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206 Cards in this Set
- Front
- Back
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What are the 4 exceptions to the rule that a life tenant must not consume or exploit natural resources on the property?
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PURGE
Prior Use, Reasonable Repairs, Grant, Exploitation (meaning the land is suitable only for exploitation, like a quarry) |
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Has the doctrine of worthier title been abolished in NY?
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YEs, with respect to transfers taking effect after 1967
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What are the three kinds of vested remainders?
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1. Indefeasibly Vested Remaineder
2. The vested Remainder Subject to Complete Defeasance 3. The vested remainder subject to open |
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What is the indefeasibly vested remainder? Hint N-Synn
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No strings attached. The holder of this remainder is certain to acquire an estate in the future with no conditions or no strings attached.
Eg. "To A for life, remainder to B." IF B dies, it goes to his heirs. |
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What is the vested remainder vested subject to complete defeasance?
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You have it, but you could lose it.
Remainderman's right to possession could be cut short because of a condition subsequent. "To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C." Note: A has a life estate B. the vested remainder subject to complete defeasance c. A shifting defeasible executory interest O: A reverson in case no one exists. |
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What is a vested remainder subject to open?
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A remainder vested in a group of takers, at least one of whom is qualified to take possession, but more class members can come in to diminish your shares.
To A for life, then to B's Children" A is alive, B has two children, C and D. |
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What is a vested remainder closed?
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Just like the preceding example, but once B or A dies, it closes. A class closes when any member can demand possession.
This is known as the CL rule of Convenience. |
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Distinguish remainders from executory interests?
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Remainders are going to get it, most likely. Executory interests might not. They are waiting in the wings. Remainders are forrest gump. Executory interests are Dr. Evil.
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What are the two types of Executory Interests?
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1. Shifting Executory Interest (To A and his heirs, but if B returns from Canada sometime next year, to B and his heirs)
"You don't have it, someone else does, but it could shift to me" 2. Springing Executory Interest ("To A, if and when he marries") You don't have it, but you could spring up and take it." |
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In NY is there a difference between executory interests and contingent remainders?
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No. They are both called remainders subject to a conditiion precedent.
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What is the Rule against Perpetuities?
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Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
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What is the 4 step technique for assessing potential RAP problems?
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1. Determine which future interests have been created by the conveyance
2. Identify the conditions precedent to the vesting of the suspect future interest 3. Find a measuring life. 4. Ask: will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder can or cannot take? |
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Is there a RAP here: "To A for life, then to the first of her children to reach the age of 30." A is 70. Her only child, B, is 29 years old.
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B gets nothign because of the RAP. A could have a child. then die. and b could die. Then the condition precednet could occur more than 20 years after the death of a measuring life.
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What is the "bad as to one, bad as to all" rule?
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Its a common law RAP such that if it is possible that a disposition might vest too remotely with respect to any member of the class
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Give an illustration of the "bad to one, bad to all rule"
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"To A for life, then to such of A's children as live to attain the age of 30." A has two children, B and C. B is 35 and C is 40. A is alive. " In the end, we get a life estate in A and reversion in O.
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What are the two bright line rules of common law RAP?
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1. Gift to an open class that is conditioned on members surviving to an age beyond 21 violates the common law RAP
2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within whihc it must vest violates the RAP. |
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What is an example of a shifting executory interest violating the RAP?
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"To A and his heirs so long as the land is used fro farm purposes, and if the land ceases to be so used, to B and his heirs."
A has a fee simple determinible O has the possibility of reverter. |
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What is the result of "To A and his heirs but if the land ceases to be used for farm purposes, to B and his heirs."
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A gets a fee simple absolute. B gets shit because of the RAP, and O gets shit as well.
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What is the charity- to charity exception?
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"TO the american red cross, so long as the premises are used for Red Cross Purposes, and if they cease to be so used, then to the YMCA." Is OK bc of this exception. Normally it would be void under the RAP and just be a fee simple determinible, and O has the possibility of reverter.
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Are the common law RAP all valid?
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No- they have been modified because they are insane.
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What is the "wait and see" or "second look doctrine?"
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It eliminates the "what if" or "anything is possible" line of inquiry.
The validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of our measuring life. |
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What does the Uniform Statutory Rule Against Perpetuities do (USRAP)?
