De Bar - Property

Front 1

Fee Simple Absolute -- Characteristics & Language to create

Back 1

i. Language to create: “To A and his heirs”
ii. Characteristics
1. Absolute ownership of potentially infinite duration
2. Freely devisable, descendible, and alienable
3. No accompanying future interest (A has no heirs until dead)

Front 2

The Fee Tail -- Characteristics & Language to Create

Back 2

i. Language to create: “To A and the heirs of his body”
ii. Characteristics
1. Virtually abolished in US
a. An attempt to create a fee tail today would result in the creation of a FSA.
2. Property passes to grantees lineal blood descendants
3. An accompanying future interest reversion if to grantor; remainder if to a 3rd party.

Front 3

Fee Simple Determinable -- Characteristics & Language to Create

Back 3

1. Language to create: 1) “To A for so long as…;” 2) “To A during…;” 3) “To A until…”
a. Clear durational language
2. Characteristics
a. Forfeiture is AUTOMATIC upon violation/occurrence of the stated condition
b. Freely devisable, descendible, and alienable
c. Accompanying future interest The possibility of reverter

Front 4

Fee Simple Subject to Condition Subsequent -- Characteristics & Language to Create

Back 4

1. Language to create: “To A, but if X event occurs, grantor reserves the right to reenter and retake”
a. Clear durational language + carve out of the right to reenter
2. Characteristics
a. If condition occurs, no automatic forfeiture. Rather, estate can be cut short at the grantor’s option.
b. Freely devisable, descendible, and alienable
c. Accompanying future interest Right of entry, synonymous with the power of termination.

Front 5

Fee Simple SUbject to Executory Limitation -- Characteristics & Language to Create

Back 5

1. Language to create: “To A, but if X event occurs, then to B”
2. Characteristics
a. Like FSD, forfeiture is AUTOMATIC upon violation/occurrence of the stated condition, but in favor of a 3rd party.
b. Freely devisable, descendible, and alienable
c. Accompanying future interest The Shifting Executory Interest

Front 6

3 Types of Waste (Property)

Back 6

i. Voluntary or affirmative waste - Overt conduct that causes a drop in value.
ii. Permissive waste/Neglect - Land is allowed to fall into disrepair.
iii. Ameliorative waste - Life tenant must not engage in acts that will enhance property’s value UNLESS all future interest holders are known and provide consent.

Front 7

4 exceptions to prohibition against life tenant exploiting natural resources of life estate:

Back 7

a. Prior Use: Life tenant may continue to exploit, unless otherwise agreed, where land was used for exploitation prior to the grant.
b. Reasonable Repairs: Life tenant may consume natural resources for reasonable repairs and maintenance
c. Grant: Life tenant may exploit if expressly granted that right.
d. Exploitation: Land’s only suitable use is exploitation (e.g., a quarry).

Front 8

Future interests of the grantor

Back 8

i. The Possibility of Reverter - Accompanies on the Fee Simple Determinable
ii. The Right of Entry/Power of Termination - Accompanies on the Fee Simple Subject to Condition Subsequent
iii. The Reversion - Arises in a grantor who transfers an estate of lesser quantum than she started with.

Front 9

Future interests of Transferees

Back 9

i. The Remainder - A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance.
ii. The Executory Interest - A future interest which takes effect by either cutting short some interest in another person (“shifting”) or in the grantor or his heirs (“springing”).

Front 10

Two characteristics of a vested remainder

Back 10

a. A remainder that:
i. is created in an ascertained person and
ii. is NOT subject to any condition precedent.

Front 11

3 types of vested remainders

Back 11

i. The Indefeasibly Vested Remainder - Holder is certain to acquire an estate in the future, with no conditions attached (e.g., “To A for life, remainder to B”).
ii. The Vested Remainder Subject to Complete Defeasance/Vested Remainder Subject to Total Divestment - The remainderman’s right to possession can be cut short because of a condition subsequent.
iii. The Vested Remainder Subject to Open - The remainder is vested in a category or class of takers, at least one of whom is qualified to take, but each class member’s share is subject to partial dimunition because additional takers can still qualify as class members.

