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155 Cards in this Set

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  • Back
What are the defeasible fees?
a. Fee Simple Determinable
b. Fee Simple Subject to Condition Subsequent
c. The Fee Simple Subject to Executory Limitation
How are defeasible fees viewed by courts?
Because courts disfavor restrictions any restrictions like these--MUST be clear: hopes, desires, or intentions not good enough
Are Absolute restraints void?
YES, this is why you may not have a defeasible fee: "O to A, as long as A never attempts to sell”
What is the Fee Tail?
a. No longer used
b. Created by: “To A and the heirs of his body”
c. Used to limit transfer to bequest to the blood line only
d. Instead, a Fee Simple occurs when a Fee Tail is intended.
What is a Fee Simple Determinable?
In NY: called Fee on Limitation
i. To create: “To A for so long as…” or “To A during…” or “To A until…”
ii. This estate is devisable, descendible, and alienable, BUT always subject to the condition
What Future interest follows a Fee Simple Determinable?
Future Interest: possibility of Reverter
Remember: Frank Sinatra Doesn’t Love Orville Redenbacher –or- Fee Simple Determinable [goes with] Possibility of Reverter
What is a Fee Simple Subject to Condition Subsequent?
NY: Fee on Condition
To Create: “To A, but if X event occurs, grantor reserves the right to reenter and retake
This estate is NOT automatically terminated; Grantor must exercise his future interest: the right of entry aka the power of termination (in NY called the right of re-acquisition)
What is a Fee Simple Subject to Executory Limitation?
To create: “To A, but if X event occurs, then to B”
This is just like the fee simple determinable, but here, if condition is broken, the estate is automatically forfeited in favor of the grantor
The future interest is a “Shifting Executory Interest”
Distinguish Fee Simple Subject to Condition Subsequent and Fee Simple Subject to Executory Limitation.
FSSCS is is NOT automatically terminated, to take, the grantor must exercise his right of entry;
FSSEL is automatically forfeited if condition is broken, in favor of the grantor by a “Shifting Executory Interest”
What must the holder of a life estate avoid?
Committing waste;
1. Life tenant ONLY entitled to ordinary use and profits from the land
2. Life tenant may not commit waste (since it will hurt future interest holders)
3 types of waste.
a. Voluntary or affirmative
b. Ameliorative
c. Permissive
What is voluntary or affirmative waste?
causing a diminution in value
When can a life tenant commit voluntary or affirmative waste?
PURGE
i. Prior use: may be continued(think open mines doctrine)
ii. Reasonable repairs: life tenant may consume natural resources in order to conduct reasonable repairs or maintenance
iii. Grant: the life tenant may exploit if specifically granted that right
iv. Exploitation: the land is suitable ONLY for exploitation (think quarry)
What is prevented under Ameliorative Waste?
i. Life tenant can NOT make improvements unless future interest holders consent
ii. NY: Life tenant may make reasonable improvements unless remaindermen object
What does Permissive Waste permit?
Life tenant must simply maintain the premises in good repair; pay taxes (up to income or profits or if no income, then up to fair rental value)
What Future interests follow a life estate?
1. Reversion; if held by grantor
2. Remainder; if held by 3rd party
Which Future interests are capable of creation in the grantor?
i. Possibility of Reverter; follows Fee Simple determinable
ii. Right of Entry; follows Fee Simple Subject To a Condition Subsequent
iii. Reversion; follows any estate other than above which is less than what the grantor started with
Which Future interests are capable only of creation in transferees?
i. Vested Remainder
ii. Contingent Remainder
iii. Executory Interest
Contingent Remainders Get what type of condition?
Condition precedent:
“To A for life, if B graduates from college, to B”
What if the condition preceent in a contingent remainder is never satisfied?
Grantor retains a reversion until the grantee satisfies the contingent remainder, converting it into an indefeasibly vested remainder.
What is The Rule of Destructibility of Contingent Remainders?
At Common Law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
What approach has replaced the destructibility of contingent remainders?
If the grant to the holder of the reversion has not vested by the end of the former estate, the estate reverts to the grantor.
What occurs when the contingent remainder's condition precedent is satisfied?