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COdifies the common law RAP and, in addition, provides for an alternative 90 year vesting period.
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What is the "cy pres doctrine"
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It means "as near as possible" and it gives the court the discretion to tweak circumstances that would violate RAP in a way that closely matches grantor's intent.
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Both the "wait and see" and USRAP reduce the offensive age contingency to ____
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21 years
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What version of RAP does New York apply?
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The common law. they reject "wait and see" and "cy pres" except for charitable trusts and powers of appointment.
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Does NY reduce the age contingency to 21?
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Yes, where an interest would be invalid only because it is made to depend on any person having to attain an age in excess of it.
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How does the NY perpetuitities reform statute reform the fertile octogenarian principle?
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The NY statute presumes that women cant give birth after 55
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What is the NY suspension rule?
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an interest is void if it suspends the power to sell or transfer for a period longer than lives in being + 21 years.
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What is a joint tenancy?
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owned by 2 or mor w/ right of survivorship
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What is a tenancy by the entirety?
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A protected marital interest bw H and W with the right of survivorship
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What is a tenancy in common?
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owned by 2 or more with no right of survivorship.
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What are the 2 distinguishing characteristics of a joint tenancy?
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1. The right of survivorship- when one joint tenant dies, his share passes automatically to the surviving joint tenants
2. A joint tenant's interest is inalienable. It is neither descendible nor devisable. |
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How do you create a Joint Tenancy? Remember T-TIP
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T-TIP
T: at the same TIme T: By the same TItle I: With identical, equal interests P. Identical rights to Possess the whole. |
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In addition to the T-TIP 4 unities, what else must the grantor do to create the Joint tenancy?
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Grantor must clearly state the rights of survivorship.
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Why under CL did people have to use straws to create joint tenancies?
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If i own blackacre and want to create a joint tenancy with Diddles, in order to get the 4 uniities (especially time and title) i need to use a straw.
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Do we still use straws in NY?
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No. they've been done away with by statute.
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How do you sever a joint tenancy? Remember SPAM
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Sale, Partition and MOrtgage. When anything happens, it creates a tenancy in common.
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What happens if there's a joint tenancy with more than two joint tenants and one of them sells?
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The joint tenancy remains in tact between the nonsellers for whatever portion wasn't sold. The other guy has a tenancy in common vis a vis the others.
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What is the doctrine of equitible conversion and how does it relate to joint tenancy?
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Equity regards as done that which ought to be done.
A joint tenant's mere act of entering into a contract for the sale of her share will sever the joint tenancy as to the contracting party's interest. |
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What are the 3 variations of severance and partition?
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1. By voluntary agreement
2. By Partition in kind 3. By forced sale. |
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How does severance and mortgage end the joint tenancy?
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Most states don't follow it. NY follows the lien theory. For them, when one joint tenant executes a mortgage or lien on his or her share, it severs the joint tenancy. Under the lien theory, this doesn't happen.
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What is the Tenancy by the Entirety?
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It can only be created by H and W. In the states that recognize it, it arises presumptively in any conveyance to H and W unless clearly stated otherwise.
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Why does the lecturer want me to remember "Can't Touch this" wrt Tenancies by the Entirety
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bc the are a protected form of co-ownership. creditors of one spouse can't reach it.
also, neither tenant, acting alone, can defeat the right of survivorship by unilateral conveyance to a 3rd party. |
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What is the NY distinction wrt tenancies by the entirety?
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if one spouse mortgages his interests, his creditors may enforce against that interests, but only as to that share. further the non deadbeat spouse rights, incdluding the right of survivorship, are not compromised.
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GIve me an example of how the tenancy by the entiret works.
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Tony and Carmella, married, own blackacre as tenants by the entirety. Tony then secretly transfers his interest to Uncle Junior. What does uncle junior have? NOTHING
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In a tenancy in common, each co-tenant owns an ____ ____ and each has a right __ ____ ___ _____.
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an individual pact, to possess the whole
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In a tenancy in common, each interest is ______, ____ and ______. There are no ______ ______ between tenants in common.
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descendible, devisable, and alienable;
survivorship rights. |
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In a tenancy in common, the presumption favors ______ __________ __ ____
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The tenancy in common.