Front 12

When is there a condition subsequent?

Back 12

Use The Comma Rule --
a. When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent.
i. E.g., “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C.” Result? A has life estate; B has VRSTCD; C has shifting executor interest.

Front 13

What is a contingent remainder?

Back 13

a. A remainder that
i. is created in an unascertained person, OR
1. E.g., “To A for life, then to B’s heirs” where B is not yet deceased
ii. is subject to a condition precedent, OR
iii. meets both of the previous elements.

Front 14

What is a condition precedent?

Back 14

1. A condition is a condition precedent where it appears before the language creating the remainder or is woven into the grant to remainderman.

Front 15

Rule of Destructibility of contingent remainders?

Back 15

1. CL: A contingent remainder is terminated if still contingent at the time the preceding estate ends.
a. Result? Grantor or his heirs take in FSA.
2. Modern trend Rule of Destructibility of Contingent Remainders is ABOLISHED.
a. Result? If contingency is unsatisfied at end of preceding estate, O or his heirs take subject to a springing executor interest.

Front 16

The Rule in Shelley's Case?

Back 16

1. “To A for life, then, on A’s death, to A’s heirs”
a. Present and future interests merge under the rule in Shelley’s case resulting in a FSA
2. Today Rule has been ABOLISHED.
a. Result? A has a life estate; A’s heirs have a contingent remainder; and grantor has a reversion.

Front 17

property -- Doctrine of Worthier Title?

Back 17

To A for life, then to grantor’s heirs”
a. Under rule contingent remainder in grantor’s heirs is VOID; instead, O has a reversion.
i. Still good law

Front 18

What is a shifting executory interest?

Back 18

a. ALWAYS follows a defeasible fee.
b. Cuts short the interest of someone other than the grantor.

Front 19

What is a springing executory interest?

Back 19

a. Cuts short the interest of the grantor or his heirs (e.g., “To A, if and when he marries”).

Front 20

RAP, general definition

Back 20

Certain future interests are void if the interest may vest more than 21 years after the death of a measuring life.

Front 21

RAP Analysis

Back 21

i. Is this a future interest that implicates RAP?
ii. What are the conditions precedent to the vesting of the suspect future interest?
iii. Find a measuring life
iv. Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take?

Front 22

What future interests does RAP apply to (CL and DE)?

Back 22

1. Contingent remainders
2. Executor interests
a. NOTE Rights of first refusal are subject to RAP, being considered to be executor interests.
3. Vested remainders subject to open
4. In DE, contractual rights of first refusal to purchase real property

Front 23

Bright line RAP rules

Back 23

i. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP
ii. An executory interest with no limit on the time within which it must vest violates the RAP.

Front 24

Special rule for trusts and RAP in DE:

Back 24

i. At the expiration of 110 years from the later of:
1. Date on which an interest in real property is added to or purchased by a trust, OR
2. Date the trust became irrevocable
ii. Such property interest shall be distributed in accordance with trust terms as if trust was terminated.

Front 25

Cy Pres Doctrine?

Back 25

If a disposition violates RAP, court may reform it in a way that most closely matches grantor intent while still complying with RAP.

Front 26

Creation of a joint tenancy?

Back 26

1. The 4 unities - Joint tenants must take their interests
a. At the same time
b. By the same title (i.e., in the same instrument)
i. NOTE Grantor must clearly express the right of survivorship in the instrument.
c. With identical interests
d. With rights to possess the whole

Front 27

court view on joint tenancies inDE?

Back 27

disfavored. Clear, express langauge is needed.

Front 28

Termination of a joint tenancy?

Back 28

1. Sale - A joint tenant can sell or transfer her interest during her lifetime.
2. Partition
3. Mortgage - Terminates JT only in minority of states

Front 29

Creation of a tenancy by entirety (CL and DE)

Back 29

Arises presumptively in any conveyance to married partners UNLESS clearly stated otherwise
1. In DE, no straw necessary.
iii. NOTE In DE, personal property purchased during marriage is PRESUMED to be held by the entirety.

