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115 Cards in this Set
- Front
- Back
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What should you look for in a TITLE SEARCH?
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1. Conveyances
(including unbroken chain of title) 2. Encumbrances (including outstanding judgments and tax liens) |
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Do all judgment liens attach to all the debtor's land in the counties where the liens are filed?
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Yes.
(This greatly diminishes the use of a tract index.) |
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Do mechanics' liens "attach" to specific land of the debtor?
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Yes
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What does "attach" mean?
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....
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What is a judgment lien?
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...
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What is the doctrine of idem sonans?
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It is the the identity of sounds and the court has held it applies mostly to identification and NOT to extending constructive notice.
Recordds are matters of sight, not sound, too much burden on title searchers. |
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Who holds the burden of correctness?
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The judgment creditor.
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What are the three types of recording acts?
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1. Race
2. Race-Notice 3.Notice |
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What must a second purchaser do in order to be protected by a recording act against the interet of the first purchaser in a race recording act jurisdiction?
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The second purchaser must record first.
(Win race to courthouse.) Must have notice (of the first grantee's interest) or good faith is irrelevant. |
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What must a second purchaser do in order to be protected by a recording act against the interet of the first purchaser in a race-notice recording act jurisdiction?
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Second purchaser must
1. Record first 2. Be without actual or constructive notice of first grantee's interest |
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What must a second purchaser do in order to be protected by a recording act against the interet of the first purchaser in a notice recording act jurisdiction?
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Second purchaser must be without actual or constructive notice of the first grantee's interest; time of second purchaser's recording is irrelevant.
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In what two sense is the word "township" used in the government survey system?
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1. A township is the square parcel consisting of 36 one-square mile sections.
2. A township is a six-mile measurement on the north-south axis from the principal base and meridian. |
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A gives valid deed to B
A gives a second deed to C, who pays consideration and who is unaware of the first deed B records C records Who is entitled to the land in a race jurisdiction? |
B
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A gives valid deed to B
A gives a second deed to C, who pays consideration and who is unaware of the first deed B records C records Who is entitled to the land in a race-notice jurisdiction? |
B
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A gives valid deed to B
A gives a second deed to C, who pays consideration and who is unaware of the first deed B records C records Who is entitled to the land in a notice jurisdiction? |
C
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is unaware of the first deed C records B records Who is entitled to the land in a race jurisdiction? |
C
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is unaware of the first deed C records B records Who is entitled to the land in a race-notice jurisdiction? |
C
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is unaware of the first deed C records B records Who is entitled to the land in a notice jurisdiction? |
C
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A gives valid deed to B
A gives second deed for the same land to C, who is a donee who is unaware of the first deed B records C records Who is entitled ot the land in a race jurisdiction? |
B
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A gives valid deed to B
A gives second deed for the same land to C, who is a donee who is unaware of the first deed B records C records Who is entitled ot the land in a race-notice jurisdiction? |
B
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A gives valid deed to B
A gives second deed for the same land to C, who is a donee who is unaware of the first deed B records C records Who is entitled ot the land in a race-notice jurisdiction? |
B
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is aware of the first deed B records C records Who is entitled to the land in a race jurisdiction? |
B
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is aware of the first deed B records C records Who is entitled to the land in a race jurisdiction? |
B
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is aware of the first deed B records C records Who is entitled to the land in a race-notice jurisdiction? |
B
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A gives a valid deed to B
A gives a second deed for the same land to C, who pays consideration and who is aware of the first deed B records C records Who is entitled to the land in a notice jurisdiction? |
B
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What is chain of title?
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"The recorded sequence of transactions by which title has passed from a sovereign to the present claimant."
"The period of time for which records must be searched and the documents that mut be examined within that time period." |
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A standard title search "againt each owner" should:
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go from the date of exeuction of the deed granting title to the owenr ot the date of recordation of the first deed by such owner
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When a purchaser under an installment land sale contract has no notice of a prior interest when contract payments are first made, but obtains notice before payments are completed, is the purchaser precluded from being a purchaser without notice, because the purchaser had notice at the time title passed?
