• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/234

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

234 Cards in this Set

  • Front
  • Back
What are the landord's duties to tenant?
1) Duty to deliver possession, 2) Implied Covenant of Quiet enjoyment 3) Warranty of Habitability 4) No Retaliatory eviction
What is L's duty to deliver possession?
Most states require L to put T in actual possession of the premises at the beginning of the leasehold term. **eg, L is in breach if he has not evicted the holdover tenant.
What is L's duty to provide quiet enjoyment?
Every lease (residential and commercial) has an implied covenant that neither L or a paramount title holder will interfere with T's quiet enjoyment and possession.
How will the implied covenant of quiet enjoyment be breached?
1) Actual wrongful eviction - T excluded from the entire premises 2) Partial eviction - tenant is excluded from part of the premises 3) Constructive eviction - L does something or fails to do something that renders the property uninhabitable. By SiNG: Si – Substantial Interference (attributable to L's actions or failure to act-doesn't have to be permanent) N – Notice (T gave notice of problem, and L failed to respond) G – Goodbye (T vacated within a reasonable period oftime after L failed to fix problem)
NOTE - L is generally not liable for acts of other tenants, except L must not permit a nuisance on the premises and L must control common areas
What's L's duty concerning the implied warranty of habitability?
What types of leases does it apply to?
Examples?
If L doesn't keep the home up to local housing code, T may: 1) Make repairs and offset the cost from rent 2) Terminate the lease 3) Abate rent to an amount equal to the fair rental value in view of the defects 4) Remain possession, pay in full and sue for damages
-IWofH only applies to RESIDENTIAL leases (as opposed to IW of quiet enj)
-e.g. - no heat in winter, no plumbing, no running water
What is L's duty against retaliatroy eviction?
If T lawfully reports L for housing code violations, LO is barred from penalizing T (e.g. raising rent, ending the lease, harassing T)
When can T transfer his leasehold interest?
Absent express restriction in the lease, T may freely transfer his leasehold interest in whole or in part.
What is an assignment?
2) In NY, does T have to get L's consent to assign? What are T's remedies if L unreasonably witholds consent to assign?
1)A complete transfer by the T of the remaining term of the least
2) Unless the lease provides otherwise, a residential T may not assign without L's WRITTEN CONSENT. L can UNREASONABLY withhold consent to assign, and L's sole remedy is to seek release from the lease. However, if T is in a residential building with four or more units, consent cannot be unreasonably withheld.
What is a sublease?
Transfer where T retains any part of the remaining term (other than the right to reenter upon breach).
What are the consequences of assignment by T to another T?
An assignee stands in the shoes of the original tenant, in a direct relationship with L. (privity of estate)
Does the original tenant remain liable for rent after assignment?
Yes, because the original tenant is in privity of contract.
Can an assignee reassign his leasehold interest?
Yes and his privity of estate ends. (ie, not liable for a subsequent assignee's failure to pay)
What are the consequences of a sublease?
The sublessee is a tenant of the original lessee and pays rent directly to the original lessee. **Sublessee not personally liable to to L bc L and sublessee are in neither privity of estate nor privity of contract
What is the effect on the sublease if L terminates the lease?
The sublease automatically terminates with the lease.
What are the rights of the sublessee?
Cannot enforce any covenants made by L in the main lease except for implied habitability.
1)How are covenants against assignment or sublease construed?
2) Can L object to future transfers by T after L consents to one transfer by T?
Generally strictly construed against the landlord.
2) Once L consents to one transfer by T, L waives right to object to future transfers by that T, unless L expressly reserves the right
What is the effect of a transfer in violation of the lease?
If T assigns or subs in violation of the lease, the transfer is not void. L may only terminate lease or sue for damages.
What is the effect if Landlord assigns the lease to another landlord?
1) The assignee (new L) is liable for all covenants in the lease 2) The original L remains liable on all covenants in the lease
What is the tort liability of L?
Caveat Lessee - let tenant beware -Landlord has no duty to make the premises safe except for the CLAPS exceptionsC – Common Areas L – Latent Defects Rule (L must warn T of hidden defects that L has, or should have, knowledge of A – Assumption of Repairs (Once undertaken, L must complete repairs with reasonable care) P – Public Use Rule (when L leases public spaces that obviously cannot be repairs by T) S – Short Term Lease of Furnished Dwelling (L responsible for any defective condition that proximately injured T)
What is L's general duty of reasonable care?
Many courts also now hold L owes a general duty of reasonable care toward residential tenants, and is liable for negiligence in failing to repair a defect he had notice of and opportunity to repair.
DON"T FORGET TO MEMORIZE SERVITUDES CHART ON 51
What is T's tort liability?
See Torts.
What is a fixture?
A chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty. Eg, a house
How do fixtures pass?
With the ownership of the land.
What are nonpossessory interests in land?
Easements, profits, covenants, and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else.
What is an easement?
A grant of nonpossessory property interest that entitled its holder to some form of use or enjoyment of another's land (called the "servient tenement") **Eg, lay pipe, access a road, etc.
How long does an easement last?
It is presumed to be of perpetual duration unless the grant specifically limits the interest.
What are the 2 types of easements?
1) Affirmative - holder make affirmative use of the servient tenement 2) Negative - entitles the holder to compel refrainment **Negative easements are really covenants.
Generally only four categories: LASS: Light, Air, Support, Stream water from artificial flow (minority states can get neg. easement for scenic view)
NOTE - negative easements can only be created EXPRESSLY, by WRITING SIGNED BY GRANTOR - there is no natural or automatic rt to neg easement
What is an easement appurtenant?
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land.
What is necessary for an easement to be appurent?
two tracts: 1) the dominant tenement (the estate benefited by the easement), 2) and the servient tenement (the estate subject to the easement right).
Does an easement appurtenant pass with transfer of the land?
Yes, regardless of whether it is mentioned in the conveyance.
What is an easement in gross?
It confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment in land. Servient land is burdened,but there is no benefited or dominant tenement. eg, right to erect a billboard
Are the two easements transferable?
Appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance (also passes with servient estate, unless new owner is a BFP without notice of easement
An easement in gross is not transferrable unless it is for commercial purposes
How is an easement created?