The holder of the reversion has a springing executory interest which springs.
What is the Rule in Shelley’s case?
If the grantor conveys: “ To A for life, then, on A death to A’s heirs.”; A’s life estate and the contingent remainder in A’s heirs merge and give A Fee Simple Absolute
What is the Doctrine of Worthier title?
i. If grantor tries to create a contingent remainder in his heirs as follows: “O who is alive, conveys to A for life then to O’s heirs”
ii. The remainder in O’s heirs is void and O gets a reversion
What is a Vested Remainder?
Vested Remainder is both created in an ascertained person and is not subject to any condition precedent
What are 3 types of Vested Remainders?
a. The indefeasibly vested remainder
b. The vested remainder subject to complete defeasance
c. The vested remainder subject to open
What is an indefeasibly vested remainder?
Holder is certain to take with no conditions attached
E.g.: “To a for life then to B”
What is the vested remainder subject to complete defeasance?
i. E.g.: “To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C”
iii. If B is under 25 at the time of A’s death, B still takes, however, B must live until 25 for his estate to retains his interest Otherwise B’s heirs lose it all, and C or C’s heirs take
What is a vested remainder subject to open?
i. Here, a remainder is vested in a group of takers, one of whom is qualified to take;
ii. Each class member is subject to diminution in value
iii. Additional class members can join
iv. E.g.: “To A for life then to B’s children.”
v. The class remains open until any member can demand possession e.g. A dies.
vi. Womb rule: if child in womb at time of devise then in class
Distinguish remainders from executory interests
1. Defined: an executory interest is a future interest in a 3rd party
2. 2 types: Shifting and Springing
Define a Shifting executory interest.
Always follows a defeasible fee and cuts short someone other than the grantor
E.g. “To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs”
i. B has a shifting executory interest
ii. A has a fee simple subject to B’s shifting executory interest
Define a Springing executory interest.
E.g.: “O to A, if and when he marries”
i. A has a springing executory interest
ii. O has a fee simple subject to A’s springing executory interest
What is the Distinction between contingent remainders executory interests in NY?
NY: has abolished the distinction between executory interests and contingent remainders, instead, both are now: Remainders subject to a condition precedent
What is the RAP?
Certain future interests are void if there exists the possibility, however remote, that the interest MAY vest more than 21 years after the death of a measuring life.
To what future interests does the RAP apply?
RAP only applies to contingent remainders, executory interests and certain vested remainders subject to open
How do you determine who is a measuring life?
Look for a person alive at the date of the conveyance and ask whether that person’s life or death is relevant to the condition’s occurrence
What is the crucial question to determine whether a future interest violates RAP?
Will we know, with certainty, within 21 years of the death of the measuring life, if future interest holders can or cannot take?
-If yes, future interest is valid and conveyance is good
-If no or any possibility that condition precedent could/could not occur more than 21 years after the death of the measuring life, the future interest is void
What is the Fertile Octogenarian Rule?
Presumes that a person is fertile no matter the age
Why does a gift to an open class, conditioned on members surviving beyond age 21, violates the RAP?
“Bad as to one, bad as to all” – every class member’s taking must occur within the RAP period, if it’s possible a future interest might vest too remotely to any member, entire class gift is void
What is USRAP Uniform statutory RAP?
Codifies common law RAP AND provides a simple 90 year vesting period alternative
What is “Wait and See” or “second look doctrine”?
Eliminates “what if” and makes the determination at the end of the measuring life
What is Cy pres?
As near as possible-
Court’s can reform bequests to get as close as possible to grantor’s intentions
ii. Under this doctrine, any offensive age will be reduced to 21 years
3 forms of concurrent ownership.
I. The Joint Tenancy
II. The Tenancy by the Entirety
III. The Tenancy in Common
3 elements of the joint tenancy.
a. Right of survivorship
b. Alienable but not descendible or devisable
c. Must be created by the 4 unities
in a joint tenancy what are the 4 unities?
T-TIP: Joint tenants must take their interests according to the 4 unities
i. At the same TIME
ii. By the same TITLE (same instrument)
iii. With IDENTICAL SHARES; and
iv. With rights to POSSESS the whole
What is a straw and why is it useful to create a JT?
