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187 Cards in this Set
- Front
- Back
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[Freehold Estates]
Order of analysis of freehold estates -- |
-What type of present estate
---If future takers of the interest, other than the grantor, is the future interest devisable/descendable/alienable -Who has the Future Interest & what kind ---If future takers of the interest, other than the grantor, is the future interest devisable/descendable/alienable |
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[RAP]
What is the RAP? 21 |
Future Interests are void if there is any possibility that interest may vest more than life + 21 years
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[RAP - Technique]
RAP ONLY applies to these types of future interests 21 |
-Contingent remainders
-Executory interests -Vested remainders subject to open Does NOT apply to: -Any future interest in O (reversionary interest) -Indefeasily vested remainders -Vested remainders subject to complete defeasance |
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[RAP - Technique]
Effect of violation of RAP 23 |
Cut off the part that exceeds the 21 years, and usually create a reversion in O
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[RAP - Technique]
Two often-tested violations of the RAP 23-24 |
-Gift to an open class conditioned on the members surviving beyond 21 years old
-Shifting executory interests ("so long as") with no time limit on when interest must vest BUT REMEMBER -- RAP does NOT apply if the future interest in the grantor |
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[RAP - Technique]
Exception to RAP 25 |
Charity-to-charity exception
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[RAP - Reforms]
What are the two reforms of teh RAP 26 |
-"wait and see" / "second look" doctrine
---Determine validity at the end of the measuring life ---Includes a cy pres doctrine allowing "as near as possible" reform of the future interest -Uniform Statutory RAP (USRAP) ---Provides an alternative 90 year vesting period ---Includes a cy pres doctrine allowing "as near as possible" reform of the future interest |
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[Concurrent Estates]
What are the three forms of concurrent ownership 26-27 |
-Joint Tenancy w/ ROS
-Tenancy by the entirety (marital interest w/ ROS) - Tenancy in common w/ no ROS |
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[Concurrent Estates - Joint tenancy]
Distinguishing characteristics of Joint tenancy 27 |
-ROS
-Interest is alienable, but NOT divisable/descendable (b/c goes to survivor) |
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[Concurrent Estates - Joint tenancy]
How to create a Joint Tenancy (3 steps) 27 |
1 - Four Unities: (T-TIP)
---Time ---Title ---Identical interest (equal shares) ---Posess whole 2 - Grantor clearly express ROS 3 - Use of strawman (convey to 3rd party to convey back to get T-TIP) |
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[Concurrent Estates - Joint tenancy]
How is a joint tenancy severed? (3 ways) 28 |
SPaM
1 - Sale 2 - Partition, And 3 - Mortgage |
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[Concurrent Estates - Joint tenancy]
Effect of sale on joint tenancy? 28-29 |
Creates a tenancy in common
BUT NOTE: if a 3-party JTROS, then sale of one share creates a 1/3 tenancy in common, and the remaining 2/3 STILL HAVE a JTROS |
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[Concurrent Estates - Joint tenancy]
What must be done to be a considered a sale, severing the JTROS? 28-29 |
Only need mere K for sale (actual possession is NOT needed) --- called an equitable conversion
One party to the JTROS does NOT need to ask permission and may do so secretly, but severed at the instant of K |
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[Concurrent Estates - Joint tenancy]
Three ways to create a partition 30 |
-Parties agree
-Ct. action for division if in best interests of all (agriculture) -Forced sale and sale proceeds divided equally (for property not easily divisible) |
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[Concurrent Estates - Joint tenancy]
Effect of mortgage 30-31 |
In MAJORITY OF STATES mortgage by one does NOT sever b/c mortgage is considered a lien (not a title)
NOTE: PA is IN THE MINORITY -- PA is a title state, so a mortgages DOES sever a JTROS, creating a tenancy in common |
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[Concurrent Estates - Tenancy in the entirety]
How to create a Tenancy by the entirety 31 |
Arises by presumption if husband and wife both acquire UNLESS clear intent otherwise
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[Concurrent Estates - Tenancy in the entirety]
Protections of Tenancy by the entirety 31 |
-creditors CANNOT reach to satisfy debts incurred by one of the spouses individually
-Conveyance to 3rd party does NOT sever |
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[Concurrent Estates - Tenancy in common]
2 features of tenancy in common 32 |
-Co-tenants an individual part, but has right to possess the whole
-NO right of survivorship (descendable, divisable, and alienable) NOTE: most estates are PRESUMED to be tenancies in common |
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[Concurrent Estates - Duties of Co-Tenants]
What is wrongful ouster? 32 |
When one co-tenant wrongfully excludes another co-tenant from possession of the whole
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[Concurrent Estates - Duties of Co-Tenants]
