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84 Cards in this Set
- Front
- Back
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Types of Deeds in Delaware?
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1) Quitclaim
2) Special Warranty 3) General Warranty |
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Quitclaim Deed?
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Conveys the same rights the seller had in the property to the buyer.
Signal: "remise, release and forever quitclaim" Rarely used. |
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Special Warranty Deed
a/k/a Limited Warranty Deed |
Contains warranties of title against the grantor and his heirs and all persons claiming under him or them.
A grantee's notice, even actual, does not defeat an action for breach of covenant of warranty of title. Signal: "grant and convey" |
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General Warranty Deed
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Contains warranty of title against all persons.
Rarely used. |
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Fee Simple
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get the property and all tenements, hereditaments, franschises and appurtenances thereunto belonging, and the reversions and remainders, rents, issues and profits - don't need to be specifically stated in title.
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Requirements for a Deed to be Enforceable?
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1) In writing - SOF
2) Description of the property 3) Names of grantors and grantees (note: a TRUSTEE and not a trust may hold a title) 4) Signed 5) Acknowledged, by a notary or someone (a technically defective acknowledgment won't invalidate a deed) |
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How will a deed be construed?
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The paramount rule is to determine the intention of the parties. If the deed is clear and unambiguous however, that will defeat the parties' intent. Reference to intent of the grantor.
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Seal on a Deed?
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A deed under seal has a 20 year SOL; if not under seal, then only 3 years.
("LS" = its under seal) |
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Recording of Deeds: validity between the parties to the deed?
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recording not necessary for deed to be valid between the parties to the deed
Note: mortgages must be recorded to be valid, even to the parties of the mortgage |
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Fee Tail
(or Estate Tail) |
"To A and the heirs of his body."
Duration: Lasts only as long as there are lineal blood descendants of grantee. Transferability: Passes automatically to grantee's lineal descendants. Future Interest: Reversion (if held by grantor); Remainder (if held by third party). Holder of a fee tail may convey a fee simple interest. |
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Rule Against Perpetuities
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Applies to a contractual right of first refusal, option to purchase property, deeds.
DE follows common law RAP. Special Rule for Trusts: As applied to trusts: at the expiration of 110 years from the date that the trust becomes irrevocable, if the interest in real or personal property is still held in trust, it shall be distributed in accordance with the trust. |
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Types of Tenancies?
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Tenancy by the Entirety
Joint Tenancy Tenancy in Common |
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Tenancy by the Entirety - termination?
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No partition.
Termination upon death or divorce (in divorce they become tenants in common) |
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Tenancy by the Entirety - how to convey?
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Both spouses must convey the property
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Tenancy by the Entirety - creation?
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a conveyance to a husband and wife will be presumed to a tenancy by the entirety unless the document says otherwise
landowner can convey his property to him and his spouse and have it become TIE - no straw man needed |
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Proceeds from sale of property held as tenancy in the entirety?
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are also tenancy by the entirety
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Requirements for Joint Tenancies
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Are not favored, courts will try to avoid finding.
Four unities required: 1. same TIME 2. same TITLE 3. IDENTICAL (equal) interest and 4. passes the whole In addition, grantor must clearly express the right of survivorship. |
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Joint Tenancies - who can create?
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don't need a straw man
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DE is a Lien Theory state (re: mortgages)?
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Title to the property remains in the mortgagor and passes to his successors in interest subject to the lien.
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Equitable Mortgage v Legal Mortgage?
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Legal Mortgage is executed under seal. If not executed under seal, then is an equitable mortgage.
Whichever is the first to record will have priority. |
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Race notice state?
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the time of recording is determinative of priority
however, actual or constructive notice of an equitable lien is sufficient to render that lien enforceable in relation to that third party |
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Requirements for an enforceable mortgage?