Negative easement can only be created expressly. Affimative easements can be created by (PING): P - Prescription I - Implication N - Necessity G - Grant or Reservation
How is an easement created by express grant?
It is in writing and signed by the holder of the servient tenant. **Unless it doesn't fall within the SOF
How is an easement created by express reservation?
When a grantor conveys title to land but reserves the right to use the land for a special purpose. **Under the majority view the easement can only be reserved for he grantor.
How is an easement created by implication from existing use?
An easement may be implied if: 1) Prior to the division of a single tract, 2) An apparent and continuous use exists on the “servient” part, 3) Reasonably necessary for the enjoyment of the “dominant” part, and 4)Court determines that the parties intended the use to continue after division.
How is an easement created by implication w/o any existing use?
1) Subdivision - lots are sold w/ reference to a recorded map that shows streets leading to lots, buyers have an implied easement to use the streets 2) Profit a Pendre - Holder has implied easement to cross over the servient land and to use it as reasonably necessary to extract the product
How is an easement created by necessity?
Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line. **The owner of the servient parcel has the right to locate the easement.
How is an easement created by prescription?
Acquiring an easement by prescription is analogous to acquiring property by adverse possession. **Same requirements as adverse possession (Continuous use [for 10 years in NY], open and notorious, actual use, hostile use without consent)
What is the scope of an easement?
Set by the terms of the grant or the conditions that created it.
In the absence of specific limitations in the grant, courts assume the easement was intended to meet both present and future needs of the dominant tenement. **eg, easement may widen to accommodate bigger cars
What is the remedy for misuse of an easement?
The appropriate remedy for the servient owner is an injunction against use.
How can an easement be terminated?
END CRAMP: E – Estoppel due to servient owner materially changing his position in reasonable reliance on oral expressions N – Necessity- easements created by necessity end when the need ends. D – Destruction (of the servient land, other than through willful conduct of the servient owner) C – Condemnation or involuntary destruction of the servient estate R – Release (deed of release from the owner of the easement to the owner of the servient land) A – Abandonment (holder demonstrates by physical action an intent to abandon the easement) M – Merger Doctrine (If the same person acquires the easement and the servient estate, unity of ownership) P – Prescription (servient owner can extinguish by interfering with it in accordance with elements of adverse possession)
1)What is a license?
2)Are Licenses subject to SOF?
3) When can licenses be taken away?
4) What are the classic license cases?
1)A mere privilege to enter another's land for some delineated purpose **This is the weakest form of servitude
2) No. Thus, you do not need a writing to create a license.
3) Licenses are freely revocable at the will of the licensor unless estoppel applies (only applies when licensee has invested substantial money or labor in reasonable reliance on continuation)
4) Tickets - create freely revocable license (can stop you from coming in);
Neighbors talking by the fence - "you can have that right of way" - unenforceable bc violates SOF, so creates a freely revocable license
What are Profits?
Servitude entitling the holder of the benefit to take some resource (soil, timber, materials, fish, etc.) from the servient estate.
What are the rules governing creation, alienation, and termination of profits?
They are the same as with easements.
What is a covenant?
What separates covenants from easements?
What are the two types of covenants?
The covenant is a promise to do or not do something related to land. It is UNLIKE the easement bc it is not the grant of a property interest, but rather a CONTRACTUAL LIMITATION or promise regarding land.
Covenants can be NEGATIVE (promise to to refrain from something related to land) or AFFIRMATIVE (promise to do something related to land).
How do you know whether to construe the given promise as a covenant or as an equitable servitude?
On the basis of the remedy that P seeks. When P seeks money damages, sonstrue as a covenant. Seeks injunction, construe as equitable servitude.
What is a real covenant?
Written promise to do or not do to something on the land.
Do real covenants run with the land?
Yes, which means that subsequent owners can enforce or be burndened by the covenants.
What are the requirements for a burden to run?
WITHN: A successor in interest will be bound by the covenant if: W – Writing (original promise must be in writing) I – Intent to run T – Touch & Concern (the covenant must touch and concern the land (ie, the promise must affect the parties' legal relations as landowners and not simply as memebers of the community at large)H – Horizontal +Vertical Privity (the original parties had horizontal privity and vertical privity) N – Notice (successor had notice of the promise at purchase)
What are the requirements for BENEFITS to run?
WITV: W – Writing (original promise was in writing)I – Intent for benefit to run T – Touch & Concern (Covenant must touch and concern the land (ie: promised performance enhances enjoyment of the land)) V – Vertical Privity (some non-hostile nexus between B1-B2 – NOTE - horizontal privity is not required for the benefit to run- this is why it's easier for benefits to run than burdens)
Do promises to pay money in connection with the land run with it?
Yes, if the money is to be used in connection with the land (eg: homeowners fees.
What is the remedy for breach of a real covenant?
Money damages are the only remedy. **If an injunction is sought, the promise must be enforced as as equitable servitude.
How can a covenant be terminated?
As with all other servitudes, a covenant may be terminated by 1) a written release 2) merger 3) condemnation or destruction
What is an equitable servitude?
A covenant that, regardless of whether it runs with the land, equity will enforce against the assignees of the burdened land who have notice of the covenant.
How is as equitable servitude remedied?
Usually by injunction.
What is the difference between a real covenant and equitable servitude?
Basically the difference is the remedy that can be sought. To seek an injunction, the requirements for enforcement as an equitiable servitude must be met.
How is an equitable servitude created?
What kind of privity is needed to bind successors?
WITN: W – Writing (original promise should generally be in writing) I – Intent that promise was enforceable by and against assignees T – Touch Concern (Covenant must touch and concern the land - promise affects parties as landowners) N – Notice (assignees of the burdened land had notice of the promise)
Privity is NOT required to bind successors
when can an equitable servitude be implied?
What are the two requirements?
Only a negative equitable servitude can be implied from a common scheme for developing a subdivison. (Court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant)\
Two elements of the general or common scheme doctrine: 1) When the sales began, the subdivider had a general scheme of residential development which included defendant's lot, and 2) the D lotholder had notice of the promise contained in the prior deeds
What are the requirements for burdensome equitable servitude to run?
