Property 2

Front 1

zoning

Back 1

the state can enact statutes to reasonably control the use of land for protection of health, safety, morals, and welfare of its citizens. zoning power is based on the state's police power and is limited by DP and EP clauses of 14th and the "no taking without just compensation" of the 5th. cities and counties can exercise zoning power only if so authorized by a state enabling act.

Front 2

risk of mortgagee in possession

Back 2

most mortgagees don't want possession because of the risks of liability: duty to account for rents, duty to manage property prudently, potential tort liability, etc.

Front 3

cooperatives (co-ops)

Back 3

title to land and buildings is held by a corporation that leases individual apartments to its shareholders. because of their economic interdependence and because the individual owners are regarded as tenants, a direct restraint on the transfer of an individual interest is valid.

Front 4

prior appropriation doctrine

Back 4

individuals acquire rights by ACTUAL USE. appropriative rights are determined by priority of beneficial use. if there is a decrease in flow, priority is given in termes of appropriation. an appropriative right can be lost by adandonment.

Front 5

denial of ALL economic value

Back 5

is a taking (unless use was prohibited by nuisance or property law when owner acquired the property.)

Front 6

redemption in equity

Back 6

at any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due. if the note or mortgage contains an acceleratin clause, the full balance of the note or mortgage must be paid to redeem. this right can not be waived in the creation of the actual mortgage.

Front 7

zoning terms

Back 7

-nonconforming use (a use that exists at the time of a passage of a zoning act that does not conform to the statute ca NOT be eliminated at once.
-special use permit (must e obtained even though zoning is proper for the intended use; often required for hospitals, funural homes, drive-thrus, etc.).
-variance (a departure from the literal restrictions of a zoning ordinance granted by administrative action).
*zoning ordinances are generally invalid if they have no reasonable relation to public welfare, are too restrictive, discriminatory as to a particular parcel, beyond grant of authority, violate DP, or are racually descriminatory.

Front 8

proceeds of sale

Back 8

proceeds are applied first to the expenses of the sale, attorney's fees and court costs, then to pay the principal and interest on the foreclosed loan, then to pay off any other junoir interests in the order of their priority, finally to the mortgagor.

Front 9

unconstitutional exactions

Back 9

local governments often demand, in exchange for zoning approval of a new prokject, that the landowner give up some land for a public purpose, such as street widening. these demands are unconstitutional under 5th and 14th unless:
-government demands are RATIONALLY CONNECTED to an additional burden that the project will place oin public facilities or rights; and
-the dedication is reasonably related in nature and extent to the impact of the proposed development.

Front 10

the title theory (mortgagee can habve possession ant any time)

Back 10

legal title is in the mortgagee until the mortgage has been satisfied or foreclosed. mortgagee iis entitled to possession upon demand at any time.

Front 11

condominiums

Back 11

each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas. since condo ownership is treated as a fee ownership, the ordinary rules on restraint on alienation apply.

Front 12

purchase money mortgages

Back 12

a PMM is a mortgage given in exchange for funds used to purchase the property. they are either given to the seller as a part of the purchase price or to a 3d party lender. PMMs have priority over non-PMMs executed at about the same time even if the nonPMM was recorded first. as between 2 PMMs, a seller's mortgage has priority over a 3rd party's. if ther are 3 3rd party PMMs, priority is determined by chrinological order. usually, 2 PMMs have notice of the other's existence; thus, the recording act are no help in determining priority.

Front 13

remedy

Back 13

if a regulation constitutes a taking, the government will be required to either compensate the owner for the property or to terminate the regulation and pay the owner damages for the temporary taking.

Front 14

ground water
(percolating water)

Back 14

4 doctrines determine rights for water recovered in wells:
-absolute ownership doctrine (owner of overlying land can take all the water she wats for any purpose)
-reasonable use doctrine (take what you want as long as it doesnt harm other owners who have rights in the same water)
-correlative rights doctrine (owners of overlying land own the underground water basin as joint tenants; each is allowed reasonable use)
-appropriative rights doctrine (priority of use determines; not ownership of land).

Front 15

unconstitutional takings and exactions

Back 15

a zoning ordinance may so reduce the value of real property that it equals a taking under the 5th ad 14th. if so, the local government must pay damages to landowner equal to the value reduction. if the ordinance regulates activity that would be considered a nuisance under common law principles, it will not be a taking even if it leaces the land with no economic value.