Front 30

Distinguishing characteristics of tenancies in common

Back 30

1. There is a legal presumption in favor of tenancies in common
2. Although each co-tenant in common owns a portion, each has the right to possess the whole.
3. Each co-tenant’s interest is devisable, descendible, and alienable.
a. No right of survivorship

Front 31

Rights and Duties of Co-Tenants

Back 31

i. Possession - Each co-tenant is entitled to possess and enjoy the whole.
ii. Rent
iii. Adverse Possession - Unavailable to a co-tenant unless he has ousted his co-tenants.
iv. Carrying Costs - Each co-tenant is responsible for his share of carrying costs.
v. Contribution for repairs or improvements
vi. Waste - Co-tenants must NOT commit waste.
vii. Right to Partition - Tenants in Common and Joint Tenants may bring a partition action at any time.

Front 32

The 4 leasehold estates

Back 32

i. The Tenancy for Years (Estate of Years/Term of Years) - A lease for a fixed period of time.
ii. The Periodic Tenancy - A lease which continues for successive intervals until the landlord or tenant gives proper notice of termination.
iii. The Tenancy at Will - A lease for no fixed duration (e.g., “L leases to T for as long as L or T desires”)
iv. The Tenancy at Sufferance - Created when T has wrongfully held over past the expiration of the lease.

Front 33

Tenant's Duties

Back 33

i. Liability to Third Parties (NOTE A matter of tort law)
ii. Duty to Repair
iii. Duty to Pay Rent

Front 34

Landlord's options when T breaches duty to pay rent and is in possession of premises?

Back 34

i. Bring court action to evict.
1. NOTE  L remains entitled to rent due from T, now a tenant at sufferance.
ii. Continue relationship and sue for rent due.

Front 35

L's options when T breaches duty to pay rent and is not in possession?

Back 35

i. Implicit Offer of Surrender by T.
ii. Ignore T’s Abandonment
iii. Re-Let Premises on T’s Behalf

Front 36

Landlord's Duties?

Back 36

i. Duty to Deliver Possession
ii. Implied Covenant Of Quiet Enjoyment
iii. Implied Warranty of Habitability
iv. Retaliatory Eviction - L cannot retaliate (e.g., raise rent, end lease, harass) T for lawfully reporting a housing code violation.

Front 37

3 elements of constructive eviction under implied covenant of quiet enjoyment

Back 37

1. Substantial Interference due to L’s interference of failure to act -- a CHRONIC problem
2. Notice by T to L of the problem
3. T vacates within a reasonable time after L’s failure to fix the problem.

Front 38

T's options if L breaches implied warranty of habitability

Back 38

a. Move out and end lease
b. Repair and deduct cost from rent.
c. Reduce or withhold rent until fair rental value is determined
i. NOTE Withheld rent must be placed in escrow.
d. Remain, pay, and sue. Remain in possession, pay rent, sue for damages.

Front 39

Effect of an assignment amongst L, T1, and T2?

Back 39

a. L and T2 in privity of estate and NOT in privity of contract.
i. Privity of estate -- Both liable for covenants in lease that run with the land (e.g., promise to pay rent; to paint; to repair)
ii. Privity of K not assumed UNLESS T2 expressly assumed all promises in the original lease.
b. L and T1 No longer in privity of estate, BUT remain in privity of contract
i. Result? T1 remains secondarily liable.

Front 40

Effect of a sublease on relationship between L, T1, and T2?

Back 40

a. L and sublessee No privity of estate; No privity of contract
b. L and T privity of estate and privity of K remains in contact.
c. T and sublessee privity of K.

Front 41

Exceptions to L's general non-liability in tort?

Back 41

a. Common areas must be maintained by L.
b. Latent Defects. L must warn T of all latent defects of which L knows or should know.
c. Assumption of Repairs. L must complete with reasonable care all repairs he voluntarily undertakes
d. Public Use. L is liable if:
i. Leases a public space
ii. Knows that T will not repair because of nature of defect
iii. And length of lease.
e. Short term lease/Furnished dwelling. L is liable for any defect.