Straw is a 3rd party who takes title in a straw transaction to convey it back with 4 unities
-Under NY, no straw nec. Parties can convey to themselves as JT
How do you sever a JT?
Remember SPAM:
1. Sale
2. Partition
3. And
4. Mortgage
How does sale affect a JT?
A joint tenant can sell her share only and NOT disrupt the JT as to other tenants; the buyer of the share holds as tenant in common
How does Partition affect a JT?
a. By voluntary agreement
b. By court order: partition in kind if best interest
c. Forced sale: best interest of all; land sold, proceeds divided
What distinguishes the JT from the TBE or TIC?
JT's must be equal iinterest holders in every way
How will a Mortgage affect the JT?
It depends on the jurisdiction
• Will sever the JT as to the encumbered share (minority rule – title theory)
• Will not sever the JT (majority rule – lien theory, NY follows)
How is a Tenancy by the Entirety (TBE) created?
Can only be created when husband and wife hold property with right of survivorship
Arises presumptively in any conveyance to H and W, unless clearly state otherwise
Can a TBE mortgage his interest?
Creditors of one spouse cannot touch the tenancy
Unilateral conveyance – neither tenant acting alone can defeat the right of survivorship by unilateral conveyance to a 3d party
Can a TBE mortgage his share in NY?
• NY, one spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share. Non-debtor spouse’s rights including survivorship must not be compromised
2 basic elements of the Tenancy in Common.
1. Each co-tenant owns an individual part and each has a right to possess the whole
2. Each interest is descendible, devisable and alienable. NO SURVIVORSHIP RIGHTS
How may percentage of ownership be alotted in a Tenancy in Common?
However the tenants please but they may all possess the entirety
What if one tenant limits another's use in a TIC?
It is considered wrongful ouster and the ousted party may collect rent from tenant in possession, pro rata
In a TIC, how are rent, improvements and repairs handled?
Rent from 3d parties – a co-tenant who leases all or part of the premises to a 3d party, must account to the others giving them their fair share of rental income
Repairs – repairing co-tenant enjoys right to contribution for necessary repairs, provided she has notified the others of the need for repairs
Improvements – during the life of the co-tenancy, no right to contribution for improvements
May a TIC take the whole by adverse possession in NY?
YES - NY – co-tenant may acquire full title by adverse possession if in exclusive possession for 20 continuous years (implied ouster)
When can co-tenants Partition?
a JT or TiC has a right to bring an action for partition
4 types of tenancies?
1. Tenancy for years
2. periodic tenancy
3. Tenancy at will
4. Tenancies at Sufferance (Hold-over T)
How do you know you have a Tenancy for Years (Estate for Years or Term of Years)?
1. Lease for a fixed period of time, could be as short as one day
2. When you know termination date from the start, you have a tenancy for years
3. A term of years states from the outset when it will terminate, no notice is needed for termination
4. A term of years greater than one year must be in writing to be enforceable (SoF)
Which tenancy is implied if the Lease is silent?
Periodic Tenancy
Created by implication
-Land is leased with no mention of duration but provision made for payment of rent at sent intervals
-An oral term of years in violation of the SoF creates an implied periodic tenancy measured by the way rent is tendered
Define Periodic tenancy
1. Lease continues for successive/continuous intervals until L or T give proper notice
2. Created expressly when L conveys to T from month to month, year to year.
How do you treat the holdover in a residential lease?
In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease an implied periodic tenancy arises measured by how rent is tendered
How do you Terminate a periodic tenancy; what notice is required?
Terminate a periodic tenancy by giving notice in writing
-At CL notice was at least equal to the length of the period unless otherwise agreed
• Month to month periodic tenancy requires one month’s notice, etc
• Exception – if tenancy is year to year or greater, only 6 months notice required
Parties may K to lengthen or shorten these CL notice provisions
Periodic tenancy MUST END at the conclusion of the natural lease period
Define Tenancy at Will.
1. No fixed period of duration
2. Unless expressly agree, payment of regular rent will cause TaW to be an implied PT
3. TaW may be terminated by either party at any time
How much notice must be given under a tenancy at will?