Co-tenants ability to demand rent and take a potion of rent? 33 |
-Co-tenants cannot demand rent for periods of exclusion possession, absent wrongful ouster
-Co-tenant who leases all or part of the premises to third party must account to others in fair share |
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[Concurrent Estates - Duties of Co-Tenants]
Can co-tenants adversely possess from each other? 33 |
No -- there is no hostility absent ouster
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[Concurrent Estates - Duties of Co-Tenants]
What are carrying costs? 33 |
Costs such as taxes, utilities, and mortgage interest payments
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[Concurrent Estates - Duties of Co-Tenants]
What are co-tenants responciliblities to each other for carrying costs? 33 |
Must pay for carrying costs in fair share to ownership interest
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[Concurrent Estates - Duties of Co-Tenants]
Right to demand payment from co-tenants for repairs? 34 |
Can demand payment for reasonable and necessary repairs PROVIDED the co-tenant told the others of the need. The payment for repairs is IN PROPORTION to the ownership interest
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[Concurrent Estates - Duties of Co-Tenants]
Right to demand payment from co-tenants for improvements? 34 |
There is NO right to $ for improvements, BUT, may WILL be entitled to any increase in value after sale due to efforts (but also may be liable for any decrease in value b/c of so-called 'improvements')
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[Concurrent Estates - Duties of Co-Tenants]
Types of waste co-tenants may bring action for 34 |
Ameliorative
Permissive Voluntary |
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[Landlord/Tenant - Four leasehold interests]
What are the 4 leasehold interests? 35-38 |
Tenancy for years
Periodic Tenancy Tenancy at Will Tenancy at Sufferance |
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[Landlord/Tenant - Four leasehold interests: Tenancy for years]
What is the duration of a Tenancy for years? 35 |
It's for ANY fixed period the parties set
NOTE: If >1 year, must be in writing b/c statute of frauds |
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[Landlord/Tenant - Four leasehold interests: Tenancy for years]
What amount of notice is need to terminate a Tenancy for years? 35 |
NONE
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[Landlord/Tenant - Four leasehold interests: Periodic tenancy]
What is the duration of a Periodic Tenancy? 35 |
It depends - but in CONTINUES SUCCESSIVELY until notice given
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[Landlord/Tenant - Four leasehold interests: Periodic tenancy]
What are TWO ways a Periodic Tenancy can begin? 35-36 |
Either expressly, OR through implication
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[Landlord/Tenant - Four leasehold interests: Periodic tenancy]
What are the three ways a Periodic Tenancy can be created through implication? 36 |
-Land is leased with no mention of duration,but with paymnet at SET INTERVALS
- Order term of years that VIOLATES the S/F creates a periodic tenancy measured in the way the term rent is tendered -Holdover from previous lease, measured by the way rent is NOW TENDERED |
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[Landlord/Tenant - Four leasehold interests: Periodic tenancy]
How do you terminate a periodic tenancy, and how much notice is needed? 37 |
Must terminate IN WRITING with at least 1 period's notice
EXCEPTION: year-to-year periodic tenancies only have to give 6 months' notice NOTE: If you give notice on May 15, have to keep paying till June 30 -- must end at conclusion of natural lease period |
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[Landlord/Tenant - Four leasehold interests: Tenancy at will]
How long does a Tenancy at will last? 37 |
Trick question - it's for no fixed duration
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[Landlord/Tenant - Four leasehold interests: Tenancy at will]
How do you terminate a Tenancy at will? 37 |
Can be terminated by either party at any time (but must give reasonable demand to vacate)
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[Landlord/Tenant - Four leasehold interests: Tenancy at sufferance]
What is a tenancy at sufferance? 38 |
Created when a tenant has wrongfully held-over
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[Landlord/Tenant - Four leasehold interests: Tenancy at sufferance]
How long does a tenancy at sufferance last? 38 |
Lasts until landlord either
-Evicts, OR -Elects to hold T to a new tenancy |
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[Landlord/Tenant - Tenant's duties]
What are the tenant's 3 duties & liabilities? 38 |
-Liable to 3rd parties
-Duty to repair -Duty to pay rent |
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[Landlord/Tenant - Tenant's duties: to 3rd parties]
What does a T's duty to 3rd parties entail 38 |
-Keep premises in reasonably good repair
-T is liable for all injuries 3rd parties sustain, EVEN IF L PROMISED TO MAKE ALL REPAIRS |
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[Landlord/Tenant - Tenant's duties: to repair]
When lease is silent, What dutues to repair does T have? 38 |
-Maintain and make ordinary repairs
-Not commit waste |
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[Landlord/Tenant - Tenant's duties: to repair]
What are the 3 types of waste? 39 |
Voluntary (overt acts)
Permissive (neglect) Ameliorative (increased value) |