1) Covenanting parties intended that the servitude be enforceable by and against assignees 2) Successor of the promisor has actual, inquiry, or record notice of the servitude and 3) Covenant touches and concerns the land
What are the requirements for beneficial equitable servitude to run?
promisee’s successors if: 1) the original parties so intended, and 2) the servitude touches and concerns the benefited property.
What are the three forms of notice potentially imputed to D in a common scheme?
AIR - Actual notice (D had literal Kn. of promise), Inquiry notice (the neighborhood conforms to the common restriction), Record notice (sometimes imputed to buyers on the basis of the publicly recorded documents) (Note - Cts are split on whether a subseq2uent buyer is on record notice of the content of prior deeds transferred to others by a common grantor - NY takes the view that the subsequent buyer does NOT have record notice of those prior deeds)
What are the defenses to equitable servitudes?
1) Person seeking enforcement is violating a similar restriction in his own land. 2) Benefited party acquiesced in a violation of the servitude by one burdened party 3) Benefited party acted in a way to make it reasonable to believe the servitude was abandoned 4) Fails to bring suit a reasonable time 5) Change to the area has been so significant that enforcement would be inequitable (mere pockets of limited change are NEVER enough)
What is adverse possession?
A way to acquire real property via operation of the statute of limitations for trespass. Ie: If an owner does not, within the statutory period, take action to eject the trespassor, title vests in that person.
What are the requirements for adverse possession?
Is the posessor's subjective state of mind relevant on the MBE? NY?
COAH:C – Continuous (uninterrupted for statutory period) O – Open & Notorious (sort of possession that the usual owner would make under the circumstances) A – Actual and Exclusive Possession H – Hostile (no owner's permission to be there)
NOTE - on MBE possessor's subjective state of mind is irrelevant (doesn't matter if P knew it wasn't his land),but on NY the possessor must have a good faith belief that the land is indeed his
When does the SOL begin to run?
When the owner first can bring suit. NOTE -The statute of limitations will not run against a true owner who is afflicted by a disability at THE INCEPTION OF THE ADVERSE POSSESSION. Common disabilities include insanity, infancy, imprisonment
What constitutes open and notorious possession?
Occupation must be sufficiently apparent to put the true owner on notice of tresspass.
What constitutes continuous possession?
Constant use by the claimant is not required as long as possession is of a type that the usual owner would make. **Need not be by one person either. Can tack onto predecessors but privity is required - for tacking, privity is satisfied by any nonhostile nexus such as blood, contract, deed, will - tacking is not allowed when there has been ouster
What is effect of disability of the owner?
The SOL does not begin to run if the true owner was under some disability to sue when the COA first occurred. (eg, minority, imprisonment, etc). **Note: If the disability arises after the COA has accrued, the SOL will not be tolled.
What is the effect of adverse possession on future interest?
The SOL does not run against a future interest holder until the interest is possessory.
What is the adverse possessor's duty with regard to restrictive covenants?
If an adverse possessor uses the land in violation of a restrictive covenant, she takes free of the covenant. Otherwise she takes title subject to it.
What land cannot be adversely possesed?
Title to government-owned land and land registered under a Torrens system.
What is conveyancing?
The process of transferring real property, which usually consists of: 1) A land sale contract (which endures until closing), and 2) Closing (when the deed becomes operative).
What is the land sale contract? What are the requirements of a land contract?
Contract that preceeds most transfers of land.
Contract must be in writing signed by the party to be bound (D) It must describe blackacre and it must state some consideration
What happens with the amount of land recited int he land K is more than the actual size of the parcel?
Specific performance with pro-rata reduction in purchase price
What is the one exception to the statute of frauds?
The Doctrine of Part Performance - if you have 2 of 3 equity will decree specific performance of an oral K for the sale of land:
1) B takes possession of Blackacre
2) B pays all or part of the purchase price
and/or 3) B makes substantial improvements
What is the doctrine of equitable conversion?
What does this doctrine mean in regards to risk of loss?
Once a contract is signed, equity regards the buyer as the owner of the real property (subject of course to the condition that he pay the purchase price at closing). **The legal title that remains in seller is considered held in trust for the buyer.
If int he interim between K and closing Blackacre is destroyed through no fault of either party, B bears the risk of loss unless the K says otherwise) (NOTE- in NY, however, so long as B is without fualt, risk of loss remains with S until B has title or remains in possession)
What are the two implied promises in every land contract?
1) Seller promises to provide marketable title
2) Seller promises not to make any false statements of material fact
What is marketable title?
Every contract contains an implied warranty that the seller will provide a title reasonably free from doubt AT THE CLOSING (title free from law suits and threat of litigation)
What are the three circumstances that will render title unmarketable?
1) Adverse possession - if even a part of the title rests on adverse possession, it's unmarketable
2) Encumbrances - servitudes, mortgages, or presence of an outstanding lien render title unmarketable (but S has the rt to satisfy them with the proceeds of the sale)
3) Zoning violations (render unmarketable)
3)
What is the effect of liens, restrictive covenants, and easements on marketability?
Generally render the title unmarketable.
When is marketability measured?
Generally the date of closing. Date of last payment in a land installment contract **If an MBE answer refers to marketability sometime after closing it usually wrong.
What is the remedy if the title is not marketable?
1) The buyer must notify the seller and give him reasonable time to cure the defects 2) If seller fails to cure, buyers remedies include rescission, damages, specific performance w/ abatement, and a quiet title suit.
Does a quitclaim deed affect the warranty to provide marketable title?
No, it does not let the seller off the hook for defects.
In regards to the seller's implied promise not to make any false statement of material fact, must the S also affirmatively disclose latent material defects?
The majority of states hold S liable for failing to disclose latent material defects (liable for material lies and omissions)
Are disclaimers of liability effective?
General disclaimers in the sales contract are not sufficient to overcome a seller's liability for fraud, concealment, or failure to disclose.
Does a land contract contain an implied warranty of fitness? What about habitability?
Land K contains no implied warranties of fitness or habitability (caveat emptor)
Exception - implied warranty of fitness applies to the sale of a new home by a builder-vendor
What is the generally rule for time of performance of a land sale contract?
