by either party w/ abatement in price
      
      • E.g. Pipes broke over winter = material
        
        • NY = S’s fault
        • NY B’s remedy?
          
          • 1) Can walk away, or
          • 2) Can enforce K w/ abatement:
    • E.g. Tree branch on roof = immaterial
      
      • Both can enforce w/ abatement to repair

Question 47

Delivery of Deeds:

• For valid delivery of deed, Grantor must:

Answer 47

For valid delivery of deed:

• Grantor MUST intend to pass title immediately to grantee:
  
  • AND
• Grantor must give up dominion and control over the deed.
  
  • e.g. putting deed in folder is not “delivery”

Deed NOT properly delivered = nullity:

• Even if recorded by grantee

Once deed has been effectively delivered and accepted:

• Title WON’T re-vest in grantor by:
  
  • Subsequent oral cancelation, deliberate destruction or even its re-delivery back to grantor.

Question 48

Causa Mortis gifts of realty:

• Is a Deed that is delivered directly to grantee and is orally conditioned on the grantors death valid?

Answer 48

NO gift causa mortis of realty:

• Deed delivered directly to grantee which is orally conditioned on the grantors death = void
  
  • b/c deed is testamentary in intent, AND
  • Does NOT satisfy the Statute of Wills
• e.g. “if I die, take this watch.”
  
  • Gift is conditional on the death that G was concerned about

Question 49

Corrective Deed:

• How to correct an error in a delivered deed:
• If Grantee is omitted on a deed:

Answer 49

Corrective Deed:

Customary method of correcting an error in a delivered deed is for:

• Grantor to execute and deliver to grantee a
  
  • NEW corrective deed in the form originally intended.

If Grantee is omitted on a deed, or his interest is misstated:

• ALL grantee’s adversely affected by the new corrective deed:
• MUST join in its execution

Question 50

Seller’s refusal to execute a corrective deed breaches…:

• Grantees remedy:

Answer 50

Seller’s refusal to execute a corrective deed:

• breaches the covenant of further assurances
• IF such covenant was given in 1st deed:

Grantees remedy is to sue for reformation

Question 51

Quitclaim Deed:

Answer 51

Quitclaim Deed:

Simplest of all deeds:

• Grantor covenants ONLY to convey whatever interest he may have
  
  • Simply states that he is quitting any claim he has to the land
  • Often used by an adverse possessor:
    
    • to tack his years together to satisfy statutory time requirement.
• If Contract makes no mention as to type of deed to be delivered at closing:
  • THEN only a quitclaim deed need be tendered:

Answer 52

Deed = written instrument:

· Signed and delivered by a grantor to convey title to real prop:

· Signature of grantor of any real prop interest:

o MUST be acknowledged by a notary in order to be accepted for recording by the County Clerk (CC)s

o Acknowledgment is NOT necessary to transfer title

§ Its absence does NOT affect grantee’s interest as to the grantor

§ BUT the inability to record may affect the grantee’s interest as to 3rd party

Question 53

Special warranty Deed:

• NY=Bargain and Sale Deed:

Covenants ONLY that Grantor has
:

Answer 53

Special warranty Deed (NY=Bargain and Sale Deed):

• Covenants ONLY that Grantor has
  
  • NOT encumbered the marketability during his ownership period.

Question 54

General Covenant & Warranty Deed:

• Covenants of SEC FEW:
• Distinction b/w SEC & FEW Covenants:

Answer 54

**General Covenant and Warranty Deed: **

• Most complete deed:
• b/c includes the following Covenants: SEC FEW

Includes Covenants of:

• S: SEISIN:
  
  • Covenants that grantor possess the quality and quantity of land purported to be conveyed
  • E.g. owns 2 acres (not 1), owns fee simple (not merely life estate), or not a Co-T with unnamed 3rd person.
• E: Against ENCUMBRANCES:
  
  • Promises that no 3rd person has any interest that would diminish the prop value, EXCEPT as expressly stated in deed.
  • e.g. No surprise encumberances
• C: Right to CONVEY:
  
  • ​G has right and authority to convey title
• F: FURTHER assurance:
  
  • G will execute any documents needed to clear title for any subsequent grantees:
  • E.g. Corrective Deed, or future claim by 3rd person but deed is missing –
    
    • 50 years later – if you are asked for assurance of title and dont give it= breach
• E: Quiet ENJOYMENT:
  
  • Grantee’s possession will not be disturbed:
  • Damages: G will pay damages for disturbance
  • Breach ONLY: when future grantee is actually ejected from the prop.
• W: WARRANTY:
  • ​​G forever warrants and will defend from legal attack titel as it is described in the deed.