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[Landlord/Tenant - Tenant's duties: to repair]
What is a fixture? 39 |
Object that objectively shows intent to permanently improve realty >>> fixtures always pass with the land
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[Landlord/Tenant - Tenant's duties: to repair]
Test for when something installed is a fixture or not 40 |
If removal would cause substantial damange
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[Landlord/Tenant - Tenant's duties: to repair]
What type of waste is removal of a fixture? 39 |
Voluntary
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[Landlord/Tenant - Tenant's duties: to repair]
When may a leaseholder remove a fixture? 40 |
May remove if:
-Lease agreement does not expressly state otherwise -Removal of fixture will NOT DAMANGE -Removal is COMPLETED BEFORE THE END OF THE LEASE |
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[Landlord/Tenant - Tenant's duties: to repair]
T's liability for loss of property due to force of nature 40 |
Common law: T still had to pay rent
Today (including in NY): T may terminate lease (so long as destruction not T's fault) |
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[Landlord/Tenant - Tenant's duties: to pay rent]
Landlord's options when T breaches duty to pay rent and T is in possession 40 |
-Evict through court, OR
-Continue lease, and sue for rent due NOTE: rent continues being owed during eviction time |
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[Landlord/Tenant - Tenant's duties: to pay rent]
Landlord's options when T breaches duty to pay rent and T is NOT in possession 41 |
***SIR***
-Surrender ---Treat T's actions as implicit surrender ---BUT Surrender >1 year must be in writing -Ignore ---Hold T responsible for accumulating rent ---Usually CANNOT do this b/c duty to mitigate (NO duty to mitigate in NY) -Re-Let and hold liable for deficiency ---This is mitigation |
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[Landlord/Tenant - Landlord's duties: to deliver possession]
What is the American rule to deliver possession? 42 |
Only have to deliver LEGAL possession
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[Landlord/Tenant - Landlord's duties: to deliver possession]
What is the English rule to deliver possession? 42 |
L has to deliver ACTUAL possession to T, else T gets damages
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[Landlord/Tenant - Landlord's duties: warranties]
What are the two implied covenant/warranties with residential leases? -- |
Warranties of:
Quiet enjoyment Habitability |
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[Landlord/Tenant - Landlord's duties: quiet enjoyment]
What is the IMPLIED COVENANT of quiet enjoyment? 42 |
It's the right to quiet use and enjoyment without interference from L
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[Landlord/Tenant - Landlord's duties: quiet enjoyment]
To why type of leases does the implied covenant of quiet enjoyment apply? 42 |
BOTH residential and commercial
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[Landlord/Tenant - Landlord's duties: quiet enjoyment]
What are the two ways in which L can breach the implied covenant of quiet enjoyment? 42 |
-Wrongful eviction, OR
-Constructive eviction |
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[Landlord/Tenant - Landlord's duties: quiet enjoyment]
What does a T have to show to successfully prove constructive eviction? 42 |
****SING
-Substantial Interference -Notice (and opportunity for L to cure) -Goodbye (ACTUALLY VACATE) |
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[Landlord/Tenant - Landlord's duties: quiet enjoyment]
Is L liabile for acts of other tenants for the purposes of constructive eviction? (and 2 exceptions) 43 |
NO, except:
-L must not permit a nuisance -L must control common areas |
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[Landlord/Tenant - Landlord's duties: habitability]
What is the implied warranty of habitability? 43 |
Fit for basic human habitation (basic necessities)
-Usually test supplied by housing code |
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[Landlord/Tenant - Landlord's duties: habitability]
To what type of leases the implied warranty of habitability apply? 43 |
Residential only
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[Landlord/Tenant - Landlord's duties: habitability]
What are a T's rights if there is a breach of the implied warranty of habitability? 44 |
***MRx3
-Move out & end lease -Repair and deduct -Reduce rent (or withhold all rent and put in escrow) -Remain in possession (and seek money damages) |
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[Landlord/Tenant - Assignment vs. sublets]
What is the difference b/w assignment and sub-lease? 44 |
Assignment = interest in whole
Sub-lease = part interest |
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[Landlord/Tenant - Assignment vs. sublets]
What is the legal effect of an assignment b/w L and Old T? B/w L and New T? 43 |
The L and new T are in privity of ESTATE, but NOT privity of K
L and OLD T remains in privity of K, but NOT privity of estate |
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[Landlord/Tenant - Assignment vs. sublets]
What duties run due to privity of estate? 43 |
Promise to pay rent, paint, repair
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[Landlord/Tenant - Assignment vs. sublets]
What duties run due to privity of K? 43 |
Duty to pay rent --- therefore OLD T remain secondarily liable!