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1) in writing
2) specify the property subject to the lien 3) be signed 4) be sealed (in order to be a legal mortgage, i.e. one that can be enforced in a court of law) 5) be acknowledged (defective acknowledgement won't render invalid) 6) be delivered 7) be recorded (not valid between any parties if not recorded) |
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When does a mortgage become a lien against the property?
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When it is recorded.
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Priority status of purchase money mortgage?
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does not beat out prior liens / judgments, but beats out judgments that arise as a result of a conveyance of the property
priority lien status only if it is recorded within 5 days after the deed conveying the mortgaged property is recorded lien of purchase money mortgage is superior to the lien of any judgment against the mortgagor purchase money mortgage may be subordinated to subsequent liens |
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What is a purchase money mortgage?
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seller-financed; a mortgage given by the purchaser to the seller for the purpose of securing all or part of the purchase price
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Modification to a Mortgage?
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a material modification of a mortgage made after the date of recording of a second mortgage against the property will cause the first mortgage to become subordinate and junior to the second mortgage
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Effective assignment of a mortgage?
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must be atested to by one credible witness
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Release of mortgage lien?
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release must be signed, sealed, acknowledged and recorded
can do a release of part of the mortgaged lands |
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Mortgages Securing Future Advances?
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A mortgage, when expressly stated therein or by reference to a separate loan agreement, shall secure not only existing indebtedness, but also future advances.
However, maximum prinicipal amount must be stated in the mortgage. Lien status of entire debt related back to recording date. |
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Satisfaction of Mortgage
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When a debt or obligation secured by the mortgage is satisfied or performed, the mortgage must satisfy the mortgage of record.
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Mortgage Foreclosure - court?
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an equitable foreclosure may be pursued in Chancery Court
a foreclosure in an action at law may be pursued in superior court; a legal proceeding is available only if the morgage is executed under seal |
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Necessary parties for a foreclosure?
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1) the mortgager
2) record owners acquiring title to the mortgaged property 3) persons having an equitable or legal interest of record 4) the U.S. if a federal tax lien 5) lienholders and tenants seized on an estate for years or at will (only entitled to notice - not defendants) |
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Leasholds as mortgage security?
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a lease for a term of 10+ years can be mortgaged
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Waste?
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a spoil or destruction in
lands, houses, trees or other corporeal hereditaments committed or permitted |
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Action for waste?
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waste already committed? get a writ of waste - award of damages [Superior Court]
prospective waste? write of estrepment - enjoins party from committing waste (injunctive relief) [Court of Chancery] |
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Lease entered into after entering into the mortgage?
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Can be cancelled upon foreclosure of the property
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Partition of a life estate?
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must be concurrent estates - can't partition a life estate
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Partition: in kind or sale?
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Courts will favor an in kind partition, but will sell property if an in kind division would be "detrimental to the interests o fthe parties entitled" to partiion
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Partition - personal property?
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chancery court may order the partition of personal property (like an airplane)
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Restrictive Covenants - how created?
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owner executes and records a declaration which:
(1) specifies the land to which the restrictions apply (can apply to multiple lots)and (2) sets forth the restrictive covenant or plan of restrictions can be established by multiple conveyances outof a single tract where each such conveyance containst he same or similar covenants |
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Restrictive Covenants - interpretation?
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Intention of the parties. Determine by the document. If the document is ambiguous, then look outside the document.
Law generally favors the free use of one's property. If to vague, the restriction will entirely fail and not be enforced. |
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Restrictive covenants - Restrictions regulating appearance?
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The trend is enforce these restrictions to allow the neighborhood to maintain similarity in appearance.
However - don't want the restriction to be so vague as to allow decision maker to make arbitrary and capricious decisions. |
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Restrictive covenants - Restrictions regulating appearance?
Architectural review committee |
suspect: potential for arbitrary and caprecious decision-making
if will allow for consistent and even-handed application, will be enforceable if committee is making decisions about "aesthetics" or just "suitability of materials" is too vague. Need some degree of specificity. "harmony with surroundings" will probably be enforceable if there is a clear harmony in the community |
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How are restrictive covenants enforced?