Front 42

DE landlord-tenant code

Back 42

Determines all legal rights, remedies and obligations of the parties to a residential lease.
a. Does NOT apply to:Prisons; student housing; nursing homes; frat houses; hotel/motel residences.
b. General Provisions -- NOTETake precedence over ANY inconsistent lease terms.

Front 43

provisions rendered unenforceable by DE landlord tenant code

Back 43

ii. Confession of Judgment provisions (wherein signator empowers 3rd party to concede to a claim in court) against a tenant are unenforceable.
iii. Provisions for atty fees are unenforceable.
iv. Any provision exempting a landlord from liability for damages resulting from actions or omissions or landlord are unenforceable

Front 44

What is an easement?

Back 44

The grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another’s land (the servient tenement) (e.g., right to lay utility lines, right of access).

Front 45

How to create an affirmative easement?

Back 45

i. By grant in a deed of easement
ii. By implication
iii. By necessity
iv. By prescription

Front 46

Creation of affirmative easement by implication?

Back 46

1. Previous use was apparent
2. Parties expected use would survive division because reasonably necessary to benefited land’s use and enjoyment.

Front 47

creation of an affirmative easement by implication in DE?

Back 47

a. (i) In connection with a conveyance and (ii) deed references the easement, which physically exists at time of conveyance
b. Single party owns two parcels, one of which uses the other for access to a public right of way, conveys one of the parcels.

Front 48

creation of affirmative easement by necessity (and DE note)?

Back 48

1. Grantor conveys a portion of his land
2. No way out except over a portion of grantor’s remaining land.
a. NOTE InDE, conveyance of landlocked parcel creates a presumption of intent to create an easement. This presumption may be rebutted.

Front 49

requirements for creation of an easement by prescription?

Back 49

1. Continuous use for the statutory period that is
2. Open and notorious
3. Actual, and
4. Hostile (i.e., without servient owner’s consent).

Front 50

Negative easement prohibits servient landowner from engaging in activity that blocks easement holder’s access to -->

Back 50

i. Light
ii. Air
iii. Support
iv. Stream water from an artificial flow
v. Scenic view (minority view)

Front 51

Creation of a negative easement?

Back 51

i. Only by an (1) express, (2) written agreement (3) signed by the servient landowner.

Front 52

What is an appurtenant easement?

Back 52

Easement benefits its holder in his physical use or enjoyment of his property.
a. Distinguishing -- It takes 2 parcels:
i. A dominant tenement which derives the benefit, AND
ii. A servient tenement which bears the burden.

Front 53

What is an easement in gross?

Back 53

Easement confers some personal or pecuniary advantage that is unrelated to use or enjoyment of land.
a. Only one parcel -- the burdened land; no land is benefited

Front 54

Transfers of land -->Do easements run with the land?

Back 54

1. Appurtenant easements
a. Transfers of benefited parcel easement passes automatically with the dominant tenement , regardless of whether mentioned in conveyance.
b. Transfers of burdened parcel easement passes unless a bona-fide purchaser without notice of easement.
2. In Gross easements Only transferable if for commercial purposes.

Front 55

Scope of an easement? CL and DE rules

Back 55

Determined by terms of grant or conditions that created it
1. DE: When nature and extent of right is ambiguous, the exercise of the right by its holder, acquiesced by the grantor, establishes its extent.

Front 56

Changes to scope of easement over time in DE? Relocation of easement in DE?

Back 56

a. Changes over time? DE courts will permit some reasonable expansion of the scope of an easement based on changing use over time.
b. Relocation of an easement? Requires consent of the dominant and servient estates.

Front 57

Terminating an easement?

Back 57

1. Estoppel - Servient owner materially changes her position in reasonable reliance on the easement holder’s assurances that easement will not be enforced.
2. Necessity - Easement expires when necessity ends.
3. Destruction of the Servient Land not through willful conduct of servient owner.
4. Condemnation of the Servient Land by eminent domain.
5. Release - A written release by easement holder to servient owner.
6. Abandonment - Intent to never use easement again demonstrated by physical action. Non-use/words are NOT enough.
7. Merger Doctrine - Easement extinguished when title to easement and servient land become vested in same person.
a. NOTE Later division does NOT automatically revive easement.
8. Prescription - Servient owner interferes in accordance with requirements of adverse possession.
a. Continuous interference
b. Open and notorious
c. Actual
d. Hostile to easement holder.