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[Landlord/Tenant - Assignment vs. sublets]
What is the legal effect of a sub-lease b/w L and Old T? B/w L and New T? 46 |
NO duties b/w L and New T -- all remain b/w L and Old T
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[Landlord/Tenant - Landlord's tort liabilty]
What are L's common law duty's at tort? 46 |
No duty to make premisis safe
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[Landlord/Tenant - Landlord's tort liabilty]
What are the 5 exceptions to L's lack of duty in tort to T? 47 |
***CLAPS
-Common areas -Latent (hidden) defects >>> ONLY has to WARN, not repair! -Assumption of Repair (voluntary start = must finish) -Public Use (length of lease is small, and T is leasing for small period, and land would be un-useful in current condition) -Short term lease of FURNISHED dwelling (ANY defect) |
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[Servitudes]
Five primary types of servitudes 48-49 |
-Easements
-Licenses -Profits -Real covenants -Equitable Servitudes |
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[Servitudes - Easements]
What is an easement? 50 |
Non-possessory right to do something (unless negative easement) on someone else's land
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[Servitudes - Easements]
What are the two affected properties called? 50 |
Dominant and servient tenements
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[Servitudes - Easements]
What are the ONLY types of negative easements? 50 |
***LASS
-Light -Air -Support -Stream water from artificial flow |
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[Servitudes - Easements]
What are the two TYPES of easements? 51 |
Appurtenant and Gross
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[Servitudes - Easements]
What defines an appurtenant easement? 51 |
It takes TWO parcels, creating a dominant and servient estate
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[Servitudes - Easements]
What defines an easement in gross? 51 |
Easement that only gives personal/pecuniary advantage
-Creates a servient/burdened estate, but there IS NO DOMINANT estate (Exs: power lines, billboards, fishing rights) |
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[Servitudes - Easements]
Transferability of appurtenant easements? (when does the benefit and burden of an easement pass?) 51-52 |
Benefit passes AUTOMATICALLY, EVEN if not mentioned in deed!
Burden ALSO passes automatically (even if not in deed), BUT not if subsequent person is a BFP (bona fide purchaser) w/o actual, inquiry or record notice |
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[Servitudes - Easements]
Transferability of easements in gross 52 |
Easements in gross are NOT transferable UNLESS for commercial purposes
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[Servitudes - Easements]
4 ways to create an affirmative easement 53 |
***PING
-Presription -Implication -Necessity (landlocked -- no way out) -Grant |
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[Servitudes - Easements]
Requirements for creating an affirmative easement by Prescription 54 |
***COAH
Must meet requirements of adverse possession: -Continuous for statutory period -Open and Notorious -Actual use -Hostile (w/o consent - PERMISSION defeats) NOTE: Use CAN be accidental |
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[Servitudes - Easements]
Requirements for creating an affirmative easement by implication (quasi-easement) 53 |
-Land split in 2, AND
-Previous use was apparent AND -Parties expected use would survive division b/c necessary to continued enjoyment |
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[Servitudes - Easements]
Requirements for creating an affirmative easement by grant 53 |
Must be in writing if > 1 year
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[Servitudes - Easements]
Scope of an easement is determined by? 53 |
Its terms! (No unilateral expansion allowed)
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[Servitudes - Easements]
What are ways to terminate an easement? (just list) 55-57 |
***END CRAMP
-Estoppel -Necessity (period of necessity ends) -Destruction of servient land -Condemnation of servient estate -Release -Abandonment -Merger -Prescription |
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[Servitudes - Easements]
What is required to terminate an easement by estoppel? 55 |
Servient owner materially changes position in reliance the easement holder's assurances that easement will not be enforced
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[Servitudes - Easements]
What is required to terminate an easement by abandonment? 56 |
Easement holder demonstrates by PHYSICAL ACT (not mere nonuse or words)
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[Servitudes - Licenses]
What is a license? 57 |
Mere privileged to enter another's land for some purpose
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[Servitudes - Licenses]
What formalities are required to create a license 58 |
NONE -- they don't even have to meet the statute of frauds
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[Servitudes - Licenses]
Requirements to terminate a license 58 |
NONE - they are freely revocable (but estopple can apply)
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[Servitudes - Licenses]
Requirement to satisfy estopple claim, preventing license being revoked 58 |
Licencee has invested substantial money, labor or both
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[Servitudes - Profits]
What is a profit? 59 |
Same as an easement in gross, but allows to take soil, or substance of the soil
(minerals, oil, timber) |
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[Servitudes - Covenants]
What is a covenant? 59 |
Promise to DO or NOT DO something, but it's a K obligation, NOT a property interest
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[Servitudes - Covenants/Equitable Servitudes]
What's the difference b/w covenants and equitable servitudes? 59 |