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Each co-tenant is entitled to use and enjoy the ____. If another co-tenant wrongfully excludes another co-tenant from possession of the whole or any part he has committeed __ _____
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whole, wrongful ouster
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Absent ouster, are co-tenants in exclusive possesion liable for rent?
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No
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Are co tenants entitled to their portion of the rent from third parties?
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YEs
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Can a co-tenant aquire title from another co-tenant through adverse possession?
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No. Not hostile because there was no ouster.
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What is the new NY law on AP by co-tenant
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A co-tenant may aquire full tenancy by AP if in exclusive possession for 20 consecutive years, under a theory of implied ouster
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What are repairing co-tenants entitled to?
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A right to contribution for necessary repairs (in the appropriate percentage) provided that she has told the others of their need.
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During the life of the co-tenancy, is there right to "improvements"
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There is no right to improvements. But at partition, co-tenant is entitled to a credit equal to any increase in value caused by her efforts. Also, the so called "improver" is liable for any decrease in value caused by her efforts.
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True or false, a joint tenant or tenant in common has a right to bring an action for partition.
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Ture
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What is a Tenancy for Years?
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A lease for a fixed period of time (doesn't have to be for years)
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Is notice needed to terminate a Tenancy for Years?
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No, bc it states from the outset that it will terminate.
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How long must a term of years be before it must be in writing because of the statute of frauds?
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1 year
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What is a Periodic Tenancy?
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A lease which continues for successive intervals until L or T give proper notice of termination
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What are the two ways the Periodic Tenancy can arise?
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Expressly or by implication
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What are the three ways a Periodic Tenancy can arise by implication?
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1. Land is leased with no mention of duration, but provision is made for prent payments at intervals
2. An oral term of years in violation of the statute fo frauds creates an implied periodic tenancy measured by the way rent is tenured 3. The holdover- if the L cashed the check of a T who has overstayed his lease, this is what you get. |
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In NY, what kind of implied periodic tenancy is created by the landlord who elects to holdover a tenant?
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A month to month periodic tenancy.
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How do you terminate a periodic tenancy?
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Notice (usually written), at least equal to the length of the given period unless otherwise agreed. If tenancy is year to year or great, you need 6 months notice
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If L leased Blackacre to T on 1.1.03 for a month to month periodic tenancy, on 5.15.03 T sends written notice of termination. T is bound until?
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June 30
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What is a tenancy at will?
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A tenancy for no fixed duration. "To T for as long as L or T desires."
Unless the parties expressly agree to a tenancy at will, the payment of rent will cause a court to treat it like an implied periodic tenancy. |
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Can the tenancy at will really be terminated "at will"
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Not really, there must be a reasonable demand to vacate. In NY, a LL must give a minimum of 30 dayswritten notice.
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What is a tenancy at sufferance?
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Is creatred when T has wrongfully held over past the expiration fot he lease. We give this wrongdoer a leasehold estate to permit L to recover rent.
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How long does a Tenancy at Sufferance last?
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Only until L evicts T or elects to hold T to a new tenancy.
In NY, L's acceptance of rent subsequent to the expiration of the term creates an implied month to month periodic tenancy |
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What are the tenant's 3 duties?
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T's Liability to third parties
T's duty to repair T's duty to pay rent. |
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Under tort law, what T's liability to third parties
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T must keep premises in reasonably good repair, T is liable for injuries sustained by 3rd parties T invited, even where L promised to make all repairs
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What is T's duty to repair where the lease is silent?
What happens if force majure? |
T must maintain the premises and must make ordinary repairs. He must not commit waste.
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What is the law of fixtures?
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A fixture is a once movable chattel that, by virtue of its annexation to realty objectives shows intent to permantly improve the realty (heating ducts, furnace, etc)
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May T remove a fixture if he installed it?
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No! Fixtures pass with ownership of the land.
However, not eveything is a fixture. The express agreement acontrols. IN the absence of agreement, t may remove a chattel that she has installed so long as removal doesn't cause substantial harm to the premises. |
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What is T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
Distinguish bw NY and CL |
At CL, T was responsible for any loss to the property, including loss due to force majure.
in NY, absent tenant's express undertaking to restore the premises in the event of their destruction , if the premises are destroyed through no fault of T, T may quit the premises and surrender possession w/o any further duty to pay rent. |
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What are the L's options if T doesn't pay his rent?