**Distinction b/w SEC & FEW Covenants: **

• Liability for Breach of SEC FEW covenants is limited to:
  
  • Actual out of pocket restitution:
    
    • May not exceed purchase price received by Grantor

​SEC Covenants = Present covenants:

• ​Breach & SOL begins to run when deed is delivered:
• Made only to grantor’s immediate grantee:
  
  • ​​Not intended to run w/ land to future grantees

FEW Real Covenants = Horizontal Privity:

• Extens to all subsequent grantees:
  
  • Run w/ land whenever re-conveyed.
• FEW Grantee MAY recover Att fees expended in 3rd party suit:
  
  • ONLY if she loses title or pays to remove the title flaw
  • IF she wins = MAY not recover from G
    
    • ​b/c FEW covenants of quiet enjoyment was never actually breached
    • b/c your title has not been affected

Question 55

Bono Fide Purchaser:

• To qualify & prevail over prior unrecorded interest
  
  • Subsequent purchaser MUST: (3)
• Subsequent Judgment Creditors who record judgments as a lien:
• If B purchases w/ both B’s and banks PMM:

Answer 55

Bono Fide Purchaser:

To qualify and prevail over prior unrecorded interest:

• Subsequent purchaser MUST:

1. Act in good faith in acquiring her interest,
2. Pay some new consideration
   
   1. (or part with some value or right)
3. MUST receive its interest in the realty with CIA notice:

• ​​C: CONSTRUCTIVE notice:
  
  • ​Refers to all prior documents in the props chain of title:
    
    • Purchasers have duty to search chain of title for any prior recorded interest, AND
    • Deemed to have constructive notice of any previously recorded in the title
• I: INQUIRY notice
  
  • ​Facts arise that would excite the suspicion of a Reasonably prudent person and
    
    • Cause RPP to further investigate and
    • Inquire as to 3rd person’s possible interest in realty
  • Failure to make reasonable inquiry is negligence = defeats BFP status
  • E.g. 3rd person in possession of land
    • ​Inquiry is required to determine the basis of her right to possess
• A: ACTUAL notice:
  
  • Oral notice from S, or some doc at closing:
  • E.g. B fails to read the Deed

Subsequent judgment creditors who record their judgments as a lien:

• BUT paid no new consideration for their interest = NOT protected
  
  • Judgment Creditor CAN’T be a BFP
  • E.g. S conveyed BA to B:
    • ​ B neglected to record the Deed:
    • JC recovered Judgment against S & filed lien against BA:
      
      • ​JC WON’T prevail over B’s prior unrecorded interest:
        
        • ​b/c J = NOT BFP
        • Even though JC was 1st to record (file)

If B purchases w/ both B’s and banks PMM:

• THEN JC prevails over the banks
  
  • E.g. Use $500K of your money and $500K from bank

Question 56

If judgment is recorded in county where debtor owns no real prop

BUT Debtor subsequently acquires title in that county:

• Does Judgment attach to property?
• What if Purchased Money Mortgage was used to purchase?

Answer 56

IF debtor acquires title in a county where a judgment exists against him:

• Recorded judgment automatically attaches to new land

HOWEVER:

IF debtor financed the purchase with a purchased money mortgage (PMM):

• PMM prevails over prior recorded judgment
  
  • Even though mortgagee took the mortgage w/ constructive notice of the prior judgment
• ONLY to extent the mortgage proceeds were used to purchase the prop.
  
  • Banks gets in under the JC: the money is the banks
    
    • Not the J-Debtor who borrowed it

Question 57

**Shelter Doctrine: **

• Can a Subsequent BFP that has superior interest over prior unrecorded interest, transfer BFP status:

Answer 57

Subsequent BFP that has superior interest over prior unrecorded interest:

• MAY transfer that BFP status to future grantees
• Who otherwise would not qualify as BFPs

Under Shelter Doc:

• Future Grantees prevail over prior unrecorded interest
• Even if they took w/ouyt value or
  
  • ​w/ notice of prior unrecorded interest
• E.g. B buys from S – then S sells it again to someone else
  
  • ​B gives prop to C – C records
  • B was BFP = C will be sheltered by B’s BFP status