LOOK to the question -- if it asked re: injunction, then apply the equitable servitude rules, if asks for damages, then it's a covenant
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[Servitudes - Covenants]
Give the short version of the rule re: when does a covenant run with the land? 60 |
When both the benefit and burden run w/ the land
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[Servitudes - Covenants]
When does a BURDEN run w/ the land? (basic rule) 60 |
***WITHN
-Writing -Intent to run -Touch and concern the land (Homeowner ass'c fees DO touch) -Horizontal AND vertical privity -Notice (person's land to be burdened had notice AT TIME of acquiring) |
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[Servitudes - Covenants]
What's required to have horizontal privity? 61 |
*Hard to establish b/c requires:
Nexus b/w ORIGINAL parties, such as: -Grantor-grantee -Landlord-tenant -Mortgagor-mortgagee |
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[Servitudes - Covenants]
What's required to have vertical privity? 62 |
Any non-hostile nexus (K, devise)
Only thing that DOESN'T count is adverse possession |
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[Servitudes - Covenants]
When does the BENEFIT run with the land? 62 |
***WITV
-Writing (b/w ORIGINAL parties) -Intent -Touch and concern -Vertical privity |
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[Servitudes - Equitable Servitudes]
What is an equitable servitude? 62 |
Promise that equity will enforce against successors
REMEDY IS IN EQUITY -- injunctive relief |
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[Servitudes - Equitable Servitudes]
What is required to an Equitable Servitude? 63 |
***WITNES
-Writing (b/w ORIGINAL parties) -Intent to run to assignees (b/w ORIGINAL parties) -Touch and concern -Notice (ES just stands for equitable servitude) NOTE: PRIVITY IS NOT REQUIRED!!! |
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[Servitudes - Equitable Servitudes]
What is a negative reciprocal servitude? And what are its elements? 63 |
NOTE: this is an IMPLIED equitable servitude
Servitude due to common scheme, requires: -Subdivider had general scheme of development, including D's land -D had NOTICE in the prior deed |
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[Servitudes - Equitable Servitudes]
What types of notice satisfy the element of notice for a negative reciprocal servitude? 64 |
***AIR:
-Actual -Inquiry (see uses of surrounding property) -Record (could search title of surrounding properties) NOTE: record notice is only applicable in certain states, and is a BAD rule b/c puts additional burden on D's title searcher |
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[Servitudes - Equitable Servitudes]
Defenses to enforcement of an equitable servitude 64 |
Only one defense: Changed conditions (requires that change be pervasive)
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[Adverse Possession]
What happens if elements of adverse possession are met? 65 |
Ripens into title
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[Adverse Possession]
Elements of adverse possession 65 |
***COAH
-Continuous for statutory period -Open and Notorious -Actual use -Hostile (w/o consent - PERMISSION defeats) NOTE: Use CAN be accidental (state of mind is irrelevant) |
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[Adverse Possession]
Requirement for tacking to apply to adverse possession's statutory period requirement 66 |
Privity b/w parties -- any non--hostile nexus
NOT where there is outser |
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[Adverse Possession]
When is there a tolling of the statue of limitations for adverse possession? 66 |
When there is a disability at the START of the adverse possession
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[Land Conveyance/Purchase]
What the the two steps for every land conveyance? 67 |
-Land K, which endures until ...
-The closing, where deed become the operative document |
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[Land Conveyance/Purchase and Sale - Land K]
Application of the statute of frauds to land Ks 67 |
MUST satisfy, signed by party to be bound, and MUST:
-Describe land -State some consideration |
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[Land Conveyance/Purchase and Sale - Land K]
Remedy when land K recites MORE land that the actual size of parcel 67 |
Get specific performance w/ pro-rata reduction in purchase price
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[Land Conveyance/Purchase and Sale - Land K]
EXCEPTION to satisfying statute of frauds for land contracts, and its elements 67 |
The "Doctrine of Part Performance," requiring TWO of the THREE of the following:
-B takes possession -B remits all or part of purchase price -B makes substantial improvements |
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[Land Conveyance/Purchase and Sale - Land K]
Who holds the risk of loss after the land K is made & what is the term for this doctrine? 68 |
Equitable conversion: BUYER holds the risk of loss from the instant of the conveyance
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[Land Conveyance/Purchase and Sale - Land K]
List the implied promises in EVERY land K 68 |
-Promise of marketable title AT CLOSING
-Promises not to make any false statements |
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[Land Conveyance/Purchase and Sale - Land K]
What does the promise of marketable title require? 68 |
Seller provide marketable title AT CLOSING including being free of:
-Reasoanble doubt -Suits -Threat of litigation NOTE: Seller has right to satisfy a mortgage from seller's payment |
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[Land Conveyance/Purchase and Sale - Land K]
Three circumstances that will render a title unmarketable 68-69 |
-Adverse possession
-Encumbrances (must provide unencumbered fee simple unless buyer waives) -No zoning violations |
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[Land Conveyance/Purchase and Sale - Land K]