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1. Evict through the courts
2. Continue the relationship and sue for rent |
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What must a LL not do?
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Engage in self help. It is punishable civilly and criminally.
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What if T breaches his lease
Remember SIR |
1. Surrender. L could choose to treat is as surrender. Surrender must be in writing if unexpired term is greater than 1 year.
2. Ignore the abandonment and hold T responsible for unpaid rent (minority rule) 3. Re-let the premises on the wrongdoer tenant's behalf and hold him or liable for any deficiancy. (in NY, LL does not have to mitigate damages when tenant abandons the premises. ) |
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What is the duty to deliver possession?
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Requires that L put T in physical possession of the premises. If can't do it, damages. (American rule is that LL only needs to deliver legal possession)
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What is the implied covenant of quiet enjoyment?
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APplies to residential and commercial. T has a right to quiet use of the premises without interferance from L.
This is breached by actual wrongful eviction and constructive eviction. |
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What is constructive eviction?
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To have a claim for constructive eviction....SING
Substantial Interference (chronic problem L is not addressing) N Notice Goodbye- T must vacate w.in an reasonable time after L fails to fix the problem. |
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Is LL liable for acts of other tenants?
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L must not permit a niusance on the premises
L must control common areas. |
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What is the implied warranty of habitability?
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The Premises must be fit for basic habitation.
The appropriate standard may be supplied by local housing code or independent court conclusion. Examples : no running water, no heat in winter |
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What are T's entitlements when the implied warranty of habitability is breached? MR3
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Move- move out
Repair and deduct cost from rent Reduce Rent or withhold rent until court determines fair rentail value. Typically, must put money in escrow Remain in possession, pay rent and affirmatively seek damages. |
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Is T free to sublease?
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Yes, in the absence of a prohibition in the lease. But L can prohibit it and T can't unless he gets prior written consent. However, once L consenst, he constents for all time, unless L reserves the future rights rxpressly.
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What is the law in NY on subleases and assigning?
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Unless the lease povides otherwise, a residential T may not assign without L's written consent. A T in a resident building has the right to sublease subject to L's written consent. Consent to sublease cannot be unreasonably withheld.
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When I sublease to someone, he and my old landlord are __________ and it means all the covenants that run with the land ______
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in privy of estate, are liable to each other for
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WHen I sublease to someon, he and my old landlord are NOT ___ ____ ____
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Privy in contact. I am however still in privy of contract with him. and we are still secondarily liable to each other.
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What about subleases?
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L and sublessee are in neither privity of estate nor privity of contract
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What is the common law of caveat lessee?
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Let T beware. In tort law, L was in no duty to make the premises safe.
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What were the 5 most important exceptions to the common law of caveat lessee? CLAPS
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1. Common areas
2. Latent defects rule 3. Assumption of reparies 4. Public use rule (you're not liable for deffects in public spaces 5. Short term lease of furnished dwellings (L's responsible for any deffect that proximately harms T) |
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What are the 4 negative easements? Remember LASS
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Light
Air Support Stream water from an artificial flow. |
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How are negative easements created?
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They can only be created expressly, by writing signed by the grantor. there is no natural or automatic right to a negative easement.
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What is an esement appurtenant?
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It benefits its holder in his physical use or enjoyment of his property.
"it takes 2" parcels of land involved (a dominant tenement which derives the benefit of the easement and a servient tenement |
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what is an easement in gross?
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Confers upon its holder some personal or pecuniary advantage that is not related to use or enjoyment of his land. Servient land is burdened, no dominant tenement. Eg. Right to place a billboard.
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How do easement appurtunenant transfer?
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Automatically. The burden, however, will not pass if the bonafide purchaser did not have notice.
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Are easements in gross transferable?
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no, unless it is commercial
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HOw do you defeat "hostile use" requirement of AP?
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Give them permission!
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How does an easement terminate? ENDCRAMP
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Estopel
Necessity Destruction of the servient land Condemnation of the servient estate (by eminent domain) Release Abandonment Merger doctrine Prescription |
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How does Estoppel work to end an easement?
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I say i don't want to use your land as an easement anymore. You build a swimming pool. I am estopped from enforcing the easement
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How does necessity work to end an easement?
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If it was created by necessity, as soon as the necessity expires, its done unless it was nonetheless created by express grant
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How does abandonment work to end an easement?