Front 58

What is a license?

Back 58

A mere privilege to enter another’s land from some delineated purpose

Front 59

Creation and termination of a license?

Back 59

i. Creation
1. No writing necessary -- No SOF worries
a. An oral easement that fails to comply with SOF = a license
ii. Termination
1. Freely revocable by licensor
a. NOTE Estoppel may bar revocation, but ONLY where licensee has invested substantial money, labor or both in reasonable reliance on the license’s continuation.

Front 60

What is a profit?

Back 60

Entitles the holder to enter the servient land and take from it the soil or some substance of the soil (e.g., minerals, oil, timber).
i. Subject to same rules as affirmative easements.

Front 61

What is a covenant?

Back 61

A promise to do or not do something related to land.

Front 62

What is an affirmative covenant? A restrictive covenant?

Back 62

1. Affirmative - A promise to do something related to land (e.g., promise to paint a common fence)
2. Negative/Restrictive Covenant - A promise to refrain from doing something related to land (e.g., promise not to develop commercially)

Front 63

DE & restrictive covenant requiring prior approval for improvements?

Back 63

i. In DE, it is legally permissible for a restrictive covenant to condition the right of a lot owner to make improvements on his or her lot in a planned subdivision or development upon the prior approval of the developer, an association of lot owners, or a designated committee.
1. BUT Covenant will be upheld if judgment of those with authority to pass on plans is controlled by fixed standards and made to hinge on whether submitted plans meet precise requirements.
a. Aesthetic, outlook, suitability of proposed materials = NOT okay
b. “harmony with surroundings” may work.

Front 64

Termination of restrictive covenants in DE?

Back 64

i. Changed Circumstances - Purpose served by the restrictions has come to an end.
ii. Abandonment - All beneficiaries have relinquished their rights to enforce
1. NOTE Acquiescence does NOT = abandonment so long as covenant remains of value.
a. Owner is NOT precluded from seeking relief against owner of nearby property merely because they failed to prosecute claims against other (further away) violators.
i. May be different if homeowners’ association brings the claim.
iii. Waiver - A failure to object to other violations of the same or similar servitudes such that it would be unfair to allow enforcement against the current violation.

Front 65

When does benefit and burden of covenant run with the land?

Back 65

1. Requirements for Burden to Run with the Land:
a. Writing - original promise was in writing
b. Intent - original parties intended covenant would run
c. Touch and concern - a promise of an pertaining to land
d. Horizontal privity - original parties in a grantor/ee, mortgagor/ee, or landlord/tenant relationship
e. Vertical privity - a non-hostile (e.g., K, devise, descent) nexus between transferor and transferee
f. Notice - Transferee had notice when she took
2. Requirements for Benefit to Run with the land:
a. Writing
b. Intent
c. Touch and concern
d. Vertical privity

Front 66

What is an equitable servitude?

Back 66

A promise that equity will enforce against successors. Only remedy is equitable, not damages.

Front 67

Common scheme doctrine/Implied equitable servitude

Back 67

a. Subdivider had a general scheme of residential development which included buyer’s lot when sales began, and
b. Buyer had notice of the promise contained in prior deeds.
i. Actual notice
ii. Inquiry notice - Neighborhood conforms to a common restriction (e.g., “lay of the land”)
iii. Record notice - Notice imputed through publicly recorded deeds
1. 2 prevailing views on record notice under Common Scheme Doctrine:
a. Subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor
b. Subsequent buyer does NOT have record notice of contents of those prior deeds transferred to others by the common grantor.

Front 68

Elements of adverse possession

Back 68

i. Continuous - uninterrupted possession for the statutory period
ii. Open and notorious - possession that usual owner would make under the circumstances
iii. Actual - entry must be literal
iv. Hostile - without the owner’s consent.