Question 58

TYPES OF RECORDING STATUTES:

• (3)

Answer 58

1) Notice Statute

• Give priority to a subsequent BFP over prior unrecorded instrumentIF: at time of taking second instrument
• BFP had NO CIA notice of earlier interest
• THUS: even if 1st grantee is the 1st to record
  
  • ​but recorded after BFP took his interest
• ​THEN: subsequent BFP nevertheless prevails under the notice statute

2) Race Notice: (NY)

• Priority is given to subsequent BFP who at the time she takes the instrument has no CIA of the prior unrecorded interest, AND
• Is 1st to record

**3) Race Statute: **

• Priority is based solely on who was first to record
  • Neither CIA notice or good faith are relevant:
• Subsequent purchaser for value who is 1st to record = prevails
  • ​Even though there was inquiry or actual notice of earlier unrecorded interest

Question 59

Collateral Doctrine Rule:

• Where contiguous props were formerly held by common owner:
• Purchaser’s Duty:
  
  • NY: Distinction

Answer 59

Collateral Doctrine Rule:

• Purchaser is charged w/ constructive notice of instruments recorded in adjacent property’s chain of title:
  
  • where contiguous props were formerly held by common owner

HOWEVER:

• **NY = **NO duty to search chain of title to any adjoining lands formerly owned by a common owner
• E.g. Prop gets subdivided
  
  • ​Including easements in new deed
  • Subject only to the parcel you bought

Question 60

Grantor Grantee Index:

• NY: Distinction
  
  • ​Track or Parcel Index:

Answer 60

Grantor Grantee Index:

• Uses names of parties as indexing method
• Recording Clerk alphabetically files docs for each type of land transaction according to its nature.

**NY = **Track or Parcel Index:

• Each parcel is the indexing method:
• Tracing in sequence of time:
  
  • ALL transactions on that parcel in one index.

Question 61

Adverse Possession:

• Elements:
  
  • G CHODE (EUNUCH)
• MBE:
• NY:

Answer 61

Adverse Possession:

• Allows Trespasser’s possession to ripen into ownership:
  
  • ​Through passage of time

Elements: G CHODE

G: Under GOOD faith claim of right (NY ONLY)

• NY AP claims commenced on or after 7/7/08:
  
  • AP must demonstrate that she took possession
    
    • w/ objective good faith belief that she owned the land
• NO AP = If evidence at trial doesn’t justify AP’s belief,
  
  • OR facts state that she knew land did not belong to her
• EXCEPTION:
  • ​IF true owner’s identity could not be ascertained in land’s chain of title

**C: **CONTINUOUS & uninterrupted possession:

• By anyone (not just owner)
• NY:
  
  • 1) Seasonal use of vacation prop = sufficient
    
    • IF use would put true owner on notice
  • 2) Not necessary that same person be in possession for the entire AP period,
• Tacking: AP can tack on time of a previous AP
  
  • IF: there was privity of estate b/w APs

H: HOSTILE possession toward owner’s title:

• Possessor openly occupies the land w/out OPA:

O: OFFERING to buy land from Owner:

P: Asking PERMISSION to use the land, OR

A: ACKNOWLEDGING to anyone that title is in Owner

• Possession w/ O’s permission = defeats AP
• Hostile possession only begins to run when permission is repudiated, AND
  
  • Possession assumes open hostility against owner

O: OPEN & notorious possession:

• Would put owner & neighbors on notice that trespasser was on land:

D: Owner under no DISABILITY: (infancy or mental)

• When the AP began! AND
  
  • When owner could have 1st sued to eject trespasser
• ​If Disability exists when AP begins:
  
  • SOL = tolled until disability is cured

**E: EXCLUSIVE possession: **

• AP alone must care for disputed prop as if it was his own
  
  • NOTE: AP will be credited w/ time that his tenants or others he put in possession occupy the land. (for SOL purposes)

MBE:

• 1) AP’s state of mind is irrelevant, AND
• 2) AP need not possess the land under claim of right:
  
  • Squatter may obtain title:
  • even w/out claim of right or subjective belief of ownership

NY = Does NOT follow this rule:

• Must be hostile
• NY AP claims: CANT be Deminimus, non-structural encroachments,
  • ​​i.e. sheds, birdhouses, shrubs, fences
• NY: Lawn-mowing, and landscaping on another’s land
  