What does the promise to not make any false statements require? 69 |
Just like the rule says, but MOST states now ALSO require a DUTY TO DISCLOSE -- therefore material OMISSIONS = fail
Cannot disclaim property as "as is" |
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[Land Conveyance/Purchase and Sale - Land K]
What additional warranties are implied from a Land K? 70 |
NONE, EXCEPT if:
Seller is the new home BUILDER, then warranty of fitness and workmanlike construction (relatively low bar) |
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[Land Conveyance/Purchase and Sale - Closing]
What document becomes controlling after the closing? 70 |
The deed (which passes legal title from seller to buyer)
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[Land Conveyance/Purchase and Sale - Closing]
What is the order of construction of deeds? -- |
-Words of physical description
-THEN quantity description (therefore get benefit of larger quantity) |
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[Land Conveyance/Purchase and Sale - Closing]
How does a deed pass legal title? 70-71 |
***LEaD
-Lawfully Executed, and -Delivered |
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[Land Conveyance/Purchase and Sale - Closing: Execution]
What is required for a deed to be lawfully executed? 70 |
-The DEED (as opped to the land K) need NOT recite consideration
-Description (but need NOT be perfect, only need "GOOD LEAD" that reasonable research will lead person to the land) |
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[Land Conveyance/Purchase and Sale - Closing: Delivery]
What is required for a deed to be delivered? 71 |
Grantor's PRESENT INTENT to be IMMEDIATELY bound (actual physical delivery is NOT required)
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[Land Conveyance/Purchase and Sale - Closing: Delivery]
Can delivery be defeated by the recipient? 71 |
YES - by express rejection
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[Land Conveyance/Purchase and Sale - Closing: Delivery]
Effect of written deed coupled with an oral condition at delivery 72 |
The condition is COMPLETELY INEFFECTIVE, and deed/title still transfers
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[Land Conveyance/Purchase and Sale - Closing: Delivery]
Effect and advantages of delivery by escrow. 72 |
Delivery by escrow is allowed, and will allow for conditions to be satisfied before delivery
Advantages: If grantor dies before conditions to escrow satisfaction are met, the TITLE WILL STILL PASS once the conditions are met |
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What are the three types of deeds? 72-74 |
-Quitclaim
-General Warranty -Special Warranty |
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What covenants does a quitclaim deed contain? 72 |
NO covenants post-closing
HOWEVER: seller STILL have to meet the implicit promise of the land K for marketable title and no false representations -- BUT post-closing lose rights to enforce against w/ the quitclaim deed |
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What covenants does the general warranty deed contain? (Just list) 72-74 |
3 Present covenants (breached at time of delivery - SOL begins at delivery):
-Seisin -Right to Convey -Against encumbrances 3 Future covenants (breached at some after grantee is in possession - SOL beings later): -Quiet enjoyment -Warranty -Further assurances |
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What does the covenant of seisin cover? 73 |
Grantor promises he owns estate
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What does the covenant of right to convey cover? 73 |
Grantor promises he has power to transfer (no short-term restraints)
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What does the covenant for quiet enjoyment cover? 74 |
Grantor promises grantee won't be disturbed by 3rd party's lawful claim of title (no double deal)
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What does the covenant of warranty cover? 74 |
Grantor promises to defend grantee should there be a claim of title asserted by others
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What does the covenant for further assurances cover? 74 |
Grantor promises will do whatever is needed to perfect title, if it is imperfect
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[Land Conveyance/Purchase and Sale - Closing: Deed warranties]
What covenants does the special warranty deed contain? and caveat 74 |
-Covenant that grantor hasn't conveyed to anyone else; AND
-Conventant that is free from encumbrances put on land BY THE GRANTOR (only applies to his encumbrances -- not prior encumbrances) |
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[Recording System - Brightline Rules]
What are the two bright-line rules about recording statutes and BFPs? 75 |
-If B is a BFP, and in a NOTICE jurisdiction, then B wins - even if she desn't record
-If B is a BFP, and in a RACE-NOTICE jurisdiction, B wins only is she records first |
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[Recording System - BFP]
What is a BFP? (the test) 75 |
-Purchases for value
-W/o notice, someone else purchased first (notice and be actual, inquiry or record) |
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[Recording System - BFP]
What is enough to "purchase for value"? 75 |
Can be anything more than nominal consideration -- a great deal (1/2 off) doesn't matter
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[Recording System - BFP]
Who CANNOT be a BFP, EVER? 76 |
Offeror's heirs b/c recording statute does not protect heirs (unless Shelter rule applies)
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[Recording System - BFP]
What are the three types of notice that a BFP must lack, and what do they entail? 76-77 |
-Actual (literal knowledge)
-Inquiry (B has a duty to actually inspect property) -Record (do title search) |
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[Recording System - Statutes]
To prevail in a notice statute jurisdiction, what must a B do? 77 |