CL, a reasonable demand to “quit” the premises is usually required
NY, L terminating a TaW must give minimum of 30 days written notice
In NY, how is a Tenancies at Sufferance (Hold-over T) converted to a periodic tenancy?
NY – acceptance of rent creates implied month-to-month periodic tenancy, when T wrongfully remains in possession after expiration of tenancy
What 2 major duties does a tenant have?
1. duty to not commit waste
2. duty to pay rent
Again, what 3 types of waste are there--these apply to the tenant.
1. Voluntary: overt harmful acts
2. Permissive: neglect
3. Ameliorative: improvements that increase value
Define Fixtures.
1. In MPT world, fixtures go with the land/unless K otherwise
2. However if a chattel may be removed without causing any harm, it may not qualify as a fixture and thus can be removed
What type of waste could the installation of a fixture be?
Ammeliorative
What are the 3 views as to the Tenant's duty to repair if total desctruction?
1. At common law may require T to repair after an act of god destroys
2. Majority view, L is liable for such losses—T may terminate
3. NY: if place destroyed, T may quit premises with no further rent due
IF T breaches duty to pay rent, L may: (2)
1. Evict or
2. Continue and sue the tenant at sufferance
Can L rely on self help in case of failure to receive rent?
NO, May Not: change locks or remove stuff
Self Help: fetches both criminal and civil liability AND in NY, treble damages
What if T breaches by vacating prematurely and still owes on Lease? (3)
Remember: S I R
1. Surrender--L can accept it--T returns dwelling to L and L accepts (SOF applies > 1yr)
2. Ignore: the abandonment and treat T as if still there, sue for damages; only available in some states
3. Re-let: hold T liable; L must mitigate
What if T breaches by vacating prematurely and still owes on Lease in NY? (3)
Same treatment, BUT NY does not require mitigation when T abandons
2 concepts for the Landlord’s duty to deliver the premises?
i. American Rule: No duty to deliver possession; only legal right (minority)
ii. English Rule: L has duty to provide quiet enjoyment (majority)
-Under English: L breaches and is liable for damages if no quiet enjoyment is provided
if L wrongfully evicts T, what action can T bring?
an action for quiet enjoyment under the Implied covenant of quiet enjoyment
Ways in which L may breach by constructive eviction? (3)
1. Constructive Eviction: SING
a. Substantial Interference: due to L’s failure
b. Notice: T gives L notice and L fails to respond meaningfully
c. Goodbye: T vacates within a reasonable time
Is L liable for other T’s acts?
Generally NO
2 exceptions:
1. L must not permit nuisance by any tenants
2. L must control common areas
What if L fails to provide basic human standard as defined by building code or court holding
T may invoke warranty of habitability: M R3
1. Move out and terminate
2. Repair and Deduct
3. Reduce Rent
4. Remain in Possession and pay rent: bring coa for money damages
Distinguish: Assignment v. Sublease.
a. Assignment = rest of lease
b. Sublease = some reversion held by T
What consequence to L if T assigns?
LITTLE-b/c L and the assigning T stay in "privity of K", they remain secondarily liable to each other; L and assuming T are now in "privity of estate" and all covenants that run with the land, apply.
What consequence to L if T sublets?
ORIG. T remains liable--L and Sublessee are neither in privity of K nor privity of estate
What is the Landlord’s Tort Liability?
Tenant CLAPS when he hears the exceptions:
Common areas: L must maintain free of danger
Latent defects Rule: L must warn T of hidden defects that L knows or should know
Assumption of repair: If L chooses to fix, must fix w/ reasonable care
Public Use Rule: if T rents hall, term too short to be liable for anything, L has heightened duty to maintain premises—think common carrier
Short Term Lease: If L rents furnished dwelling, also has heightened duty
define a fixture.
a chattel that has been affixed to land in such a way that it stops being personalty and becomes part of the realty. statutus acheived when removal causes damage
What is a Negative easement:
Restrictive covenants which prevent action that restricts action; Must be created expressly by writing: NEVER arises automatically
What may a negative easement limit?