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Yes.
(Equitable conversion doctrine not timely raised.) |
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A deed was filled in (except for the grantee's name) and signed by the grantor in May, given to the intended grantee (with authority for the recipient to fill in her own name in June, completed by the grantee filling in her own name in July, and recorded in August. Is deed effective as a conveyance in May, June, July or August?
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July
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A deed was filled in (except for the grantee's name) and signed by the grantor in May, given to the intended grantee (with authority for the recipient to fill in her own name in June, completed by the grantee filling in her own name in July, and recorded in August. Is the deed effective as notice to a subsequent purchaser in May, June, July, or August?
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August
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What is a wild deed?
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A recorded instrument that has no apparent connection with any of the parites mentioned in documents in the chain of title for a particular parcel of land.
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Why is a wild deed not considered a problem in a recording system with a tract index?
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Because the wild deed does not require links to particular parties in a tract index system, it will always show up in the index to a particular tract of land.
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In jurisdictions that rely on grantor-grantee indexes for their recording systmes, why is a recorded wild deed treated as if it were not recorded?
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because it cannot be linked to any other documents in the chain of title for a particular parcel of land.
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Why would a purchaser of a lot in a new sbudivision devlopment be treated as being on nonotice of a "residential only" use restriction, when the restiriction does not appear in the purchaser's deed and appears in only some of the deeds to the other lots?
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The purchaser should notice the uniformity created by universal observance of the restriction, and thus be on inquiry notice that such a restriction might exist and should be investigated.
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Which of the following classes are generallynot protected by the varous state recording systems?
Creditor without judgment Creditor with a lien of judgment Subsequent Mortgagee Creditor under a judgment affecting title Donee Devisee |
Creditors without a lien or judgment
Donees Devisees |
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If , in the course of searching title for a particular parcel of land, you find in one of the documents in the chain of title a reference to another document that seems relevant, but is not in the chain of title, what constructive notice has been imparted to you?
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You have inquiry notice.
You know about the document and you are under a duty to investigate the existence and contents of the document. You are on constructive notice of what a reasoanable investigation would reveal about the contents of the document. |
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May the root of title change with the passage of time?
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Yes.
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With a root of title, does the protected party need to be a purchaser?
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No.
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Can older claims be preserved by way of root of title?
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Yes.
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Root of title is:
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.....
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What are the points we discussed in regards to TITLE REGISTRATION?
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1. Title adjudicated to be in plaintiff.
2. Adjudicated title is registered on a certificate of title. 3. A new certificate is issued when title is transferred. 4. Insurance indemnity fund covers errors of registrar |
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What is ALTA?
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The American Land Title Association
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What are some exceptions in lower grad title insurance owner's policies?
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Encroachments or questions of location, boundary and area, which an accurate survey may disclose
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Are title insurance companies liable for what a survey might reveal?
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No.
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True or False
One who claims the benefits of a marketable title act is required to be a bona fide purchaser, or at least a purchaser. |
False.
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In a jurisdiction with a 30-year marketable title act, if a tenant has occupied under a long-term lease that began in 1970 under a landlord who received title to the property in 1969, and assuming the tenant is not presently in occupancy but may occupy in the future, what should the tenatn do to prevent the lease from being extinguished by operation of the marketable title act?
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File a notice of claim as prescribed by the particular act in that state.
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If a recorded interest pre-date the root of title under a marketable title act, what happens to that interest?
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The interest is extinguished, if no timely notice of claim was filed.
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If I buy a house and lot for $100,000, and obtain a policy of title insurance to cover this transaction, on what will the amount of the policy coverage (and therefore the premium) be based?
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The amount of the purchase price.
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In the ordinary residential real property purchase transaction covered by title insurance, who usually pays the premium?