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Mere nonuse is not enough. Must do something like build a fence so you can no longer reach the Rape path even if you want to. Then you lose the rape path.
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How does prescription work to end an easement?
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Its like reverse adverse possession.
Example : i have an easement of right away across Deej's land. Deej puts up a chain link fence to block my right of way. OVertime, B may succeed in extinguishing my easement. |
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What is a license?
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Its a mere privilege to enter another person's land for some delineated purpose. Like a ticket.
Not subject to statute of frauds and need not be in wriitng They are freely revocable. |
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AN oral easement is essentially a ______
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A freely revocable license.
Sure man, you can have the right of way across my land. |
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What is the profit? What rules does it follow?
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Entitles holder to enter the servient land and take from it the soil or minerals or timber, etc,
The profit shares all the rules of easements. |
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What is a covenant?
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A promise to do or not do something related to land. It is unlike the easement because it is not the grant of a property interest but rather a contractural limitation or promise regarding land.
In covenant parlance, one tract is burdened by the promise and another is benefited. |
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How do you remember if burden has run? Remember WITHN
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Writing - the original promise has to be in writing
Intent- the original parties had to intend that the covenant would run Touch and concern the land Horizontal and Vertical Privity Notice |
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Elaborate on horizontal and vertical privity?
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Horizontal privity refers to the nexus between the original promising partners
Requires that the be in a grantor/grantee, mortgagor/mortgagee, landlord/tenant relationship (horizontal privty) Vertical privity means there must be some nonhostil nexus between A and A-1 |
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How does benefit of the covenant run? Remember WITV
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Writing
Intent Touch and Concern Vertical PRvity Horizontal PRivity is not required Nor is notice |
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What's the main difference bw burdens running and benefits running?
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Burdens are tougher to show. Its absence is why some burdens won't run.
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What is an equitable servitude?
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A promise that equity will enforce against successors.
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How do you create an equitable servitude?
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Remember WITNES
Writing Intent Touch and Concern Notice NO NEED FOR PRIVIT |
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what is the implied equitable servitude?
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Arises when there is a common scheme. 45 lots, all covenant saying they are residential. A then sells one to commercial entity t. He can be enjoined if at the time sales began, A had a scheme of residential development that included the D's lot. The defendant lotholder also had to ahve notice of the promise contained in the prior deeds.
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What are the three forms of notice that might be imputed to the dude who buys a lot in a residential neighborhood, tries to open a convenience store and gets sued?
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Acutal notice
Inquiry notice (it was obvious dude) Record Notice (the public documents said so) |
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Reconcile the split in the courts on record notice
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The better view is that subsequent buyers do not have record notice. This puts burden on seller to put it in the title. Much more efficient
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What is an equitable defense to an enforcement of an equitable servitude?
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Changed COnditions. Won't work though unless its so pervasive the entire area or subdivision has changed.
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What is the basic concept of Adverse Possession?
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Possession, for a statutorily prescribed period of time can, if certain elements are met ripen into title.
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What are the elements of adverse possession? Remember COAH
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1. Continuous uninterrupted possession possession for the given statutory period.
2. OPen and Notorious- the sort of ownership the usual owner would make under the circumstances 3. Actual- can't be symbolic 4. Hostile- possessor doesn't have owner's consent to be there |
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True or False, the possessor's subjective state of mind is all that matters.
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False. the possessor's subjective mind is irrelevent. There's a recent NY Ct. of Appeals case that says possessor's actual knowledge that a 3rd party holds title is irrelevent.
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What is tacking?
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To get AP, you can tack on to your time the time your predecessor was on the land so long as there was privity, which is satisfied as any nonhostile nexus, such as blood, contract, a deed, or a will
Tacking is not allowed when there has been ouster. |
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When will the SOL of AP not run against a true owner who is afflicted by a disability?
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IF they are afflicted by the disability at the inception. common disabilities are insanity, infancy, imprisonment.
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What is the two step process of every conveyance of real estate?
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1. The land contract
2. The closing, where the deed becomes our operative document |
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What must be included in the land contract?
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In order to satisfy the statute of frauds, it must be in writing, signed by the party to be bound. It must describe the land and statement of consideration.
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What happens if the land recited in the land contract is more than the actual size of the parcel?
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Specific performance w/ a pro rata reduction in purchase price.