Courts presume time is not of the essence(ie, closing date is not absolutely binding if tendered w/in a reasonable time)
When will the time is not of the essence presumption be overcome?
1) The contract so states, 2) The circumstances indicate that was the intent, or 3) One party gives the other notice that time is critical.
What is the liability if time is of the essence and a part fail to render performance on closing?
The party who fails to tender performance is in breach and may not enforce the contract.
What type of conditions are obligations under a land sale contract?
Concurrent, meaning neither party is in breach until the other tenders performance. **If neither party tenders on closing date, the date is extended until one of them does
What are the remedies for breach of a sale contract?
Damages or specific performance. **Damages are the difference between K price and market value on date of breach.
What is the sellers liability for defective property?
Seller may be liable for existing building defects on grounds of misrepresentation, active concealment, or failure to disclose. **No implied warranty of quality or fitness for purpose
When are real estate agents entitled to commission?
The modern trend is to award commission only if the sale actually occurs or fails because of the fault of the seller.
What is the controlling document as CLOSING?
the deed
What is the deed?
What requirements must be met for the deed to be lawfully executed?
By what standard must the deed describe the land?
Deeds transfer the title to an interest in real property. It must be Lawfully Executed and Delivered
1) Be in writing, 2) Signed by the grantor, and 3) Reasonably identifies the parties and the land. (does not have to recite consideration, nor must consideration pass to make a deed valid)
The deed does not have to be perfect- law requires only an unambiguous description
What are void deeds? Voidable deeds?
When will a void or voidable deed be set aside?
1) Void deed will be set aside even if the property has passed to bona fide purchaser 2) Voidable deeds will be set aside by the court only if the property has not passed to a bona fide purchaser. **Void deeds include those that are forged, obtained by fraud, etc. Voidable deeds are those by minors, incapacitated, duress, etc.
What would happen if a joint owner attempted to convey property by forging the signature of the owner?
1) The conveyance would be valid as to the interest of owner with valid signature 2) Void as to the other owner
When may a deed be set as a fraudelent conveyance?
It may be set aside by the grantor's creditors if it was made: 1) With the actual intent to hinder, delay, or defraud or 2) Without receiving reasonably equivalent consideration and debtor was insolvent.
What is the order of priority where descriptions are inconsistent?
1) Natural monuments, 2) Artificial monuments 3) Courses (ie, routes) 4) Distances 5) Name 6) Quantity
When is a deed effective?
Only after it has been delivered and accepted.
When is the delivery requirement satisfied?
Grantor physically transfers the deed to grantee -Note - delivery does not necessarily require actual physical transfer of the deed itself - test is wheter G had the PRESENT INTENT TO BE BOUND irrespective of whether the deed itself has been literally handed over
1)What happens if the recipient expressly rejects the deed?
2) What happens if a deed is absolute on its face, but is transferred to grantee with an oral condition?
1)defeats delivery
2)The oral condition drops out and delivery is done
What is "escrow?
What is the advantage of using escrow?
a contract, deed, bond, or other written agreement deposited with a third person (escrow agent), by whom it is to be automaticallly delivered to the grantee or promisee on the fulfillment of some condition.
If G dies or becomes incompetent before the express conditions are met, title will still pass from escrow to grantee once the conditions are met
What are the three types of deeds?
1) Quietclaim
2) The general warranty deed
3) the statutory special warranty deed
What is a quietclaim?
It contains no covenants (G isn't even promising that he has title to convey)(exception - G promises marketable title at CLOSING)
NOTe - this is the worst deed a buyer could hope for
What is a general warranty deed?
What are the covenants included in a general warranty deed
Warrants against defects in title, including those due to G's predecessors (best deed B can hope for)
1) SEISIN (grantor promises he owns the estate he now transfers) 2) RIGHT TO CONVEY (he has the power to make the transfer 3) AGAINST ENCUMBRANCES (no servitudes or liens on the land) 4) QUIET ENJOYMENT (grantee won't be disturbed in possession by a third party's lawful claim of title) 5) WARRANTY (grantor promises to defend grantee should there be lawful claims of title asserted by others) 6) FURTHER ASSURANCES (grantor promises to do whatever reasonably necessary in future to perfect title)
What are the 6 covenants included in a general warranty deed?
When are each of the covenants breached?
1) SEISIN (grantor promises he owns the estate he now transfers) 2) RIGHT TO CONVEY (he has the power to make the transfer 3) AGAINST ENCUMBRANCES (no servitudes or liens on the land) 4) QUIET ENJOYMENT (grantee won't be disturbed in possession by a third party's lawful claim of title) 5) WARRANTY (grantor promises to defend grantee should there be lawful claims of title asserted by others) 6) FURTHER ASSURANCES (grantor promises to do whatever reasonably necessary in future to perfect title)
The first three covenants are present covenants- breached at the time of delivery
The last three are future covenants -not breached until grantee is disturbed in possession
What covenants are included in the statutory special warranty deed?
Grantor promises (ONLY on behalf of himself): 1) He hasn't conveyed land to anyone other than grantee, AND 2) The land is free from encumbrances made by the grantor (in NY it's called the "bargain and sale deed")
What is the effect of retention of interest by grantor or conditional delivery?
It indicates lack of intent, and the title will not pass even if the deed is executed because there's no delivery. **A properly executed and delivered deed that provides title will not pass until grantor's death is valid and creates a future interest.
What is acceptance of the deed?
Completes a conveyance and usually is presumed after delivery.
What is dedication?
Transfer of land to a public body by written/oral statement, map showing land, or opening the land for public use.
How may a dedication be accepted?
1) formal resolution 2) approval of plot or map 3) actual assumption of maintenance or improvements
What are the 3 types of deeds?
1) general warranty deed 2) special warranty deed 3) quitclaim deed **Real covenants are different in that they do not relate to title.
What are covenants for title?
Covenants that relate to title and are usually found in deeds. *Real covenants are different in that they do not relate to title.
What are the usual covenants in general warranty deeds?