  • = NOT adverse (Permissive)
• IF title was vested to NY AP before 7/7/08:
  
  • ​New law = WONT retroactively revoke that vested title

SOL varies by jurisdiciton:

• NY = 10 years
• **Common law = 20 years **
  
  • After which:
    • actual owner’s cause of action for ejectment = barred

Merely ordering the AP to get off the land = NOT interrupt period of AP

• AP MUST acknowledge the owner, OR
• owner must commence ejectment action w/ AP SOL

Question 62

Adverse Possesion:

• Portion of land being continuously posessed:
  
  • Constructive Possession:
  • Foot Print Doctrine:

Answer 62

Constructive Possession:

• Possessor w/ written colorable title to entire parcel (deed)
• BUT only occupies part of it
  
  • = possession of whole parcel:

Foot Print Doctrine:

• If AP is NOT based on written instrument
• = Only portion occupied is AP

Question 63

Unintentional Trespass (encroachment):

• CTs remedy
• NY: Distinction

Answer 63

Unintentional Trespass (encroachment):

• CT may balance equities & relevant hardship to both parties:
• May award money damages:
  
  • where it would be inequitable to require removal of the encroachment:
  • $$ = difference in P’s land value before and after encroachment

NY:

• Unintentional encroachment exterior wall = 6 inches or less:
  
  • Effected land owner has 1 year from completion of wall to sue:
  • After = only money damages may be sought

Question 64

When is period of Adverse Possession interrupted?

• How does Owner interupt possession?

Answer 64

Merely ordering the AP to get off the land = NOT interrupt period of AP

• AP MUST acknowledge owner, OR
• Owner must commence ejectment action w/in AP SOL.

Question 65

Easements:

• Dominant Estate
• Serviant Estate
• Adverse Possessors effect on Easement:

Answer 65

Easement = A unique real prop interest:

• Right to use someone prop for specific purpose:
• May be protected by an injunction

Easement = Consist of both:

• Dominant Estate
  
  • Land Benefited by the easement
• Serviant Estate
  
  • Land burdened and over which the easement runs

AP takes prop subject to existing Burdens on the land:

• i.e. mortgages, easements, future interests, and/or covenants:

**AP’s possession MAY existing easement, covenant, or profit: **

• IF it was hostile to those particular interests

Question 66

Negative Easements:

• LAWS

Answer 66

Negative Easements:

· Prevent serviant estate from using her land in a particular way are limited to LAWS:

o L: LIGHT (solar easement)

§ US CTs reject English “Doctrine of Ancient Lights”

§ i.e. blocking someone’s view = AL

o A: AIR

o W: WATER use

o S: SUPPORT

· If there is a negative restriction on use of property that does not involve LAWS:

o = Covenant (not easement)

Question 67

Deed:

• Defintion:
• Requirement for recording with County Clerk:

Answer 67

Deed = written instrument:

• Signed and delivered by a grantor to convey title to real prop:
• Signature MUST be acknowledged by a notary:
  
  • in order to be accepted for recording by the County Clerk (CC)s

Acknowledgment is NOT necessary to transfer title:

• Its absence does NOT affect grantee’s interest as to grantor,
• BUT: inability to record may affect grantee’s interest as to 3rd party

NO acknowledgment (or defective) on recorded instrument:

• = NO constructive notice of its content to subsequent purchasers

Question 68

Special warranty Deed:

• NY= Bargain and Sale Deed:

Answer 68

Special warranty Deed (NY=Bargain and Sale Deed):

• Covenants ONLY that Grantor has:
  
  • NOT encumbered marketability during his ownership period.

Question 69

**General Covenant and Warranty Deed: **

• Includes covenants of SEC FEW

Answer 69

SEC Covenants:

• Present covenants:
  
  • Breached & SOL begins to run when deed is delivered:
• Made only to grantor’s immediate grantee:
  
  • ​Not intended to run w/ land to future grantees​

FEW Covenants:

• Extend to all subsequent grantees:
• Runs w/ land whenever re-conveyed

Liability for Breach of SEC FEW covenants is limited to:

• Actual out of pocket restitution:
• May not exceed purchase price received by Grantor

FEW grantee who does not lose title or pay to remove title flaw:

• May not recover from Grantor in 3rd Party suit:
  
  • b/c title has not been affected (no breach)

Covenants of SEC FEW:

S: SEISIN:

• Covenants that grantor possess the quality and quantity of land purported to be conveyed
  
  • ​E.g. owns 2 acres (not 1), owns fee simple (not merely life estate), or not a Co-T with unnamed 3rd person.