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The seller.
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In the ordinary residential real property purchase transaction covered by title insurance, which party is usually the insured party?
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The buyer and/or the lender.
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In the ordinary residential real property purchase transaction covered by title insurance, when is the premium usually paid?
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At the closing.
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If the buyer in a residential property purchase trasaction is the insured under the title insurance covering that transaction, how long does the coverage from that policy last?
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As long as the buyer has an interest in the property covered by the insurance.
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What does the typical owner's policy of title insurance insure against?
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Against recorded encumbrances that were overlooked and therfore not excepted from the coverage of the policy of title insurance.
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What are the standard exceptions in a policy of title insurance?
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Rights of adverse possessors, unrecorded easements, boundary and other survey discrepancies and mechanics' lien rights.
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What are the standard exclusions in a policy of title insurance?
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Loss from land use and other police power regulations, loss from exercise of eminent domain, and loss from encumbrances that were known the claimant or resulted in no loss or attached after the date of the policy.
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Even though most consumer expect that competent title searching is part of wha thte title insurance policy premium pays for, courts in some states disagree and do not hold the title insurance companies to a duty to conduct a competent title search. What is the main justification for this position?
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The insurance policy is treated as a contract, and if the contract does not explicitly require a competent title search, then failure to perform one is not a breach of the contract.
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If I purchase real estate for $100,000, and my interest is insured by a policy of title insurance also in the face amount of $100,000, then I learn that a recorded easement was overlooded by the title searchers and it reduces the value of the property by $20,000, how much should I receive in a claim against the policy?
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Either $20,000 or a lesser amount based on the value of the easement as a percentage of the value of the entire property. Both approaches are sued. check the provisions of the policy.
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What is a private nuisance?
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Unreasonable use of defendant's land that causes a non-trespassory, substantial interference with use and enjoyment of plaintiff's land.
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What is a trepass?
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The physical invasion of another's land.
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What is a public nuisance?
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The ureasonable interference witha right common to the general public.
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What are the requirements of an attractive nuisance?
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1. There is a condition on the land dangerous to children.
2. The condition is atractive to children. 3. The condition injures a trespassing child. 4. The landowner has not exercised reasonable care to provide protection against that occurrence. |
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A private nuisance as a matter of law (per se) is:
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Forbidden by law
Contrary to public standards of conduct Motivated by malice |
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A nuisance in fact (per accidens) is:
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Unreasonable conduct in use of defendant's land
Substantial harm to plaintiff's use and enjoyment of land (non-trespassory) Defendant's conduct is proximate cause of plaintiff's complaint |
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What types of remedy or damages are available?
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Permanent
Temporary Exemplary (punitive) Inunction (abatement): Equitable Rememdey |
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When are permanent damages awarded?
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When nuisance is permanet and all the damage is done at once.
Ex: a lawful structure, such as a cement plant. |
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When are temporary damages awarded?
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When the nuisance is ongoing or repetitive; recovery only for past damage; future damages may be recovered in subsequent legal actions.
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What are the possible defenses against damages?
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Acquiescence, consent, license
Prescription Necessity Legislative authority Priority: "coming to the nuisance" |
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What is an injunction?
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A judicial abatement of the nuisance.
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When is an injunction awarded?
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Only for continuing or recurring nuisances
Only for substantial injury Must show either irreparable harm if nuisance continues OR the remedy at law is inadequate (because damage will likely continue into the future). |
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How do courts "balance the equities" in private nuisance cases?
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Applies only to the remedy of injunction
The harm of the injunction to the defendant AND TO THE PUBLIC, if the injunction is granted vs. The harm to the plaintiff, if the injunction is denied A nuisance may be permitted to continue if justified by the "stern rule of necessity." |
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Define lateral support
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support from the surrounding land
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Define subjacent support
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support from land underneath
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Is there a common law righ tot support of land in its "natural" condition (without structures)?