1) Covenant of Seisin (title and possession) 2) Covenant of Right to Convey 3) Covenant against encumbrances 4) Covenant for quiet enjoyment 5) Covenant of warranty 6) Covenant for further assurances
Who may the last grantee sue if he is evicted by lawful claim of title?
Anyone up the line.
What a special warranty deed?
In many states, using the word grant in a deed creates assurances that: 1) the grantor has not conveyed the same estate or interest to anyone else, and 2) that the estate is free from encumbrances made by the grantor.
What is a quitclaim deed?
A quitclaim deed releases whatever interest the grantor has and no covenants of title are included or implied.
What is estoppel by deed?
If the grantor purports to convey an estate in property that he does not then own, his subsequent acquisition of the estate will injure to the benefit of the grantee. **Not applicable to quitclaim deeds
How does estoppel by deed affect subsequent purchasers?
If the grantor transfers his after-acquired title to a bona fide purchaser for value, the BFP will prevail over grantee.
What is the original grantee's remedy in estoppel by deed?
Can accept title or sue for damages for breach of covenant.
What are recording acts?
Protects all bona fide purchasers from secret interests previously created and provide a mechanism for earlier grantees to give notice through recordation.
What do recording act statutes require?
That a grantee record his deed to put others on notice.
What can be recorded?
Any instrument creating or affecting an interest in land can be recorded, provided it is notarized.
Who has the burden of proving qualification for protection under a recording act?
The subsequent taker.
Hypo: O conveys Blackacre to A. Later, O conveys the same parcel to B. O skips town. Who owns Blackacre?
Depends on what type of recording system jurisdiction we are in: 1) Notice jurisdiction: If B is a BFP, B wins regardless of whether or not she records first 2) Race-notice jurisdiction: If B is a BFP, she wins only if she recorded first (NY is a race-notice jurisdiction)
What protection is provided by a notice statute?
"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded. If, at the time B takes, he is a BFP, he wins, regardless of whether A recorded before B, or if B never records. However, if A had promtly recorded before B takes, B's BFP status is defeated.
What protection is provided by a race-notice statute?
"Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded. To prevail, B must 1) be a BFP and 2) win the race to record. Note - NY is a race-notice jurisdiction
What protection is provided by a race statute?
Whoever records first wins and notice is irrelevant. **only 2 states use race statutes.
Who is protected by recording acts?
Only bona fide purchasers and mortgagees are protected under notice and race-notice statutes.
What are the requirements to be a BFP?
Must be: 1) A purchaser, 2) Without actual or constructive notice that someone else got there first 3) Pays valuable consideration
When is a purchase FOR VALUE?
1) Okay if less than FMV, but still requires substantial pecuniary consideration 2) Donees, heirs and devisees do NOT qualify as BFPs (recording statutes do not protect donee's heirs or devisees unless the shelter rule applies)
When is a person said to be on constructive notice?
1) Inquiry notice -References in recorded instruments to unrecorded transactions, etc put a purchaser on notice to make reasonable inquiries 2) Record notice -If the deed is recorded in the chain of title (in a manner that a sercher could resonably find it), a subsequent pruchaser will be held to have record notice
What is record notice?
A buyer is on notice of properly recorded deeds with in the chain of title. **Chain is generally established by through a title search of grantor-grantee index
To give record notice to subsequent takers, how must the deed be recorded?
It must be recorded within the chain of title
1)How does one establish chain of title?
1) in most states, through a title search of the grantor-grantee index
What is the shelter rule?
One who takes from a BFP will prevail against any entity that the transferor would have prevailed against. e.g. O conveys to A, who does not record. O then coveys to B who does record. B conveys to C. In A v. C, C wins in both notice and race-notice states bc of shelter rule (C steps into shoes of B)
What is wild deed?
A recorded deed that is not connected to the chain of title. **Incapable of giving constructive notice bc a subsequent purchaser could not feasibly find it. e.g. O sells BA to A who doesn't record. A sells to B, who records A-to-B deed. This is a wild deed. bc it has a grantor unconnected to the chain of title (O to A)
What is Estoppel By Deed?
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest. e.g. O thinks about conveying to A, decides not to, but A conveys to B anyway. O conveys to A later. A can't argue that he never conveyed the land to B.
What is the effect of a late recording?
A deed recorded after the grantor has passed title through a subsequent instrument is not constructive notice in most states (but is in some race notice jurisdictions)
What is the effect of a recorded deed received from a grantor who had no title when conveyed but later obtains title?
1) Most court say it does not impart constructive notice to subsequent purchasers (BFP willl win on the grounds that the deed in not in his chain of title) 2) Minority protect the grantee over BFP on an estoppel by deed theory.
What is an effect of a mistake by the recorder?
It is considered recorded when filed with the office, regardless of whether properly indexed. **BFP may have cause of action against the recorder's office.
What is mortgage?
Any conveyance of land intended by the parties at the time of the making to be collateral for the repayment of a debt
Thus, it is the union of two elements - a debt and the voluntary transfer of a lien in debtor's land to secure the debt (debtor=mortgagor, creditor=mortgagee)
What is the statute of frauds for a mortgage?
What is a mortgage that meets the statute of frauds called?
To be enforceable, a mortgage must be in writing and signed by the mortgagor or an agent.
It's called a "legal mortgage" aka "mortgage deed, note, security interest in land, deed of trust, or sale/leaseback"
What is an equitable mortgage?
Certain security transactions in land that do not satisfy the requirements of legal mortgages may still be enforceable as equitable mortgages. Landowner needing to raise money may sell land to a person who pays cash and may give the lender an absolute deed, rather than mortgage.
Factors indicating equitable mortgage
a. Existence of a debt or promise of payment by deed’s grantor
b. Grantee’s promise to return land if debt is paid
c. Fact that amount advanced to grantor/debtor was much lower than the value of the property
d. Degree of grantor’s financial distress
e. Parties’ prior negotiations
What is the priorty for an equitable mortgage?
An equitable mortgage is entitled to preference over subsequent judgment creditors, but will be cut off by a bona fide purchaser.
When well a deed conveyancing property be construed as a mortgage?
If there is any written instrument that makes it appear that the legal deed was intended to create a mortgage. **Even in the absence of such other written instrument, a mortgagor may prove that there was such an intention via parole evidence.