E: Against ENCUMBRANCES:

• Promises that no 3rd person has any interest that would diminish prop value,
• EXCEPT as expressly stated in deed.

C: Right to CONVEY:

• G has right and authority to convey title

F: FURTHER assurance:

• G will execute any documents needed to clear title for any subsequent grantees:
  
  • ​E.g. Corrective Deed, or future claim by 3rd person but deed is missing - 50 years later – if you are asked for assurance of title and dont give it = breach

E: Quiet ENJOYMENT:

• Grantee’s possession will not be disturbed:
• Damages = G will pay damages for disturbance
• Breach: ONLY when future grantee is actually ejected from the prop.

W: WARRANTY:

• G forever warrants and will defend from legal attack titel as it is described in the deed.

Question 70

Estoppel by Deed:

• Where G who does not have full title conveys a deed purporting to convey more than she owns:
• i.e. After-Acquired

Answer 70

Estoppel by Deed:

• Where G conveys a deed purporting to convey more than G owns:
  
  • But later acquires part or all of that title =
• THEN = Liable for breach of covenants contained in deed:
  
  • Estopped from asserting any subsequent rights to title

WON’T apply if Grantor’s 1st deed was simply a quick claim deed:

• b/c/ no promises – only sold “what he had”
• If someone else is the owner = then G didn’t convey anything

Question 71

Benefit to recording the Deed:

• If Grantee fails to record that interest:
• What if there is a judgment prior to recording the new deed:

Answer 71

Recording the instrument provides constructive notice & warns:

• subsequent persons of grantee’s existing interest in the realty

Once the interest is recorded:

• any subsequently created interest in the realty
  
  • = subject to earlier recorded interest
• E.g. protects grantee where grantor subsequently attempts to convey away or encumber same property.

Recording the deed is NOT necessary for transferring interest:

• BUT if Grantee fails to record that interest:
• May lose it IF:
  
  • Subsequent purchaser qualifies as a BFP
• But:
  
  • Gifted prop = WON’T cut off prior unrecorded interest.

Recorded Judgment =

• prevails over subsequently created interest in prop:
• b/c New grantee will be on constructive notice of the prior recorded judgment and WONT qualify as BFP

Question 72

Affirmative Easements:

• PIGS

Answer 72

Affirmative Easements:

• Grant privilege for someone to affirmatively use another’s land for a specific purpose.

ONLY Created by PIGS:

• P: Easement by PRESCRIPTION (Adverse possession)
  
  • ONLY requires use of another’s property for Stat period
    
    • w/out owner’s permission
  • NY: Req good faith objective belief in the right to use another’s land
• **I: Easement by IMPLICATION **(a/k/a Quasi-easement)
  
  • ​Implied from a prior common owner’s open, apparent preexisting use of the dominant AND serviant estates.
  • Where Common owner made open, apparent, permanent, and reasonably necessary use of one part of her land for benefit of another part.
  • Upon dividing and selling one part of land:
    
    • implied easement created over the parcel retained for the benefit of owner of other part. (NYAA-650)
• CRAB: raises an inference that parties intended an easement:

ú C: Both dominant and serviant were formerly owned by a COMMON owner who then subdivided the land

ú R: REASONABLY necessary for use and enjoyment of the dominant estate

ú A: Easement was APPARENT from a reasonable inspection of the land

ú B: Former use by the common owner subordinated one part of the land for the BENEFIT of another part.

o G: Easement by GRANT:

§ Created in signed writing

§ Compared to a license which is oral permission to use the serviant estate Which is NOT enforceable b/c of SOF

o S: Easement by STRICT necessity:

§ Also an implied easement - BUTCommon owner subdivided the land leaving one parcel landlocked leaving one party no access to a public way

§ MBE: Water access was not land locked –

ú now need to be able to use a vehicle to get to public way (car)

Question 73

Implied Warranty of Inhabitability:

• MBE
• NY

Answer 73

New construction carries an implied warranty of habitability from builder:

• NO disclosure Act = no prior owner

These implied warranties survive delivery of the deed:

• Imposes duty on builder to construct the dwelling:
  
  • in a skillful manner, AND
  • free from material defects

MBE: (Most states)

• Warranty WON’T extend beyond first purchaser in privity w/ builder

NY:

• Extends protection to successors in title during warranty periods.