LASS;
1. Light
2. Air
3. Subjacent Support
4. Streamwater
What is an easement by Prescription
an analog to acquisition of land by prescription but the owner does not acquire land, acquires a right in the land.
How is an easement by Prescription gotten:
a. COAH
i. Continuous for statutory period (NY 10 yrs)
ii. Open and notorious
iii. Adverse
iv. Hostile
What is an easement by implication?
Arises when
1. the dominant and servient tenements both were one
2. an apparent and continuous use on the servient
3. the use is necessary for enjoyment of the dominant
4. court determines the parties intended continued use after division
2 types of implied easements?
1. implied from existing use
2. implied without existing use
How is an easement w/out existing use created?
1. from a subdivision plat indicating streets leading to plots, or
2. profit a prendre: the holder of the profit has a right to go on the land to extract it
Easement by necessity
arises when a landowner sells land and in doing so deprives the buyer of access to a road or utilities--the servient estate gets the access by necessity
What is an Easement Appurtenant?
1. Runs w/ land and passes with land w/out additional act
2. Always two tenements (dominant and servient)
What is an Easement In Gross?
1. “owned” by an individual
2. E.g.: utility company, billboard, right to swim.
3. May ONLY be SOLD if for commercial purposes
How do you Terminate an easement?
END CRAMP
Estoppel: if dominant tenement gives reasonable indication that will no longer exercise the easement and servient reasonably relies then dominant is estopped from exercising
Necessity: easement created by necessity, expire when need ends
Destruction: of servient land (by other than servient himself) will end the easement
Condemnation: if gov’t condemns, then easement is destroyed
Release: written release
Abandonment: if Dominant abandons expressed by action not words alone to NEVER use easement again
Merger: title to both dom and serv vest in 1
Prescription: COAH
What is a License?
a. Privilege to enter land for some delineated purpose
b. Easements granted orally are licenses—freely revocable unless licensee acts in substantial reliance
c. Revocable freely
What's a Profit?
a. Just like an easement with all its rules
b. Dominant allowed to take stuff: e.g. timber, oil, minerals
Whether a covenant runs with land depends on
Whether the land is benefited or burdened. The benfitted side has a lower standard
What element required for a covenant to run with the burdened land?
Burdened Side Must: WITHN
1 Writing: original promise was in writing
2. Intent: original parties intended promise to run
3. Touch and Concern: affects landowners or community at large
4. Horizontal and Vertical Privity: both needed for promise to run
5. Notice: buyers of land must have actual or constructive notice of existence of promise
To determine whether a covenant runs with the Benefitted Side?
WITV (lower standard)
1. Writing
2. Intent
3. Touch and Concern
4. Vertical Privity (NO HORIZONTAL)
Factors to bind successors to title through use of equitable servitude:
WITNES (no Privity req’t)
i. Writing
ii. Intent
iii.Touch and Concern
iv. Notice
3 types of NOTICE as applies to equitable servitudes and restrictive covenants:
A I R
i. Actual: literal knowledge
ii. Inquiry: the neighborhood conforms to a common plan and simple inquiry will indicate this
iii. Record: deeds indicate this (NY view is that there is NO record notice for prior transferred deeds containing the limitations)
What defense to enforcement of an equitable servitude?
Defense: Changed Conditions; mere pockets of change not good enough
Elements to Adverse Possession?
a. Continuous for statutory period (NY 10 yrs)
b. Open and notorious (typical for usual owner)
c. Adverse: literal physical
d. Hostile: no permission
i. IN NY: possessor must have good faith belief the land is his—NO SQUATTING
e. Tacking:
i. Tacking will occur btwn two adverse possessors if there is Privity between the 2; this can occur by blood, K, deed, will
f. Disabilities
i. If owner is not afflicted (infancy, insanity, imprisonment) at the onset, cannot invoke defense
What is required for a valid Land Contract?
i. In writing, signed by the parties to be bound, must describe the property; and must accompany consideration
What result if land is less than what was bargained for?
If land is less than what was bargained for, sale will nonetheless be considered complete if:
1. Buyer pays all or part of purchase price
2. Buyer makes substantial improvements after purchase or
3. Buyer takes physical possession
Risk of Loss in a land sale? NY? MPT?