What may a mortgage secure?
Any existing monetary obligation or obligation capable of being reduced to equivalent. **Includes preexisting debts and debts to one other than the mortgagro
Can a mortgage secure advances to be made in the future?
Yes.
What property is subject to a mortgage?
Any transferable interest in real property may be mortgage. **Fee simple, life estate, ones spouse in a tenancy.
What defenses are applicable to a mortgage?
A mortgage is subject to the same kind of defenses are are available against assertion of the underlying obligation that the mortgage secures. **An action for foreclosure may be sustained even though the note is illlegal or tainted by fraud.
What is the defense of usury?
In New York, usury serves as a defense available against actions both for principal and for interest if the mortgagor is not a corporation. **Usury laws prevent charing of really high interest rates
What is the outcome of a conflict between the note and the mortgage?
The provisions of the note control.
What are the rights of the mortgagee (lender) to the land?
A mortgagee merely has a lien, and is not automatically entitled to possession. **May take possession until the debt is paid if mortgagor gives express or implied consent.
What are the rights of the mortgagor (borrower) to the land?
The mortgagor has right to possession until for foreclosure.
What are the duties of the mortgagor (borrower) to the land?
May not commit waste or in any way impair the value of the property.
Is notice a mortgage necessary to bind a recording purchaser of property?
Yes, the mortgaee must record or risk losing his lien if an assignee of property records.
Can the mortgagee make transfers?
Transfer of a mortgage and note may be effected by delivery.
Can you assign the mortgage without the note?
No, because the mortgage is collateral to the note. Such an assignment will be void.
What is the effect if the mortgagor transfers the property subject to the mortgage?
If mortgaged property is transferred “subject to the mortgage,” the property becomes the primary source for payment of the debt, the original mortgagor continues to be liable on the bond.
What is the effect if the mortgagor transfers the property and the transferee assumes the mortgage?
If property subject to a mortgage is transferred to one who assumes the mortgage, the transferee becomes the primary obligor
What does assumption of the mortgage require?
Requires that the party assuming the mortgage execute and acknowledge 1) a writing stating that she assumes and agrees to pay the mortgage debt and stating the amount of the debt or 2) a deed reciting the assumption of debt and the amount of the debt. **Assumption does not relieve the original mortgagor of his obligation on the bond
What is the effect of a transfer from the mortgagor to the mortgagee?
If the value of the property is equal to the remaining debt secured by the mortgage, the conveyance satisfies the bond and mortgage.
What is the effect of transfer of property upon the death of a mortgagor?
If a decedent’s property is encumbered by a mortgage, the beneficiary takes it subject to the mortgage.
What is a due on sale clause?
A mortgage provision stating that the principal becomes due at the mortgagee’s option in the event of a sale or conveyance is enforceable.
What are the mortgagees remedies when the mortgage debt is due and unpaid?
The mortgagee may either sue on the debt or foreclose the mortgage.
Can a mortgagee bring a foreclosure action if has alread sued on the debt?
By statute, the mortgagee who has brought suit on the debt may begin the foreclosure action only if he has a judgment on the debt and that judgment is unpaid.
What is a judicial foreclosure action?
An action brought by a mortgagee to foreclose the exercise of what is otherwise the equitable right of the mortgagor—to redeem the property from the mortgagee by tendering payment. **The mortgagor retains this right until the moment of sale pursuant to a judgment of foreclosure.
What is the requirement to bring a foreclosure action?
A foreclosure action may be brought upon any default on payment of the debt that the mortgage secures.
Are acceleration clauses valid?
If the parties so agree, nonpayment of principal or interest can effect an acceleration of the debt so that the entire principal becomes due.
When is foreclosure prohibited?
A foreclosure is prohibited if: 1) the mortgage was secured to pay for legal fees in a matrimonial action, 2) it is on the mortgagor’s primary residence, and 3) the mortgagor remains the titleholder.
What is the effect of a foreclosure sale?
It is the sale, and not the judgment, that extinguishes all subordinate interests of persons included as defendants in the foreclosure proceedings.
What title does a purchaser at foreclosure sale take?
The purchaser at a foreclosure sale acquires a title clear of any claim of the parties to the foreclosure action—a title that reverts back to the date of the mortgage, cutting off any intervening rights. The mortgagee
What is a deficiency judgment?
If sale proceeds are less than the judgment in the foreclosure action, and if the mortgagor was personally served in the foreclosure action, the mortgagee can ask the court for a deficiency judgment. Demand for such judgment must be made within 90 days of sale.
When must demand for a deficiency judgment be made?
Demand for such judgment must be made within 90 days of sale.
Is there a right of redemption in NY?
In New York, there is only an equitable right of redemption prior to sale, there is no statutory right of redemption after sale regardless of who buys at the sale.
When is it possible for the mortgagee to foreclose by advertisement?
It is possible for the mortgagee to foreclose the equity of redemption without recourse to judicial action if: 1) the mortgage contains a power of sale 2) default has occurred which under the mortgage gives the mortgagee the power of sale 3) no action has been brought on the debt 4) the mortgage is recorded and 5) the first “advertisement” is made within the limitation period for judicial foreclosure. **The mortgagee must advertise at least once each week for 12 weeks
What are the basic priority rules in absence of recording?
1) Priority in time is priority in right except that 2) a subsequent legal mortgage that is accepted in good faith, without notice, and for value will have priority over a prior equitable mortgage.
How does the recording act affect priority?
1) A purchase money mortgage has priority over other mortgages recorded at the same time, 2) A mortgage securing antecedent debt is valid, but mortgagee is not a purchaser for value (ie, rights will inferior to prior unrecorded mortgage even if recorded first)
What is the priority of a judgement creditor?
A docketed lien of a judgment creditor is superior to subsequent mortgages whether or not recorded, but is inferior to prior mortgages whether or not recorded.
What is lateral support?
The ownership of land including the right to have the land supported in its natural state by adjoining land
What is the riparian doctrine?
The water belongs to those who own the land bordering the water course
What is the prior appropriation water doctrine?
The water belongs initially to the state, but the right to divert it & use it can be acquired by an individual, regardless of whether he is a riparian owner
What is the property ownership of ground water?