Question 74

Difference b/w:

• Fee Simple Determinable:
• Fee Simple Subject to Condition Subsequent:

Answer 74

Both:

• Convey land as fee simple w/ restriction on use of the land:
• Limitations run with the land forever:
  
  • Not restricted by Rule against Perpetuities

**Fee Simple Determinable: **

• Auto-forfeiture: for violating restriction:
  
  • Not favored by CTs
• Future interest = “possibility of reverter”
• Req Words: “So long as,” “until,” or “during.”
  
  • Must be clear and unequivocal in the deed.

Fee Simple Subject to Condition Subsequent:

• NO Auto-Forfeiture for violating restriction:
  
  • Violation gives Grantor or his successors:
    
    • right to commence action to reenter or retake land.
• Future interest = “reversionary right of entry”
• Future interest takes free from interests placed by hodler
  • i.e mort, easements
• Req Words: “but if,” “on the condition that,” “provided that,” etc.

Many jurisdictions now require:

• Newly created limitations be recorded every 20 years
  
  • NY: can bring aciton to abolish unreasonable limitations

Conditions crested after 9/1/58: (RPAPL)

• Forfeiture only by CT order & if interest is substantial
• Intent to preserving reversionary interest:
  
  • must be recorded every 20 years

Question 75

Tenancy at Sufferance:

Answer 75

NOT a tenancy at all:

• Period of time after lease expires where
  
  • T wrongfully continues to remain

IF landlord accepts rent from tenant:

• Creates periodic Tenancy

IF LL refuses to accept Holdover T’s rent:

• T is liable for fair market rental value of the prop for T’s time in possession after lease expired

Difference b/w Trespasser v T at sufferance:

• T’s entry was lawful

Question 76

Tenancy for Years:

Answer 76

• Actual termination Date of the lease is fixed.

Question 77

Periodic Tenancy

Answer 77

Lease for a period of 1 year or less

• Automatically renewed
• Unless one party gives notice of termination

Question 78

Tenancy at Will:

Answer 78

Duration of lease is dependent upon the will of the landlord

Question 79

Waste:

• By lawful possessor of a real property estate:
  
  • 3 types:

Answer 79

Waste is an unreasonable, unlawful act or omission by person lawfully in possession of land:

• that lessens the value of the remaindermen’s interest:

Affirmative / Voluntary:

• Overt conduct that causes a decrease in value.
  
  • (ie. Overt destructiveness)

Permissive / Involuntary:

• Neglects land and allows it to fall into disrepair.
  
  • Life tenant only required to make reasonably good repairs

Ameliorative Waste:

• Making unauthorized, unnecessary improvements that actually increase the value of the land.
  
  • Must not engage in acts that will enhance the property value
• UNLESS all future interest holders are known and consent.
• ​Party who receives land after grantee’s life estate is terminated:
  
  • NOT liable to life tenant for value of improvements.

Examples:

1. ​NOT waste to cut timber or take minerals:
   
   1. To use as fuel,
   2. To make repairs to premises,
   3. If authorized by lease, or
   4. To sell, if land was previously commercially used that way
2. Waste:
   
   1. Creating new quary removing minerals, or
   2. Cutting timber for sale w/out authorization:
      
      1. if premises were not previously used for that commerical purpose

Question 80

A profit is an easement:

• that allows the holder of the profit to:

Answer 80

A profit is an easement:

• that allows the holder of the profit to sever and to remove something from the land:
  
  • E.g. right to go onto another’s land to hunt, fish, or to remove natural resources such as sand, oil, or gravel, petroleum, minerals, and timber.

Question 81

Pertinent Easement:

Answer 81

Pertinent easement:

• Runs with the land whenever it is conveyed
• MAY only be use to serve the dominant estate:
  
  • CANT be assigned to stranger, or expanded by dominant owner for the use of nearby lands
• IF dominant estate is subdivided:
  
  • CANT unreasonably increase the burden on the serviant estate
  • (NYAA-654)

Question 82

Easement in Gross:

Answer 82

Easement in Gross:

• Easement that personally benefits easement holder,
  
  • as opposed to a dominant estate:
• Alienable IF:
  
  • Commercial in nature
    
    • E.g. Railroads

Question 83

When does a purchaser of a serviant estate take the realty subject to easements:

Answer 83

Subsequent purchaser of serviant estate takes realty subject to any easements

• over the land of which there was CIA notice:
  
  • ​Constructive, Inquiry, or Actual
  • E.g. if you saw wires you should have “INQUIRED”

Question 84

An easement, profit, or covenant running with the land:

• MAY be extinguished by A CRAM:

Answer 84

A: ABANDONMENT

• That clearly indicates an intent to abandon the easement
• Nonuse alone = NOT abandonment (NYAA-650, ess5 7/08)

C: CONDEMNATION

• by immanent domain of serviant estate
• R: Writing that RELEASES the easement
  
  • Signed by dominant estate

A: ADVERSE possession of the serviant estate

• ONLY if it was in hostile manner preventing easements use
  
  • (NYAA-629)

M: MERGER by common ownership of 100%

• One can not have easement profit, or covenant over her own property. (NYAA-651, ess4-2/10)

Question 85

Equity will NOT enforce (no injunction) a CRL where:

• 3

Answer 85

Equity will NOT enforce (no injunction) a CRL where:

• 1) Enforcement would be worthless:
  
  • neighborhood has changed
  • CT will use LIE comparative hardship test (1st handout p.7)
• 2) P unreasonably delayed in seeking to enforce the servitude,
  
  • i.e. laches
  • OR
• 3) Enforcement would violate public policy
  
  • e.g. rest cov limiting land use to single family home where the gov sought to establish a community residence for intellectually challenged people.

Question 86

Equitable Mortgages:

• Equitable mortgage security Deed:
• Deed in Trust:
• Installment Sales Contract:

Answer 86

Equitable Mortgages:

A transaction that has the intent but NOT the form of a mortgage:

o Equity will enforce it as if it was a mortgage

o E.g. D was desperate to borrow $50K for bail:

§ D went to N to borrow money

§ N proposed 2 transactions to secure the loan:

ú 1) Option for N to buy D’s realty, OR

ú 2) Deed from D to N to secure the loan

§ Under 1)

ú D would execute $50K note and simultaneously give N an option to buy D’s land at a substantially reduced price in the event that D defaulted on the loan.

ú (If land was worth $150K = N could buy it for $25K if D defaulted)

· Equity treats this as an equitable mortgage

o requiring N to first foreclose in order to wipe out D’s equity of redemption. (NYAA-673)

§ Under 2)

Equitable mortgage security Deed:

· D would give N a deed to land either to hold or immediately record as security for the $50K loan:

· MUST 1st be foreclosed to extinguish D’s equity of redemption

Deed in Trust:

· When deed is held in escrow by 3rd person who is authorized to record the deed if D defaults

o Usually there is no mention of the indebtedness OR of the retransfer of the land back to D when debt is fully paid.

· Neither SOF or Parole evidence rule

o prevents oral proof of equitable mortgage. (OF MICE, Lect 10)

Installment Sales Contract:

o 3rd equitable mortgage arises:

o B buyer of real prop does not go to bank but instead finances the purchase price with Seller

o By entering a Installment Sales Contract for ___ years allowing B to take possession of prop while paying off the purchase price:

o S agrees to execute a deed

§ ONLY when purchase price is fully paid

o Usually the installment Sales K contains a forfeiture clause in the event of B’s default terminating the K

§ Allowing S to retain all prior payments made by B

ú Either as rent or liquidated damages

§ HOWEVER:

ú When K was signed:

· S had legal title,

· B = equitable title

ú If B defaults: S MUST foreclose the equitable mortgage to extinguish B’s equitable title and equity of redemption

·

Question 87

Mortgage Substitutes:

   Clogging Doctrine:

Answer 87

Mortgage Substitutes:

o Lenders or sellers of real property who ordinarily would take back a mortgage have created mortgage substitutes in an attempt to prevent (clog) equity redemption in the event of default.