Just be a BFP
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[Recording System - Statutes]
To prevail in a race notice statute jurisdiction, what must B do? 77 |
Be a BFP -and- record first
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[Recording System - Statutes]
How to identify race-notice vs. notice statute 77 |
Race-Notice: "... is FIRST recorded"
Notice: "...is recorded" |
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[Recording System - Chain of Title Problems]
Effect if a BFP takes, but then transfers to another person ("C") who DOES have notice of the prior deed? 78 |
Shelter Rule applies: "C" takes, even though she had notice; "C" simply takes the place of the original BFP
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[Recording System - Chain of Title Problems]
What is a "wild deed" and what is its effect on record notice? 79 |
A Wild Deed is a deed that is not properly recorded in the chain of title, so a title search would not reveal its existence
For MBE: Wild deed CANNOT give record notice (and thus a THIRD party that buys as a BFP takes) |
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[Recording System - Estoppel by deed]
What is estoppel by deed? 80 |
A person who sells a property, without actually owning it first, but who later acquires the property -- the original sale is treated as being valid
BUT, a person who later is a BFP of the property acquires on date of record (in record-notice jur) **See example on p. 79-80 |
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[Mortgages - Creation]
What is a mortgage's elements 80 |
-Debt,
-With a voluntary lien to secure |
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[Mortgages - Creation]
What is the Term for the bank party to the mortgage? 81 |
MortgaGEE
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[Mortgages - Equitable Mortgages]
What is an equitable mortgage? 81 |
Where parties understand a property is mean to be the security for a loan, but instead the property owner HAND OVER THE DEED IN total
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[Mortgages - Equitable Mortgages]
How can the seller prove the deed was really only conveyed to get the loan? 81 |
Can use extrinsic parole evidence
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[Mortgages - Equitable Mortgages]
What effect if the creditor sells to a subsequent BFP, if there was an equitable mortgage? 81 |
The original seller is screwed -- the BFP keeps the land
Original owner can only sue the creditor for fraud and sale proceeds |
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[Mortgages - Party Rights]
What rights do each party to a mortgage hold? 81 |
FOR MBE: Lien theory
--Mortgagee holds a lien --Mortgagor holds title and the right to posses FOR PA: Title theory --Mortgagee holds title --Morgagor holds right to posses |
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[Mortgages - Transfer of interests]
The mortgage always follows what? 82 |
Mortgage always follows a properly transfered note
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[Mortgages - Transfer of interests]
How can a creditor-motgagee transfer its interest? 82 |
1-Endorse and deliver
2-Execute in a separate document of assignment |
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[Mortgages - Transfer of interests]
What is the effect of a properly transferred mortgage from one mortgagee to another? 82 |
The new mortgagee becomes a holder in due course
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[Mortgages - Transfer of interests]
Elements to meet the holder in due course requirement 83 |
SHORT VERSION - ORIGINAL Note is:
-Signed -Actually delivered -Taken w/o notice of illegality -Paid with NON-nominal sum |
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[Mortgages - Transfer of interests]
What additional rights/benefits does a holder in due course have? 82 |
Takes mortgage free of ALL personal defenses, including:
-Lack of consideration -Fraud in inducement -Unconscionability -Waiver -Estoppel |
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[Mortgages - Transfer of interests]
What defenses is a holder in due course still subject to? 83 |
***MAD FIFIx4
-Material Alteration -Duress -Fraud in Factum (missrep. about nature of instrument itself) -Illegality -Infancy -Insolvency -Incapacity |
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[Mortgages - Transfer of interests]
Effect of transfer of property subject to a mortgage on the subsequent buyer? 84 |
The later buyer TAKES "SUBJECT" to the mortgage b/c he's on record notice (+ bank recorded first)
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[Mortgages - Transfer of interests]
Effect if a subsequent buyer "assumes" a mortgage? 85 |
Subsequent buyer is primarily liable (and the original mortgagor remains secondarily liable)
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[Mortgages - Transfer of interests]
Effect if a subsequent buyer takes "subject to" a mortgage? 85 |
Subsequent buyer is NOT liable (and the original mortgagor remains personally liable)
BUT PROPERTY CAN STILL BE FORECLOSED ON! |
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[Mortgages - Foreclosure]
What effect if the proceeds from a foreclosure sale aren't enough to cover the amount owed? 86 |
Creditor can being a deficiency action (or can accept deed in lieu of foreclosure)
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[Mortgages - Foreclosure]
What effect if the proceeds from a foreclosure sale result in a surplus? 86 |
Excess $ is distributed to the junior creditors
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[Mortgages - Foreclosure]
What's the order of $ distribution after a foreclosure sale? 86 |
-Atty fees
-Foreclosure expenses -Accrued interests in 1st bank's lien |
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[Mortgages - Foreclosure]
Effect of foreclosure by second lien holder? 87 |
Terminates interests of those subordinate, BUT senior interests remain