The surface owner is entitled to reasonable use of the water beneath the surface (not confined to a known channel) BUT his use must not be wasteful
What is surface water?
Water that comes from rain, springs, or melting snow and which has not yet reached a natural watercouse or basin
What is the common enemy rule?
A landowner may change the drainage of water or make any other changes or improvements on his land to combat the flow of surface water because it is considered a bad thing
What the exceptions to tort liability of a landlord?
CLAPS- C – Common Areas L – Latent Defects Rule (L must warn T of hidden defects that L has, or should have, knowledge of A – Assumption of Repairs (Once undertaken, L must complete repairs with reasonable care) P – Public Use Rule (when L leases public spaces that obviously cannot be repairs by T) S – Short Term Lease of Furnished Dwelling (L responsible for any defective condition that proximately injured T)
What is a servitude?
A non-possessory interest in land, creating a right to use land possessed by someone else
What are the 5 types of servitudes?
1) Easement 2) License 3) Profit 4) Covenant 5) Equitable Servitude
What is Horizontal Privity?
Refers to the nexus between the originally promising parties (A & B), requires that they be in “succession of estate” meaning that they were in a grantor-grantee / landlord-tenant / etc. relationship
What is Vertical Privity?
Refers to a non-hostile nexus between the A party and its successor)
What is tacking?
When one adverse possessor may tack onto his time with the land his decessor's time, so long as there is privity, which is satisfied by any non-hostile nexus such as: Blood, Contract, Deed, or Will
What must the land contract have?
It must be: 1) In writing 2) Signed by the party against whom enforcement is sought 3) Must describe the land 4) State some consideration
What are 2 implied promises in every land contract?
1) Seller promises to provide marketable title 2) Seller promises not to make any false statements of material fact
Is NY a notice jurisdiction or a race-notice jurisdiction?
Race-notice jurisdiction
Can B still be a purchaser of value even if he paid less than the FMV?
YES, as long as B remits substantial pecuniary consideration
What are 3 forms of notice that a buyer may potentially be charged with for buying land?
AIR -A – Actual notice of another purchaser's existence I – Inquiry Notice of whatever inspection of the land would reveal R – Record notice of another's deed properly recorded within the chain of title
What rights do the parties have once a mortgage is created?
Unless and until foreclosure, 1) Debtor has title and right to possess 2) Creditor has a lien (right to look at BA in event of default)
1) Which parties to a mortgage or deed of trust may transfer their interests?
2) What must happen, generally, for a transfer to be complete?
3) What is the difference between a mortgage and a note?
1) All parties
2) The note and mortgage must pass to the same person
3) While the mortgage itself pledges the title to real property as security for a loan, the mortgage note states the amount of debt and the rate of interest, and makes the borrower who signs the note personally responsible for repayment.
How does a creditor-mortgagee transfer his interest?
Two ways: either by a) indorsing the note and delivering it to the transferee, or b) executing a separate document of assignment
NOTE - only if the indorsement and delivery method is used can the transferee become a holder in due course
What is a "holder in due course"(HDC)?
A holder in due course takes the note free of any personal defenses that could have been raised against the original creditor-mortgagee (e.g. fraud in the inducement, unconscionability, waiver, estoppel, lack of consideration) - thus, HDC may foreclose the mortgage despite any such personal defense
What kinds of defenses is a HDC still subject to? Name them
While an HDC takes thenote free of personal defenses, an HDC is still subject to REAL DEFENSES
There are 7 such defenses: MAD FIFI4:MA - Material Alteration D – Duress FIF - Fraud in Factum I – Incapacity I – Illegality I – Infancy I - Insolvency
What requirements must be met before a transferee can be a HDC?
1) The note must be negotiable, made payable to the named mortgagee,
2) the original note must be indorsed, signed by the named motrgagee,
3) the original note must be delivered to the transferee (A photocopy is unacceptable)
4) the trasnferee must take the note in good faith without notice of any illegality, and
5) the trasnferee must pay value for th note, meaning some amount that is more than nominal
What happens if the debtor-mortgagor sells BA, which is mortgaged?
What happens in a notice state? A race-notice state?
The lien remains on the land so long as the mortgage is properly recorded. Recording statutes are there to protect mortgagees (Creditors)
HYPO - on Jan 10, S takes out mortgage on BA with Bank. Bank properly records its interest that day. S sells BA to B on Jan 15. B has no actual kn of the lien. B records the deed.
What happens in a notice state? A race-notice state?
B holds BA subject to the Bank's mortgage. Same result in both notice states and race-notice states. Notice state: buyer takes subject to the lien bc buyer is on record-notice at the time he takes. Race-notice state: B is on record notice and takes subject to the lien if the Bank records before B takes
HYPO - on Jan 10, S takes out mortgage on BA with Bank. Bank properly records its interest on Jan 20. S sells BA to B on Jan 15. B has no actual kn of the lien. B records the deed on Jan 30.
What happens in a notice state? A race-notice state?
Race-notice - B loses bc he lost the race to record
Notice state- B wins, as long as he was a BFP when he took
Rule - in a notice state, a subsequent BFP prevails over a prior grantee or mortgagee who has not yet recorded properly at the time the BFP takes
If debtor-mortgagor sells BA (which is mortgaged) to B, who is personally liable on the debt?
If B has "assumed the mortgage," both B and the debtor-mortgagor are personally liable - B is primarily liable and remains secondarily liable.
But if B takes "subject to mortgage," B assumes no personal liability (only debtor is personally liable); however, if recorded, the mortgage remains on the land. Thus, if O does not pay, the mortgage will be foreclosed
Assuming that the mortgagee-creditor must look to the land for satisfaction of an unpaid debt, how does it proceed?
The mortgagee must foreclose by PROPER JUDICIAL PROCEEDING. At foreclosure, the land is sold and the sale proceeds go to satisfying the debt.
What happens if the proceeds from the sale of BA in a foreclosure sale are less than the amount owed?
What if there is a surplus?
1) the mortgagee can bring a deficiency action against debtor.
2) Junior liens are paid off in order of priority - any remaining surplus goes back to debtor
How is a mortgage's priority determined?