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Generally, equitable relief is available in the court of chancery.
(but there will be a balancing of the equities - i.e. its a court of equity) |
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New restrictive covenenants regarding roof-mounted solar panels?
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Not enforceable via statute.
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Defenses to enforcement of restrictive covenants?
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changed circumstances
abandonment, waiver (not objecting to other violations), acquiestence rezoning will not nullify a restriction |
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Creation of easements?
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Express Grant
Implied Grant Prescription Necessity |
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Creation of an easement by express grant?
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separate easement agreement
(could be in will) or declaration or in the language of the deeds in the chain of title description of the land must be sufficient to identify it with extrinsic evidence |
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Extent of an expressly granted easement?
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Intention of the parties at the time created. To get beyond the document, need to find ambiguity - then look at extrinsic evidence.
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Creation of easement by implication? (an implied easement)
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Only can be made in connection with a conveyance.
1) Quasi-eastment created when one of two adjoining parcels is sold - may continue the practice of using the way to access the public road, even if deed makes no reference to easement. 2) Reference to a streed or way in a deed of conveyance. The easement land must be in existence at the time of creation (for example, if its a right to use a street, the street must have been made already) |
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Creation of easement by prescription?
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(similar to adverse possession, but need not be exclusive user)
must show by clear and convincing proof of continuous, uninterrupted, and adverse use for 20 years with no substantial interruption of the continuity of possession and enjoyment |
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Creation of easement by necessity?
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Unity of ownership of the dominant and servient estates,
Followed by severance into the respective parcels, Resulting itn he dominant estate becoming landlocked (not really created by necessity)the necessity is a fact offered in evidence to show an intent to establish a right of way by raising the presumption of a grant of access to the dominant estate over the servient estate. Burden of proof rests on the party trying to establish existence of easement; proof must show an absolute necessity - but unreasonable expense as compared to value of land can be absolute necessity; convenience won't do it. |
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How broad are easement rights in easement created by express grant?
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Generally, what was intended at the time of the grant. But, if its ambiguous, the exercise by the holder that is acquiesced to by the grantor, will be evidence of the breadth of the rights.
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How broad are easeent rights in easement created by implication?
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the prior use - usually what would normally be required to provide reasonable access to the benefitted parcel
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Changes to use of land as a result of progress?
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Will be permitted, even though wasn't complicated at time of creation. For example - an easement that allowed people to ride horses would later allow for driving cars.
A farmer dividing his land in two so his kid could have a house would probably also be okay. How much will it burden the easement? |
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Easement relocation?
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dominant and servient estates must agree to
(court can't do it without their agreement) |
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Termination of easement?
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1) Merger (must have fee simple ownership of both parcels)
2) Release (express writing) 3) Way of Necessity? end of necessity, abandonment (manifested intent + act), adverse possession by servient estate owner, estoppel |
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How to create a public street?
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1) offer to dedicate
2) acceptance of the offer (express or implied, inlcuding implied by public use) approval of a plan of development will be sufficient |
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Mechanics Lien?
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Delaware Mechanics Lien Statute, which is strictly construed.
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How to enforce a mechanics lien - what date is the lien imposed? When can the lien be executed?
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An action to enforce a mechanics lien. The lien can't be executed on until its proven.
A mechanics lien dates back to the date when the labor or materials were first supplied to the real estate (regardless of amount / time of nonpayment to mechanic). |
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Theory of mechanics lien? Who has a mechanics lien on real property?
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the land is increased in value by labor or materials delivered to it. Available to:
General Contractor Subcontractor Architect Surveyor Supplier of Materials |
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Time for filing a mechanics lien action?
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They have a long time.
180 days after completition for contractors, 120 for subcontractors |
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Mechanics lien complaint requirements?