Front 16

surface waters

Back 16

a landowner can use surface water (rainfall, seepage, etc.) within her boundaries for any purpose. Questions usually concern liability for changing natural flow by dikes, drains, etc. liability depends on which theory the state follows.

Front 17

right to excluse - remedies of possessor

Back 17

possessor of real property has right to exclude others. remedies for invasions include actions for:
-trespass (land invaded by tangible physical object
-private nuisance (invaded by intangibles like odor and noise)
-continuing trespass (repeatedly invaded by trespasser)
-ejectment or unlawful detainer (to remove a trespasser or tenant. can be joined with demand for money damages.)

Front 18

requirements to be a holder in due course of a note

Back 18

-note must be negotiable in form (payable to bearer or to the order ot he named payee with a promise to pay a certain amount, and no other promises)
-original note must be endorsed and signed by the named payee
-must be delivered to transferee
transferee must take in good faith and pay for value(no notice that it's overdue, dishonored, subject to a defense by the maker)

Front 19

denial of NEARLY ALL economic value

Back 19

if property is left with very little economic value, use a balancing test : social goals of the regulation; diminished value of property; owner's reasonable expectations for use of the property.

Front 20

3 surface water theories:
naural flor, common enemy, reasonable use

Back 20

-natural flow (civil law) theory (owners can't alter natural drainage patterns. reasonable changes may be allowed.)
-common enemy theory (owner can take any protective measures to get rid of the water (like dikes). but don't unneccessarily damage other's land.)
-reasonable use theory (balance the utility of the use against the gravity of the harm.
*these apply to redirecting surface water. you can CAPTURE as much as you want (in barrels, etc.)owners have no cause unless the diversionw as malicious.

Front 21

modification of priority

Back 21

generally, priority AMONG MORTGAGES follows the chronological order in which they were placed on the property. This may be changed by:
-operation of a recording statute if a prior mortgagee fails to record,
-a subordination agreement between senior and a junior mortgagees,
-a purchase money mortgage,
-modification of a senior mortgage (junior has priority over modification),
-granting of optional future advances by a mortgagee with notice of a junior lien (junior lien has priority over advances).

Front 22

due on sale clauses

Back 22

due on sale clauses appear in most modern mortgages. allows lender to demand full payment if mortgagor transfers any interest in the property without the lender's consent.

Front 23

possession before foreclosure

Back 23

when a mortgagor defaults on his debt, the mortgagee can foreclose on the mortgage. he may also WISH to take possession of property or receive the property's rents before foreclosure. look at theory of title.

Front 24

methods of transferring the note

Back 24

can be transferred by:
-endorsing it and delivering to transferee
-in a separate document of assignment.
only holders woh get note by endorsement and delivery are holders in due course.

Front 25

restitution

Back 25

while granting forfeiture, the vendor must refund the purchaser any amount by which his payments have exceeded the vendor's damage.

Front 26

statutory redemption

Back 26

about half the states allow mortgagor to redeem the property for some fixed period (6 months) AFTER THE FORECLOSURE SALE has occurred.

Front 27

priorities of a mortgage

Back 27

a mortgage's priority is usually determined by the time it was placed on the property. foreclosure destroys all interests junior to the mortgage being foreclosed, but does not affect senior interests.

Front 28

the intermediate theory

Back 28

legal title is in the mortgagor until default,and upon default it goes to the mortgagee. mortgagee can demand possession when a default occurs. practically, this acts like the title theory.)

Front 29

mortgagor consent and abandonment

Back 29

the mortgagee can take possession if the mortgagor gives consent or if the mortgagor abandons the property.

Front 30

receiverships

Back 30

most mortgagees attempt to intercept the rents before foreclosure by getting a receiver appointed by the court to manage the property. courts will appoint receivers for rental properties upon a showing that:
-waste is occurring
-the value of the property is inadequate to secure the debt
-the mortgagor is insolvent.

Front 31

benefits of holder in due course status

Back 31

he takes note free of personal defenses of maker but is still subject to real defenses. remember that if possession of note has been transferred by the original mortgagee, no payments made to him will count. holder of note can still demand payment, even if mortgagor had no notice of the transfer.

Front 32

transfer by mortgagee of note without mortgage

Back 32

the note can be transferred without the mortgage. mortgage will automatically follow unless mortgagee expressly reserves right to mortgage. no separate written assignment of mortgage is necessary.