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What is the Doctrine of Part Performance?
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Its the way around the statute of frauds which says you have to always put it in writing.....
It says you need two of the following three 1. B takes physical possession of the land 2. B pays all or part of the purchase price 3. B makes substantial improvements to the land. |
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How is risk of loss allocated once the land contract is signed?
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In equity, once the contract is signed, B is owner of the land, subject of course to the condition that he pay for it at closing.
In the interim, he is liable for all losses, including no fault unless the contract says otherwise. In NY, so long as buyer is without fault, the risk of loss remains with seller until buyer has title or takes possession. |
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What are the two implied promises in every land contract?
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1. Seller promises to provide marketable title at the closing
2. Seller promises not to make any false statements of material fact. |
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What is the standard for marketable title?
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Title free from:
reasonable doubt lawsuits and threat of lawsuits |
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What are 3 circumstances that will render title unmarketable?
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1. If any piece rests on Adverse Possession
2. No servitudes and mortgages (encumbrances) unless B has waived them 3. Property violates no zoning ordinances |
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In addition to holding liable for any false statements of material fact, what else are sellers liable for?
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Failing to disclose latent material defects and material ommissions
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Does a general disclaimer of liabiliy (for example, "property sold as is") work?
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No. It does not excuse seller for liability for fraud or failure to disclose.
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What is the NY distinction WRT 1-4 faimly dwellings?
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Sellers must provide buyers with a complete statutory disclosure form before the contract is signed
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Does the land contract contain any implied warranties of fitness or habitability?
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No. Caveat emptor.
***The implied warranty of fitness applies to sales of a new home by a buyer-vendor. |
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What does the land contract turn into at the closing?
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The deed. It passes legal title from seller to buyer
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How does a deed pass legal title?
***LED |
Must be "lawfully executed" (signed, describe land)
Must be delivered (can be physical, mail, agent, escrow.) - essentially a legal standard, based on present intent. Basically as long as he didn't reject it. |
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Can a deed, absolute on its face, be transferred with an oral condition?
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NO. The oral condition drops out.
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What are the three types of deeds?
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1. The quitclaim (the worst)
2. The general warranty (the best) 3. The Statutory Special warranty |
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Why is the quitclaim so bad?
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It contains no covenants, grantor isn't even promising that he has title to convey in the first place.
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What is a general warranty deed and why is it so good?
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Warrants against all defects in title, including those attributable to grantor's predecessors.
It also contains all 6 of the covenants. |
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What is the covenant of seisin?
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It means no outstanding claims on the property
[There's nobody trying to seisin the property] |
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what is the covenant of right to convey?
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Grantor promises he has the power to make this transfer. NO temporary restrictions on grantor's capacity to sell.
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What is the covenant against encumbrances?
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Grantor promises there are no servitudes or mortgages on the land.
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When does the statute of limitation begin to run on the covenant of seisin, right to convey and against encumbrances?
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Upon delivery becasue they pertain to current circumstances.
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When does the SOL begin to run for the future covenants, such as quiet enjoyment, warranty, and further assurances
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Not that future date
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What is the covenant for quiet enjoyment?
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Grantor promises grantee won't be disturbed in possession by a 3rd party's lawful claim of title.
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What is the covenant of warrant?
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Grantor promises to defend grantee should there be any lawful claims of titles brought by others
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What is the covenant for further assurances?
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Grantor promises to do whatever future acts are necessary to perfect grantees title if it later turns out to be imperfect.
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What is a statutory special warranty deed?
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Deed contains 2 promises grantor makes only on behalf of himself:
1. Grantor promises he has not conveyed this estate to anyone other than grantee 2. Grantor promises estate is free from encumbrances made by the grantor [look as far as i know, its a good title, but im not vouching for 50 years ago or whatever] |
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What is a statutory special warranty deed called in NY?
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A bargain and sale deed.
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What are the 2 Brightline rules regarding double dealers and the recording system
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If we are in a notice jurisdiction and B is a BFP, B wins no matter if he records first.
If we are in an race-notice jurisdiction, B wins if he records first. (NY is a race notice jurisdiction) |
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What is a BFP?
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One who purchases for value and without notice that someone got there first.
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If I buy Blackacre ofr 50K and its worth 100k, can i still be a BFP?