Front 69

SOF requirements for a land sale K

Back 69

1. A writing
2. Signed by party to be bound
3. Containing a description of property
4. And a recitation of consideration

Front 70

Exception to requirement that land sale K be in writing

Back 70

a. Satisfy 2 of following 3 conditions and equity will require specific performance of an oral K to sell land:
i. B takes possession
ii. B pays all or part of the purchase price, and/or
iii. B makes substantial improvements to the land

Front 71

When is title unmarketable?

Back 71

i. Any portion of S’s title rests upon adverse possession. That is, S must provide good record title.
ii. There is any encumbrance (e.g., servitudes, mortgages) to the title that B has NOT waived.
1. Exception Title is marketable where it is subject to a mortgage that parties understand will be paid as a result of the closing.
iii. Property is in violation of a zoning ordinance.

Front 72

Implied promises in every land sale K?

Back 72

1. marketable title
2. S promises not to make any False Statements of Material Fact
a. NOTE Most states have expanded to include material omissions (i.e., failure to disclose latent material defects).
b. NOTE This promise survives K language of general disclaimer (e.g., “all faults,” “with all faults”)
3. NO Implied Warranty of Fitness or Implied Warranty of Habitability Buyer beware!
a. Exception: Implied warranty of fitness and workmanlike construction applies in sale of new home by builder-vendor.

Front 73

Requirements for a lawfully executed deed (CL and DE)?

Back 73

a. In writing
b. Signed by the grantor
c. An unambiguous description of the land, and
d. Delivered
e. Additional DE requirements for an enforceable deed:
i. Specify names of grantor(s) and grantee(s), and
ii. Be acknowledged

Front 74

Executing a deed under seal in DE?

Back 74

iii. NOTE: To be valid in DE, deeds no longer need to be executed under seal.
1. Executing a deed under seal? 2 ways:
a. It is signed and the word “seal” appears on deed
b. If executed by an entity, the entity affixes its seal.
2. Effect? 20 yr. SOL for deeds executed under seal; 3 yr. SOL for non-seal deeds.

Front 75

Types of deeds?

Back 75

a. The Quitclaim Deed
b. The General Warranty Deed - Grantor warrants against all defects in title, including those due to grantor’s predecessors. Rarely used in DE.
c. The Statutory Special Warranty Deed - Provided by statute in many states (including DE).

Front 76

What covenants are made in a general warranty deed?

Back 76

i. Present Covenants - Can be breached ONLY at the time of delivery. (That’s when SOL begins to run, too!)
1. The Covenant of Seisin - Grantor promises that he owns the estate.
2. The Covenant of Right to Convey - Grantor promises he has the power to make this transfer
3. The Covenant Against Encumbrances - Grantor promises there are no servitudes or mortgages affecting the property (other than those disclosed and waived by grantee).
ii. Future Covenants - Breached when grantee’s possession is disturbed.
1. The Covenant for Quiet Enjoyment - Grantor promises grantee will not be disturbed in possession by a 3rd party’s lawful claim of title.
2. The Covenant of Warranty - Grantor promises to defend grantee against any lawful claims of title brought by others.
3. The Covenant for Further Assurances - Grantor promises to do whatever is necessary in the future to perfect grantee’s title if it turns out to be imperfect.

Front 77

language to quitclaim in DE?

Back 77

“remise, release, and forever quitclaim.”

Front 78

What warranties are made in a statutory special warranty deed?

Back 78

i. Grantor makes following promises ONLY on behalf of himself (i.e., not his predecessors):
1. That he has not conveyed property to anyone else
a. NOTE Grantee’s notice, even actual notice, does not defeat an action for breach of warranty of title in DE.
2. That the property is free from encumbrances made by the grantor.

Front 79

words creating a special warranty deed in DE?

Back 79

ii. In DE, the words “grant and convey” are PRESUMED to convey a special warranty deed.

Front 80

construing deeds in DE?

Back 80

(1) Establish an ambiguity; (2) Look to intent of the parties.
a. Intent & Presumptions in DE:
i. Deed is presumed to convey the grantor’s entire interest UNLESS a limitation is clearly expressed
ii. Conveyance of title to adjacent property served by an easement is presumed to pass title to the center line of the easement (e.g., Alleyway between townhomes).