Risk of Loss
1. NY remains with buyer until closing
2. MPT, once K is signed, ROL transfers to buyer
3. Remember the equitable maxim: equity regards as done that which ought to be done
What promise is implied in every land K?
1. Seller promises to provide marketable title
2. Unmarketable title:
3. False statements of material fact
What could cloud title?
a. Adverse Possession: If any part of land’s title is contested by adverse possession, then cloud over title
b. Encumbrances: if property has mortgages or servitudes, title rendered unmarketable (except those the seller will clear at closing)
c. Zoning violations: cloud title
For a Deed to pass title from buyer to seller, it MUST be:
a. signed by seller
b. need not recite consideration (no consideration nec.)
c. describe the land with sufficient specificity to identify
d. Delivery requirement
How is the Delivery requirement satisfied?
a. Succeeds with intent—physical delivery not necessary
b. May be physically delivered by mail, agent or messenger
c. Recipient’s rejection defeats delivery
d. If a valid deed is transferred along with an oral condition, the condition drops out and the deed is delivered w/out it
Any alternative method of delivery?
Delivery by escrow:
Deed may be delivered by escrow agent who will pass deed when conditions are met; this prevents Seller from failing for whatever reason
3 types of Deed and the associated covenants:
a. Quitclaim: no covenants (guarantees)
b. General Warranty Deed: warrants against all clouds
c. Statutory Special Warranty Deed: Contains 2 promises (no promises for former landowners:
General Warranty Deed contains 6 covenants:
i. Seisin: grantor promises he owns the estate
ii. Right to convey: grantor promises he can convey the estate
iii. Against encumbrances: grantor promises there are no mortgages
Future Covenants:
iv. Quiet enjoyment: promise that the buyer will not be disturbed in possession by 3rd party’s lawful claim of title
v. Warranty: grantor will defend grantee against claims against title
vi. Further assurances: grantor will do what is
What does the Statutory Special Warranty Deed promises ?
Contains 2 promises (no promises for former landowners:
i. Grantor has not conveyed the land to anyone else
ii. Land is free of encumbrances made by grantor (no one else)
NY: uses a statutory special warranty deed called a:
bargain and sale deed
2 bright line Rules if two parties have an interest in land:
2 bright line rules:
i. If B is a Bona Fide Purchaser (BFP), AND we are in a NOTICE jurisdiction, B wins regardless of whether she records before A does
ii. If B is a BFP and we are in a race-notice jurisdiction, B wins if she records properly before A does
Shelter Rule?
a. One who takes from a BFP will prevail against any entity that the BFP would have prevailed against;
b. The taker “steps into the shoes of” the BFP
Wild Deed
a. If O sells to A and A does not record and A sells to B and B records, B’s deed is a “WILD DEED” b/c there is a gap in the chain of title: from O to A was never recorded.
b. So B’s recording is a nullity
Estoppel by Deed
a. One who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest
2 elements of legal mortgage?
i. Debt
ii. Lien:
What is an Equitable mortgage and how is it created?
1. Undocumented interest in property
2. Still legally valid
3. Usually effected by physical delivery of deed to secure debt
Distinguish lien theory from title theory JD's?
IN a lien theory JD, the mortgagee only has a lien on the property, but in a title theory JD, the mortgagee retains title until the debt is satisfied in full--NY is a lien theory JD
Can a mortgagee assign their rights? what consequence?
YES--the assignee becomes the the holder in due course and takes the mortgage NOT subject to personal defense the mortgagor had against the orig. mortgagee.
What defenses will a HDC still be exposed to?
MAD FIFI4:
Material Alteration
Duress
Fraud in the factum
Incapacity
Illegality
Infancy
Insolvency
For a transferee to receive a note as a holder in due course, the following criteria must be met: (5)
a. Note must be negotiable
b. Original note must be physically delivered
c. Original note must be indorsed by the original named mortgagor
d. Holder in due course must take in good faith without any notice of illegality
e. Holder in due course must pay value for the note
If the mortgagor assigns his right, what effect on the liablity of the mortgagor?