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very specific, includes:
1) owner of real estate 2) date when providing labor / materials commenced 3) date when providing labor / materials finished 4) description of real estate 5) whether there are any first mortgages on the property |
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Waiver of right to a mechanics lien?
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invalid
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First mortgage on property where 50%+ is for paymetn of labor and materials?
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has priority over mechanics lien
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Delaware Guest Statute?
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Landowners can't be sued by guests and trespassers for simple negligence.
Can only bring an action for intentional harm or willful or wanton disregard of the rights of others. |
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Who is a guest under the DE guest statute?
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one who is present by invitation, express or implied, without economical or business benefit to the host
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Delaware Landlord Code - applies to?
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lease of residences, but not:
prisons, student housing, nursing homes, group homes, detention-related housing, frat houses, hotels, beach leases in Sussex County, lease of dwelling on ground owned by the tenant |
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Inconsistency between DE Landlord Code and the Lease?
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interpret in favor of the code
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Material promises to be performed by a party to a lease (DE Landlord Code)?
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Material promises to be performed by either party to a lease are interpreted as mutual and dependent conditions ot the performance of material promises by the other party.
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Descrimination by landlords under the DE Landlord Code?
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Can descriminate in favor of senior citizens if consistent with federal and state fair housing acts.
Can't descriminate based on race, creed, religion, marital status, color, sex, sexual orientation, national origin, disability, age, occupation or because the tenant has children. |
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Attorneys fees provisions in a lease?
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Provisions for recovery of attorneys' fees are unenforceable.
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Confession of Judgment provisions under the DE Landlord Code? What is a confession of judgment?
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unenforceable
this is when a person signs a document permitting another party to go into court for them and have a judgment entered against them |
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Provisions exempting landlords from liability for damages resulting from acts or omissions or landlord?
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unenforceable
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Remedy if landlord wrongfully removes or evicts tenant?
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No self-help.
If done without a valid court order (and therefore wrongful), then is liable for the greater of: 1) treble damages 2) 3 times per diem rent fo rthe period of exclusion |
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Priority of payment of rent?
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Landlord is entitled to a priority for the payment of rent with respect to chattels of a tenant which are seized by any process of execution, attachment or sequestration.
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Warranty of habitability?
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Tenant can't waive landlord's responsibilities regarding laws governing maintenance, construction, use, appearance of the rental unit; not endanger health, safety, etc.
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Separate agreement for tenant to perform specified repairs and maintenance?
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okay if not necessary to bring unit in compliance with warranty of habitability, adequate consideration other than the rental agreement must be received, and can't be entered into so landlord can evade his obligations
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Remedies of tenant against landlord?
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if tenant deprived of a substantial part of the benefit of tenant's bargain and landlord fails to remedy w/in 15 days of notice, then tenant may terminate lease
if landlord fails to perform any repair for which he is responsible w/in 30 days after notice or fails to initiate corrective measures w/in 10 days, tenant may repair and deduct from rent the reasonable cost thereof, not to exceed lessor of $200 and one month's rent tenant may terminate lease in 48 hours if landlord fails to provide after notice: water, heat, hot water, electric - or can keep 2/3 rent |
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Commercial leases?
self-help, confession of judgment? priority for payment of rent? |
unenforceable
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Landlord's right to distrain tenant's goods for nonpayment of rent?
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Only if the lease provides for it.
Is a pre-judgment attachment that is available from the courts if there is reason to believe the tenant is going to cut and run without paying. It's a levy on the goods - it feezes the property. Then, expedited hearing --> execution (+ benefit of rent priority) |
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Lis Pendens?
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a pending lawsuit
one who acquires property subject to lis pendens takes it subject to the rights of the parties to the litigation |
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Lis Pendens
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Notice of Pendency must be filed in the Office of the Recorder of Deeds in th eCounty in which the property is located.
(this doesn't apply to mortgage foreclosure or mechanics liens) |
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Adverse possession in Delaware (time)?
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20 years
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