Front 81

Who can assert protections of recording system?

Back 81

i. Subsequent bona-fide purchasers
1. Any exchange of value? Must be substantial pecuniary consideration.
ii. Mortgagees
iii. Donees, heirs, and devisees able to take advantage of The Shelter Rule

Front 82

What is the Shelter RUle?

Back 82

One who takes from another able to assert the protections of the recording system will prevail against any entity that that transferor would have prevailed against.
a. Essentially  Donees, heirs, and devisees step into the shoes of the SBFPs or mortgagees that they take from.

Front 83

What is inquiry notice?

Back 83

form of constructive notice charging a buyer with knowledge of:
1. whatever an examination of the property would show, or
2. whatever a reasonable inspection of an unrecorded instrument referenced by a properly recorded instrument would reveal..

Front 84

MBE language of a notice statute?

Back 84

“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.”

Front 85

MBE language of race-notice statute?

Back 85

“Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance if first recorded.”

Front 86

What type of jurisdiction is DE regarding recording?

Back 86

pure race

Front 87

What is a wild deed?

Back 87

A deed having a missing link in the chain of title is incapable of giving record notice of its existence.

Front 88

What is estoppel by deed?

Back 88

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires that previously transferred interest.

Front 89

Requirements for a valid and enforceable mortgage in DE?

Back 89

a. In writing,
b. Containing a description of the property,
c. Signed,
d. Sealed
i. NOTEAn un-sealed mortgage is enforceable in equity, but NOT at law.
e. Acknowledged,
i. NOTE A defective acknowledgment is rendered valid by statutory curative provision.
f. Delivered, and
g. Recorded.

Front 90

DE - a lien or title theory of mortgages state?

Back 90

lien

Front 91

Future advances and mortgages in DE?

Back 91

a. If expressly stated, a mortgage may secure future advances
i. Lien status relates back to date of recording the mortgage.
ii. NOTE A maximum total principal amount, which cannot be exceeded, MUST be specified in the mortgage.

Front 92

Transfer of mortgage by mortgagee.bank?

Back 92

i. Transferee = A Holder in Due Course
1. Requirements to Obtaining HDC status:
a. Note must be negotiable (made payable to mortgagee)
b. Original note must be indorsed by mortgagee
c. Original note must be delivered to transferee
d. Transferee must take in good faith without notice of illegality
e. Transferee must pay value

Front 93

effect of holder in due course status?

Back 93

2. Takes free of any Personal Defenses that could be raised against mortgagee.
a. E.g., lack of consideration, fraud, unconscionability, waiver, estoppel.
3. Remains subject to any Real Defense
a. Material alteration
b. Duress
c. Fraud in the factum - A lie about the instrument (e.g., “you are signing a credit app,” when note is actually being signed).
d. Incapacity
e. Illegality
f. Infancy
g. Insolvency

Front 94

Transfer (by mortgagor) subject to a mortgage

Back 94

i. NOTEAll later buyers take subject to a properly recorded mortgage.
ii. Personal liability?
1. Buyer assumes NO personal liability; only mortgagor remains personally liable
2. Property, however, may be foreclosed upon if mortgage was properly recorded.

Front 95

transfer (by mortgagor) where mortgage is assumed

Back 95

1. BOTH mortgagor and buyer are personally liable. Buyer is PRIMARILY liable; mortgagor SECONDARILY.
2. Property remains subject to foreclosure.

Front 96

Effect of a material modification to a mortgage in DE?

Back 96

a. A material modification of a mortgage made after a 2nd mortgage has been recorded will cause the 1st mortgage to become subordinate and junior to the 2nd mortgage.
b. What is a material modification?
i. YES raising interest rates; increasing principal amount; shortening payment term.

Front 97

Effect of foreclosure on other lien holders?

Back 97

a. All junior interests are extinguished.
i. Thus, all junior lien holders are necessary parties and must be joined.
1. Failure to join a junior creditor? That particular lien is preserved despite foreclosure.
b. Senior interests are unaffected.
i. Buyer takes subject to any senior lien on the foreclosed property.