After a foreclosure sale, what is the order that the funds will be distributed?
1) usually by the time the mortgage was placed on the property
2) Proceeds are applied first to the expense of the sale, attorneys' fees, and court costs; then to the principal and accrued interest on the foreclosed loan; next to any other junior interests in the order of their priority; and finally to the mortgagor
If a junior interest is foreclosed upon, what happens to the senior interests?
If a senior interest is foreclosed upon, what happens to the junior interests?
foreclosure does not destroy any interests senior to the interest being foreclosed
Foreclosure does generally destroy all junior interests, (so junior lienholders will be paid in descending order after payment of superior claims, but once a foreclosure of a superior claim has occurred, with the proceeds distributed appropriately, junior lienholders can no long look to BA for satisfaction)
NOTE - failure to include a junior interest holder in a foreclosure action results in a preservation of that party's interest
Outside of the creditor proceeding with the foreclosure action, what parties are necessary parties to a foreclosure action?
those parties with interests subordinate to those of the foreclosing party; the debtor-mortgagor
Does foreclosure affect any interest senior to the mortgage being foreclosed upon?
No. The buyer at the sale takes subject to the senior interests. This means that the buyer is NOT personally liable on senior debts, but if the serior mortgage is not paid, that creditor will foreclose against the land
Although priority among mortgages is generally determined chronologically, what are 3 of the ways that this priority can be altered?
1) if a prior mortgagee fails to record
2) a subordination agreement between a senior and junior mortgagee
3) a purchase money mortgage
What is a purchase money mortgage?
A mortgage given to secure a loan that enables the debtor to acquire the encumbered land (debtor gets loan to buy land, creditor takes as collateral a security interest in that very land)
In a purchase money mortgage, what is the creditor called?
What is that creditor's status in terms of priority?
1) purchase money mortgagee
2) Creditor has first priority as to the land financed - PMMs have priority over non-PMMs executed at about the same time, even if the non-PMM recorded first (two PMMs are determined by chronological order
What is equitable redemption?
When is the right to equitable redemption cut off?
At any time prior to the foreclosure sale, debtor has the right to redeem the land and to free it of the mortgage
The right to equitable redemption is cut off once a valid foreclosure has taken place.
How is the right of equitable redemption exercised?
What if the mortgage or note contained an acceleration clause?
1)By paying off the missed payment or payments, plus interest, plus costs
2) The full balance and accrued interest plus costs must be paid to redeem
May a debtor/mortgagor waive the right to redeem in the mortgage itself?
No (this is known as "clogging the equity of redemption", which is prohibited)
1)What is statutory redemption?
2) How many states is it recognized in?
3) what is the effect when a mortgagor redeems?
4) Is there a statutory right to redemption in NY?
1) The debtor-mortgagor has a statutory right to redeem for some fixed period (usually six months to a year) AFTER the foreclosure sale has occurred. Characteristics: (1) The redemption price is the foreclosure sale price, NOT the original debt amount. (2) Generally, the debtor-mortgagor has the right to possess Blackacre during the statutory period.
2) Recognized in 1/2 of the states
3) When a mortgagor redeems the effect is to undue the foreclosure sale - redeeming owner is restored to title
4) No
What are a landowner's rights in regards to lateral support of his land?
Ownership of land includes:
the right to have the land supported in its natural state by adjoining
if land is improved by buildings and an adjacent landowner's excavation causes that improvement to cave in, the excavator will be liable (but only) if he was negligent
NOTE - for strict liability to apply, P must show that the improvements did not contribute to his land's collapse.
What are the two major systems for determining the allocation of water in watercourses, such as streams, rivers, and lakes
1) The riparian doctrine - Water belongs to those who own the land bordering the water course (known as "riparians"). One riparian is liable to another when his use unreasonably interferes with the other's use.

prior appropriation doctrine- water belongs initially to the state, but a person can acquire the right to divert and use water (for a beneficial purpose, including agriculture) from a water course merely by being the first to do so. The person does not have to be a riparian owner.
What is groundwater?
What are the owner's rights in regards to groundwater?
Also known as "percolating water", groundwater is water beneath the surface of the earth that is not confined to a known channel
The surface owner is entitled to make reasonable sue of groundwater, but the use must not be wasteful
What are the owner's rights in regards to surface water? (rain, springs or melting snow)
Common enemy rule -surface water is considered an evil to be eradicated. A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others' land
What is a possessor of land's rights in regards to exclusion of others?
The possessor of land has the right to be free of trespass & nuisance
What is trespass? What is possessor's remedy?
The invasion of land by a tangible physical object
Possessor can bring an action for ejectment to remove trespasser
What is nuisance? What re the limits to liability for nuisance law?
1)The substantial and unreasonable interference with another's use and enjoyment of the land. Note - unlike trespass, nuisance does NOT require tangible physical invasion. Thus odors and noise could give rise to nuisance but not trespass
2) No nuisance when the problem is result of P's super-sensitivity or specialized use
What is eminent domain?
Government's 5th A power to take private property for public use in exchange for just compensation
What are the 2 types of takings?
1) Explicit takings (an act of gov. condemnation, e.g. highways) 2) Implicit or Regulatory takings (a government regulation that, although not intended to be a taking, has the same effect, e.g. you buy land, then govt bans all development -"economic wipeout of investment")
What are the 2 remedies for regulatory takings?
1) Compensation of the owner for the taking 2) Termination of the regulation & payment of the owner for damages that occurred while the regulation was in effect
What is zoning?
What is variance in zoning?
What must P show to receive a variance?
1) Pursuant to its police powers, the govt may enact statutes to reasonably control land use
2)the principal means to achieve flexibility in zoning, permitting landowners to depart from requirements of the zoning ordinance; granted or denied by administrative action - generally a zoning board
3) P must show a) undue hardship and b) variance won't work a detriment to surrounding property values
What is a non-conforming use?
What are the limits of regulating non-conforming uses?
A once lawful, existing use now deemed to be nonconforming by a new zoning ordinance.
Non-conforming uses cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking
What is the constitutional test for government exactions?
The exactions must be both reasonably related in nature and in scope to the impact of the proposed development.