§ An attempting to circumvent the mortgagors equity of redemption as well as to avoid the huge waste of time and expense of a foreclosure sale:

· Clogging Doctrine:

o Renders unenforceable any doc intended to prevent the borrowers equity of redemption

o Deed given by borrower or contract of sale executed to secure a loan = treated as mortgage (by equity)

§ MUST first be foreclosed

Question 88

Equitable exoneration:

Answer 88

Estate will not have to pay the debt of the deceased:

• Take prop free from mortgage

Question 89

Landlord Tenants:

• SOF requirements:

Answer 89

Lease period for longer than 1 year MUST:

· Be in writing

· Signed by party to be charged (or agent , i.e. power of attorney signed by O giving agent authority)

· If lease is required to be in signed writing:

o Agent’s authority to sign the lease must also be in signed writing

· If lease can be oral: (1 year or less)

o Agent’s authority from principal can be oral

Question 90

3 types of tenancy periods:

1. Tenancy for years:
2. Periodic Tenancy:
3. Tenancy at Will:

Answer 90

3 types of tenancy periods:

1) Tenancy for years:

• Lease fixes beginning and end dates
  
  • e.g. “3/1/08 – 3/17/15”
• NO termination notice is necessary
  
  • b/c Fixed in lease
• MBE (NOT NY):
  
  • T holding over after expiration date (even 1 day):
  • L has option to renew lease for similar term
    
    • Even though clearly not T’s intent

2) Periodic Tenancy:

• Lease for repeated similar period of 1 year or less
  
  • E.g. Month to month
• Automatically renews:
  
  • UNLESS 1 party gives notice of termination
    
    • Minimum time for termination notice =
      
      • Time period for which rent is paid
        
        • e.g. 1 month
      • Unless rent is paid yearly = 6 months notice required

3) Tenancy at Will:

• NO fixed duration
• Terminable by either party OR
  
  • By death of either party, OR
• Automatically terminates = IF 1 party attempts to assign the lease

Question 91

Emblements:

• Tenancy of indefinite duration:
• Tenant has no right of emblements IF:

Answer 91

In Tenancy of indefinite duration:

• Tenant has right of emblements when tenancy is terminated:
  
  • May go on land to harvest annual crops planted by T.
    
    • i.e. Life estate, Tenancy at Will, or Periodic tenancy
  • If is freely terminable by LL

Tenant has no right of emblements IF:

• Tenant for years that has fixed ending date, or
• holdover at sufferance, or
• T breached lease, or
• T terminated the lease:

Question 92

Landlord Tort Liability:

• Duty to prevent crime:
• POLICE = Exceptions for out-of-possession LLs

Answer 92

Landlord Tort Liability:

• Lease of entire prop = sale of realty to T for term fixed in the lease

LL have implied but limited duty to provide:

• Security to prevent foreseeable crimes:
  
  • i.e. installing peep hole, locks on outside door, or lighting dark entryway.
• Foreseeable = prior similar crimes MUST have occurred in that building

Out-of-possession LL = NOT liable for injuries on premises

EXCEPT for POLICE:

• P: Where lease is for PUBLIC purpose: (i.e. store)
  
  • LL must inspect and repair dangerous conditions
    
    • Before surrendering property to T
• O: Injuries that arise OUTSIDE the premises IF:
  
  1. Proximately caused by dangerous defect on leasehold
  2. Of which LL should have been aware:
  3. At the time leasehold was surrendered to T
     
     • E.g. Hanging Gutter, defective sign falling onto sidewalk
• L: Injuries caused by LATENT defects hidden IF:
  
  1. LL should have known existed, AND
  2. T had NO reasonable time to discover and repair
• I: T’s INTENDED use created unreasonable risk of harm to others IF:
  
  1. L was aware of T’s intended dangerous use
  2. When prop was turned over to T
  • E.g. LL knows T has dangerous dog when signing lease
• C: Injury occurred in COMMON passageway:
  
  • ONLY if LL has multiple leased units in same building
• E: LL EXPRESSLY covenants in lease to make repairs:
  
  • BUT doesn’t AND
    
    • Disrepair proximately causes personal injury
  • LL only liable IF he had:
    
    • Actual notice of defect: (T told him) OR
    • Constructive notice:
      
      • defect was visible and
      • existed for long enough time period that
        
        • reasonable LL should have known of its existence

Question 95

Entrusting Rule:

Answer 95

Entrusting Rule:

A party receiving goods acquires only that title possessed by the party handing it over.

• Bailee gets stolen goods from Bailor = Bailee has no no title (Bailor had no title)
• Original Owner will prevail: even if Bailee sells to bona fide purchaser in course of business.
  
  • If party is a Bailee solely for benefit of Bailor:
    
    • Liability only for gross negligence.
• Bailor has choice of 2 claims against Purchaser: (both 3 year SOL)
  
  • 1) Conversion & money damages, OR
  • 2) Replevin to seek return of the ring
• Purchaser has cause of action against Bailee for breach of implied warranty of title.