Front 98

Getting super priority status for purchase money mortgages in DE?

Back 98

superpriority status is accorded to PMMs only if recorded within 5 days of the deed to the mortgaged property being recorded.

Front 99

Lateral support doctrine

Back 99

i. Land improved by buildings + Adjacent landowner’s excavation causing cave in of improved land = Liability if excavator was NEGLIGENT
ii. Land improved by buildings + Adjacent landowner’s excavation causing cave in of improved land = STRICT LIABILITY if P shows cave in would have occurred even without improvements to the land.
1. I.e., improvements did not contribute to the cave in.

Front 100

Riparian Water Rights Doctrine

Back 100

a. Water belongs to those, known as riparians, who own the land bordering the water course.
i. Riparians share the right of reasonable use of the water (i.e., one’s use cannot unreasonably interfere with another’s).

Front 101

Prior Appropriation Water Rights Doctrine

Back 101

a. Water belongs initially to the state
i. Any individual, however, can acquire the right to divert and use it.
1. How? By engaging in any productive or beneficial use of the water.
2. Priority of beneficial use? First in time, first in right.

Front 102

Ground water/Percolating water Doctrine

Back 102

ii. Ground Water/Percolating Water - Water beneath the surface of the earth that is not confined to a known channel.
1. Surface owner is entitled to reasonable use that is not wasteful.

Front 103

Surface waters

Back 103

iii. Surface Waters - Those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
1. Considered a common enemy.
2. Surface owner may make changes to combat the flow of surface waters so long as such changes do NOT unnecessarily harm the land of others

Front 104

What is a private nuissance?

Back 104

Substantial and unreasonable interference with another’s use and enjoyment of land. (e.g., odors, noise, etc.)

Front 105

Types of takings under 5th?

Back 105

1. Explicit Takings - Acts of governmental condemnation
2. Implicit/Regulatory Takings - A governmental regulation that, although not intended to be a taking, has the same effect.
a. To succeed, P must prove an economic wipeout of value of the property.

Front 106

When will a variance be granted

Back 106

P must show:
i. Undue hardship,and
ii. Variance will NOT decrease neighboring property values.

Front 107

When will exactions pass constitutional scrutiny?

Back 107

i. Be reasonably related both in nature and scope
ii. To the impact of the proposed development.

Front 108

What is an exaction?

Back 108

Those amenities the government seeks in exchange for granting permission to build.

Front 109

How is a public street created in DE?

Back 109

i. To create a public street, there must be (i) an offer to dedicate and (ii) an acceptance.
1. Offer to dedicate? Recording of a plan by the owner showing building lots and streets = an offer to dedicate streets
2. Acceptance?
a. By expressed act
b. By implication from the acts of municipal officers, or
c. By implication by the public for the purposes for which the property was dedicated.

Front 110

What is a mechanics lien?

Back 110

Statutorily-provided proceeding by which a person who supplies labor and/or materials to real estate can obtain a lien against such real estate which relates back to the date when such labor and/or materials were first supplied to the real estate.

Front 111

Mechanics Lien - Available to who? Nature? Waiver?

Back 111

i. Available to who? General contractors; subcontractors; architects; surveyors; suppliers of materials.
ii. Nature of the lien?
1. Until judgment, lien is merely a cautionary or inchoate lien.
2. 1st mortgagee whose funds are primarily used to pay contractors or buy materials has priority over mechanic’s lien.
iii. Waiver of the right to a mechanics lien is always UNENFORCEABLE.

Front 112

Lis Pendens in DE?

Back 112

Mere filing of a suit involving real property does NOT cloud title and does NOT constitute notice to third parties of pendency of such actions.

Front 113

Characteristics of Notice of Pendency in DE?

Back 113

1. Binding 3rd parties to the proceedings? Must file a Notice of Pendency.
a. Effective for 3 years.
b. Any person claiming an interest in real estate is bound as if he were a party to the action.
c. Notice of Pendency applies?
i. Only to actions the object of which is to affect title to or enforce an equitable lien on real estate located in DE.
ii. Does NOT apply to (i) mechanic’s liens or (ii) mortgage foreclosure actions.