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[Mortgages - Foreclosure]
In order to effectuate a foreclosure, what other parties must be notified, and what result if they are not notified? 87 |
Creditor must notify ALL interests junior to its own, otherwise the lower creditors retain their creditor interest
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[Mortgages - Foreclosure]
Effect on a subsequent purchaser on a property that is still subject to a senior creditor? 88 |
Buyer is not PERSONALLY subject to pay, but the senior creditor can STILL foreclose
THEREFORE, the buyer should only have the FMV of the property MINUS the amount of the security still owed on teh property to the senior creditor |
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[Mortgages - Priorities]
What does a mortgagee have to do to make sure they properly get paid as a creditor down the line? 88 |
Mortgage MUST BE RECORDED
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[Mortgages - Priorities]
What is a purchase money mortgage? 89 |
A mortgage given to secure a loan to BUY the encumbered property
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[Mortgages - Priorities]
What is the order of priority of mortgages? and Exception 88 |
First in time, 1st in right
***EXCEPTION: The purchase money mortgage has SUPERPRIORITY (even if not recorded first -- will be treated as first) |
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[Mortgages - Priorities]
What is an after-acquired collateral clause? 89 |
It's a clause that allowed a mortgaGEE to secure a property against FUTURE land purchases
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[Mortgages - Redemption]
What are the two types of redemption? 89-90 |
Redemption in equity
Statutory redemption |
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[Mortgages - Redemption]
What does redemption in equity allow? 90 |
Up to the date of the actual foreclosure sale, debtor can pay back-owed money, including:
-All missed payments -Interest -Costs -MAYBE full balance and accrued interest if there is an acceleration clause |
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[Mortgages - Redemption]
Is the equitable right to deem waivable by the mortgagor? 90 |
NO
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[Mortgages - Redemption]
What is statutory redemption? 90 |
Some states allow a mortgageor the right to redeem AFTER the foreclsure sale, nulifying the foreclosure sale
***NOT recognized in NY or PA |
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[Lateral Support]
What liability of a landowner's excavation causes a neighbor's land to cave in? 91 |
NOT strict liability -- negligence action
To get strict liability, the neighbor has to show that the land would have collapsed in its NATURAL STATE |
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[Water Rights]
What are the two types of water doctrines applicable to streams, rivers, and lakes? 91 |
-Riparian
-Prior Appropriation |
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[Water Rights]
What rights does the riparian doctrine create? 91 |
Water belongs to those who own the land bordering the watercourse
Those "riparians" must make reasonable use, and will be liable to other riparians if they act unreasonably |
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[Water Rights]
What rights does the prior appropriation doctrine create? 91 |
-The water belongs to the STATE, and the state can sell the right to divert and use the water
-The rights are determined in priority of beneficial use, such as agriculture |
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[Water Rights]
What is the test for groundwater (percolating water) rights? 92 |
Surface owner is entitled to reasonable use, but must not be wasteful
(some eastern states have rule for absolute ownership - including right to export water for sale) |
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[Water Rights]
What are the two doctrines of surface water rights/rules? 92 |
-Common enemy rule
-Natural flow rule |
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[Water Rights]
What is the common enemy rule? 92 |
Landowner may change any drainage to combat the flow of surface water (even if it hurts others lots)
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[Water Rights]
What is the natural flow rule? 92 |
Modified the common enemy rule and requires that any change to surface flow must not unnecessarily harm others land
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[Possessor's Rights]
What is the definition of trespass? 92 |
Invasion of land by tangible physical object
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[Possessor's Rights]
What type of action must a person bring to stop a trespasser? 92 |
Ejectment
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[Possessor's Rights]
What is the rule for nuisance? 93 |
-Substantial, and
-Unreasonable -Interference w/ another's enjoyment of land EXs: noise/odors |
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[Possessor's Rights]
A defense to nuisance 93 |
Hypersensitivity
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[Zoning]
What gives a state the right to enact zoning ordinances? 94 |
The police power
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[Zoning]
What is a variance? And how is one attained? 94 |
Allows flexibility in zoning by shoing:
-Undue hardship -Won't decrease value of surrounding property NOTE: this is an administrative action: zoning board |
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[Zoning]
What effect if a land that used to conform to a zoning requirement is not nonconforming? 95 |
Cannot eliminate/stop the property from continuing prior use, else it's a taking w/o just compensation
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[Zoning]
What is the test for an unconstitutional exaction? 95 |
Occurs when gov't seeks amenties in exchange for variances or permission to build
Exaction must be reasonably related in NATURE and SCOPE to the IMPACT of the proposed development |