Original mortgagor remains liable--he's basically a surety; UNLESS the subsequent mortgagor and mortgagee change their deal-then he is released
What if sale of realty fails to cover note/mortgage in foreclosure?
Mortgagee brings deficiency against debtor to satisfy itself;
If surplus, pay in priority
what is priority in foreclosure?
1. Attorney
2. Expenses
3. Accrued interest on first
4. Pay 1st note in full
5. Pay other notes
6. Pay owner
What result if jr lienholder forecloses without notice to senior?
His lien remains UNEXTINGUISHED on the realty (represent cloudon title)
what result if a jr lien holder forecloses and notifies SR lienholder?
Sr will likely join and get satisfied FIRST
What results if sr. lienholder satisfies himself and no equity is left to satisfy jr's?
they retain a deficiency judgment v. the mortgagor
when is there a warranty on a structure attached to realty?
new construction only
Distinguish between: assumption and taking subject to...
If buyer assumes, Both seller-debtor-mortgagor and buyer are personally liable
If buyer takes subject to the mortgage buyer assumes no personal liability, seller-debtor-mortgagor is personally liable for deficiency
How are proceeds from a foreclosure handled?
Proceeds used to pay of mortgages in order of priority
-Each claimant entitled to full satisfaction before subordinate lienholder
What effect of foreclosure on various interests?
Foreclosure will terminate interests junior to mortgage being foreclosed and will not affect senior interests
What party is necessary to a foreclosure action if a jr creditor wants to reserve the right to proceed in a deficiency judgment?
Debtor-mortgagor is a necessary party and must be joined
Important if creditor-mortgagee wants to proceed for deficiency judgment
What result if a necessary party to a foreclosure is not joined?
• Failure to include necessary parties results in preservation of that party’s claim
• If necessary party not joined, mortgage will remain on the land
What is the significance of recordation
Creditor must record – until properly recorded, there is no priority
Once recorded, priority is determined by, “1st in time 1st in right”
What is redemtption and how does acceleration affect it?
in redemption, debtor must pay off the missed payment(s) plus any accrued interest or costs
-Acceleration clause permits mortgagee to declare full balance due in event of default
• What if note contains acceleration clause?
• Never good, full balance plus accrued interests plus costs must be paid to redeem
what is the std of care in a subjacent support action?
Strict Liability;
BUT:If land improved by buildings and adjacent landowner’s excavation causes improved land to cave in, excavator liable only if acted negligently
NOTE: Strict liability does not attach, unless P shows that bc of D’s actions P’s improved land would have collapses even in its natural state
Under Riparian system, explain rights of those who border body of water?
Water belongs to those who own the land boarding the water course
-People known as riparians share right of REASONABLE use of the water
-One riparian liable if his use unreasonably interferes with the other’s use
Under Prior appropriation doctrine how does one acquire rights to water?
Rights determined by priority of beneficial use
• Allocation is “1st in time 1st in right”
• Person can acquire right to divert and use water from a watercourse merely by being the first to use productively
What rights to Groundwater/percolating water?
(beneath surface of earth not confined to known channel)
Surface owner entitled to make reasonable use of groundwater, MUST NOT be wasteful
Distinguish:
Natural Flow
common enemy
reasonable use
natural flow: owners cannot alter drainage patterns
common enemy: an owner can take any protective action nec.
reasonable use: balance utility v. gravity of harm
Define Trespass –
Invasion of land by tangible, physical object
Remove trespasser bring an action for ejectment
Define Private nuisance –
Substantial/unreasonable interference w/ another’s use/enjoyment of land
-Does not require tangible, physical invasion
-Odors and noise can give rise to a nuisance not a trespass
-No nuisance if problem is a result of P’s super sensitivity or specialized use
What remedy for regulatory taking or explicit takings?
Compensate owner OR
Terminate the regulation and pay owner for damages that occurred while in effect
What is an Unconstitutional exactions –
Like extortion-- those amenities that government seeks in exchange for granting permission to build
Principal test for zoning ordinance?
Proponent must show undue hardship and variance won’t work detriment to surrounding property values