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Yes, as long as i remit substnatial pecuniary considerations.
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Do recording statutes protect donees?
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NO, unless the shelter rule applies.
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What are the three forms of notice a buyer may potentially be charged with?
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AIR
Actual Inquirty Record |
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What is the implication of inquiry and record notice being valid?
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It means you have to go the property yourself and check it out if someone else is in possession.
You also have to do a title check. |
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What is the SHelter Rule?
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O conveys to A, who does not record. Later O conveys to B, a BFP who records. B then conveys to C. IN the contest of A v C who wins? C. IN both a ntoice and race-notice state. Even if he know about the O-A transfer. It exists to protect B
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What is a wild deed?
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A deed with a missing grantor, an unconnected chain of title.
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O sells to A. A sells to B. B only records A-B deed. O then sells to C and C records. In the constest of B vs. C, who prevails?
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C wins in both a notice and race-notice state. He is a BFP and he has won the race to record.
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What is Estoppel by Deed?
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One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later aquires the interest that he had previously transferred.
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Give me an example of Estoppel By Deed?
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1950 O owns blackacre
1950 X sells it to A who records 1960 O sells Blackacre to X who records 1970 X sells Blackacre to B. B records B owns it in 1970 because he is a BFP and won the race to record. |
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How does one create a mortgage?
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A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt.
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A mortgage is the union of 2 elements. what are they?
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A debt
A voluntary transfer of a security interest in debtor's land to secure that debt. |
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What are the two types of mortgages?
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A legal mortgage (in writing, more common)
An equitable mortgage (you hand over your deed that is absolute on its face to the creditor) |
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ONce a mortgage has been created, what are the parties' rights?
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Unless and until foreclosure, debtor-mortgagor has title and the right to possession
Creditor-mortgagee has a lien. A rirght to look to the land in the event of default. |
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Can parties to a mortgage transfer their interests?
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Yes. The creditor-morgagee does so by either (1) endorsing the note and delivering it to transferee or (2) executing a separate document of assingment.
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what rights does the transferee get?
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He becomes a holder in due course, he takes the note free of any personal defenses that could have been raised against the original mortgagee like lack of consideration, fraud in the inducement, waiver, etc
thus the holder in due course may foreclose the mortgage despite the presence of a personal defense. |
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What are the "Real Defenses" that the holder of due course can still be liable for? *****MADFIFI
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Material Alteration
Durress Fraud in the Factum Incapacity Illegality Infancy Insolvency |
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What criteria must be met to be a holder in due course of the note?
DENGV |
1. Not must be negotiable, payable to named mortgagee
2. Originaly note must be endorse, signed by the named mortgagee 3. Original note must be delivered to transferee 4. Transferee must take note in good faith w/o notice of any illegality 5. transferee must pay value for the note, meaning some amount that is more than nominal. |
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In a notice jurisdiction, if i buy a property, im a BFP and it turns out later it was subject to a mortgage, am i liable?
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No. In a race-notice it depends on who recorded title first
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WHo is personally liable on the debt if O, our debtor-mortgagor, sells Blackacre to B?
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If B has "assumed the mortgage", Both O and B are personally liable. B is primarily liable and O remains secondarily liable.
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What if B takes "subect to the mortgage?"
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B assumes no personal liability and only O is personally liabe. But if recorded, the mortgage remains on the land, thus if O can't pay, the mortgage may be foreclosed.
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Assuming that our mortgagee-creditor must look to the land for satisfaction, how does he foreclose?
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You need a proper judicial proceeding. At foreclosure, the land is sold with proceeds going to satisfy the debt
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What if the proceeds from the sale of Blackacre are less than the amount owed?
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The mortgagee brings action against debtor for a deficiency judgment
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What if there is a surplus?
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Pay off the creditors in order of priority and any leftover goes to debtor
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What is taken off the top?
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attorney's fees, expenses of the foreclosure, accrued interest, first mortgage.
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Why does it suck to be a junior lienholder?
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Because after foreclosure, if you haven't been paid, you are fucked.
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What happens if you fail to include a necessary party in the foreclosure claims?
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It preserves the party's claim and his mortgage will remain on the land.
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Assume that Blackacre has a FMV of $50K, subject to 3 motgages. First bank is owed $30 K, Second Bank is owed $15K and third Bank is owed $10K. If Second Bank's mortgage forecloses, what effect?