Front 33

water rights concening watercourses (streams, rivers, lakes)

Back 33

there are 2 major systems for determining allocation of water in watercoursed:
-the riparian doctrine
-the prior application doctrine

Front 34

election of remedies

Back 34

the vendor must choose only one remedy (damages or specific performance)and forego all others.

Front 35

transfer by mortgagee - grantee takes subject to mortgage

Back 35

if grantee signs an assumpton agreement, he is primarily liable to the lender, and original mortgagor is secondarily liable as a surety. if no assumption agreement is signed, the grantee is not personally liable, and original mortgagor is personally and primarily liable. but if transferee doesn't pay, the loan can be foreclosed and he will lose his interest.
once a grantee has assumed a mortgage, any modification between original mortgagor and grantee will discharge original mortgagor from all liability.

Front 36

the lien theory of title (mortgagee can not have possession before foreclosure)

Back 36

the mortgagee is the holder of a security interest only. mortgagor is owner until foreclosure; the mortgagee can not take possession before foreclosure.

Front 37

theories of title

Back 37

mortgagee may have right ot take possession before foresclosure, depending on which theory of title the state follows. most follow title or lien theory. 3 theories ane title, lien, and intermediate.

Front 38

right to lateral support

Back 38

ownership of land includes right to have the land supported in its NATURAL STATE by adjoining land. a landowner is STRICTLY LIABLE if his excavation caused adjacent land to subside. an adjacent landowner is STRICTLY LIABLE for damage to buildings caused by excavation ONLY IF it's shown that the land would have collapsed in its natural state. otherwise, he's only liable for damage if his excavation was done negligently.

Front 39

right to subjacent support

Back 39

an underground occupant of land (a mining company, etc.) must support the surfacce and buildings existing on the date the subjacent estate was created. liability for subsequently constructed buildings requires negligence.

Front 40

right in airspace

Back 40

the right to airspace above a parcel is not exclusive, but owner is entitled to freedom from excessive noise.

Front 41

rights incidental to ownership of land
(natural rights)

Back 41

an owner of real property has the exclusive right to use and possess the urface, airspace and soil of the property.

Front 42

treat as a mortgage

Back 42

this requires a foreclosure sale because contract is treated as a mortgage.

Front 43

waiver

Back 43

a vendor's pattern of accepting late payments constitutes a waiver of the right to strict performance. to reinstate, the vendor must send the purchaser a notice of his intention to reinstate strict performance and must allow a reasonable time for the purchaser to make up any late payments.

Front 44

riparian doctrine

Back 44

the water belongs to those whoown the land bordering the watercourse. riparian rights attach to all contiguous tracts of land held by the same owner as long as one abuts the water. riparian owners can use water only in connection with the riparian parcel.

Front 45

equity of redemption

Back 45

contract purchaser has a grace period to pay the accelerated full balance of the contract and keep the land after defualt.

Front 46

installment land contracts

Back 46

most installment contracts provide for forfeiture rather than foreclosure, but courts use the following theories to avoid that harsh result:
-equity of redemption
-restitution
-treat as a mortgage
-waiver
-election of remedies.

Front 47

natural flow theory of the riparian doctrine

Back 47

a riparian owner's use resulting in substantial or material dimunution of the water's quantity, quality, or velocity my be enjoined.

Front 48

deficiancy judgments

Back 48

where the proceeds are insufficient to satisfy the mortgage debt, the mortgagee retains a personal cause of action against the mortgagor for the deficiency.

Front 49

reasonable use theory of the riparian doctrine

Back 49

(most common)all riparians share the right of reasonable use of the water. one's use is not enjoinable unless it substantially interferes with other's uses. to determine reasonable use, courts balance the utility of the owner's use against the gravaity of the harm. 6 helpful factors are: alteration of flow, purpose and extent of use, pollution, destination of water taken.

Front 50

natural versus artificial use for purposes of riparian doctrine

Back 50

natural uses (human uses - consumption, gardening) prevail over artificial uses (irrigation, manufacturing).

Front 51

foreclosure

Back 51

almost all states require foreclosure by sale, and the property is sold to satisfy the whole debt or part of it. all states allow sheriff's sales; some allow nonjudicial sales under a power of sale (usually for deeds of trust) foreclosure sales are usually conducted at an auction, and the lender is permitted to bid at the sale.