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It does not affect First Bank's Mortgage. First Bank's mortgage will continue on Blackacre in the hand's of the foreclosure sale buyer.
Whoever buys it is not personally liable to First Bank, but since FIrst bank can foreclose whenever it wants, he will likely pay it off. |
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How will bidding proceed at the above example's foreclosure sale
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Should bid up to the FMV and whatever you owe to First Bank to get them off your back.
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Once recorded (which is very important for creditors to do BTW), how is priority determined?
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First in time, first in right.
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What is a Purchase Money Mortgagee
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I lend you money so you can buy a property and I get a security interest in that property as collateral.
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What type of priority do purchase money mortgagee have?
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Superpriority
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If I lend someone money and take a security interest in his land and future lands. ANd then that same dude borrows money from someone else for the sole purpose of buying Blueacre. And then O defaults on everything. Who gets blueacre?
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Not me.
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What is a subordination agreement?
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Its basically a private agreement whereby a senior creditor subordinates himself to a junior creditor.
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What is redemption in equity?
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Equitable redemption is universally recognized up to the date of sale, at any time prior to foreclosure sale, debtor has right to redeem, freeing it of the mortgage
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Once a valid foreclosure has taken place, what happens to the right of equitable reduction?
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Its gone
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How is the right of equitable redemption exercised?
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By paying off the missed payment [but not the full balance!!!!], plus interest and costs. What
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What about accelaration clauses?
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It permits the mortgagee to declare the full balance due in the event of default
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May a debtor/mortgagor waive the right to redeem in the mortgage itself?
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No, that's known as clogging the sink andn its prohibitied
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what is statutory redemption?
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Doesn't exist in NY. Its basically a second chance for the mortgagor debtor. He gets a chance, like 6 months usually to come up with the cash to buy his land back. He usually only pays the foreclosure sale price. The effect is to nulify the foreclosure sale and he's restored to title.
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When I cave in my neighbor's building , when am i liable?
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ONly when i act negligently. For him to collect, he has to show that none of the shit he built on his land contributed to his land's collapse.
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What is the riparian doctrine?
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Water belongs to those who won the land bordering the water course. . these people are known as riparians and share the right of reasonable use of the water. One riparian is liable if his or her use unreasonably interferes with other's use.
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what is the prior appropriation doctrine?
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Separates water from the land. Right to use the land is deterined by priority of beneficial use. The norm for allocation is 1st in time, 1st in use. A person can aquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including agriculture is sufficient to create the appropriation right
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What about groundwater?
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Surface owner is entitled to make reasonable use of groundwater, however the use must not be wasteful
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What about surfacewaters?
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Those which come from rain, springs, or melting snow. Its a common enemy: a landowner may change drainage or make any other changes on his land to combat the flow of surface water. Many court's have modified the common enemy rule to prohibit unnecessary harm to other's land.
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What is trespass?
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The invasion of land by tangible, physical object. TO get rid of them, bring an action for ejectment.
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What is a private niusance?
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The substantial and unreasonable interferance with another's use and enjoyment of land. Odors, noise, etc can give rise to nuisance
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How do courts treat the hypersensitive plaintiff?
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They lose when they sue for nuisance
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Define Eminent Domain?
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The govt's 5th amendment power to take private property for public use in exchange for just compensation
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What are the two types of takings?
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Explicit and Regulatory.
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What is the remedy for a regulatory taking?
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Govt mus either compensate owner or terminate the regulation and pay the owner for damages that ocurred while the regulataion was in effect.
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What is zoning?
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Pursuant to its police powers, govt may enact statutes to reasonably control land use?
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What is a vairance?
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The principal used to achieve flexibility in zoning
The proponent must show undue hardship and (2) that the vairance won't cause a decrease in neighbor's property values. Variances are typically denied or granted by zoning boards. |
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What is a nonconforming use?
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A once lawful existing use now deemed nonconforming by a new zoning ordinance cannot be eliminated all at once unless just compensation is paid. Otherwise it could be deemd an unconstitutional taking.
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What are unconstitutional exactions?
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When the govt goes too far in asking builder to do things like build parks and streetlights in return for granting permits. to pass constitutional muster they must be reasonably related in both nature and scope to the impact of the proposed development.
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