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Yes.
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What are the three land use controls?
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Competing private rights
Rights created by private agreement Governmental land use regulations |
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How do competing private rights control?
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They are resolved in courts applying the principles of private nuisance.
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What rights can be created by private agreement?
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Servitudes
Easements Covenants Equitable servitudes |
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What is a servitude?
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An interest held by one party in the land of another.
Interest is not possessory or ownership interest, but interest affecting use of land. Servitudes are encumbrances on title and marketability. |
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What are the types of easements?
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Express easement
Implied easement |
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What is an example of an easement?
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A right of way
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What is an example of a license?
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An admission ticket
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What is an example of profit a prendre?
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Right to harvest produce or timber from someone else's land.
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What did we discuss about express easements?
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Written
Usually part of a deed, with a grantor and a grantee can be a separate document Creates or conveys an interset in land; formalities of real property conveyancing required |
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??What are the two types of covenants?
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Real convenants
Equitable servitudes |
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What is a real covenant?
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Covenants enforceable at law
Ex: Private restrictive covenants pertaining to a subdivision |
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What is an equitable servitude?
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A covenant enforceable only in equity, that is, only by injunction
Ex: A purported real covenant that is technically deficient, such as in Tulk v. Moxhay |
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What are the types of easements?
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Affirmative easement
Negative easement Appurtenant easement Easement in gross |
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What is an affirmative easement?
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the right to do something on someone else's land
Ex: right of way |
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What is a negative easement?
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the right to prevent a landowner from doing something on the land
Ex: historic preservation |
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What is an appurtenant easement?
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the use, privilege or restriction on one parcel of land benefits another parcel of land
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What is a dominant tenement?
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with repsect to an appurtenant easement, the parcel of land benefitted by the easement
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What is a servient tenement?
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the parcel of land "burdened" by the easement.
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What is an easement in gross?
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The use privilege or restriction on one parcel of land benefits a party, but not a parcel of land
Ex: One person holds a right to swim on someone else's private lake. |
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What are the types of implied easements?
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1. Easement by implication
2. Easement of necessity 3. Prescriptive easement |
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Do all states recognize implied easements?
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No.
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What are the requirements for easement by implication?
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1.Quasi-easement
2. Severance 3. Strict or reasonable necessity 4. Intent 5. Apparent |
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What are the requirements for easement of necessity?
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1.Quasi-easement or use that arises at time of severance
2. Severance 3. Strict necessity 4. Intent 5. Apparent |
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What is a prescripitve easement?
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Use (not possession) of another's land that is:
1. Adverse to the landowner's interest 2. Apparent 3. Exclusive (except for public easement) 4. Continuous and uninterrupted 5. For the required time |
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What were the types of negative easements recognized by 19th Century English Easement Law?
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1. Blocking your windows
2. Interfering with air flowing to your land in a defined channel 3. Removing the lateral or subjacent support of your builidng 4. Interfering with the flow of water in an artificial stream |
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Did 19th Century English Easement Law recognize many types of affirmative easements?
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Yes.
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When is there a reservation of interest in a conveyance?
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1. The entire interet is conveyed to a grantee, subject to
2. A newly created interest in the grantor Ex: A in fee simple to B, but reserving a right of way in A over the land conveyed to B |
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What is the exception to a reservation of interest in a conveyance?
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1. The entire interest is conveyed to a grantee, subject to
2. An interest that was previously created and conveyed to another Ex: A in fee simple to B, except for a right of way that was previously conveyed to C |
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What is an easement in gross?
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holder of benefit does not own land to be benefitted by the easement
Ex: A grants to B the right to swim in A's lake |
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Is an easement in gross assignable?
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If it is made so by the parties.
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Are easements in gross divisible?
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Yes, but only if exercised by the parties acting in concert (as a single entity)
This avoids overuse of the easement. |
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Can a license be written or oral?
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Yes.
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Are licenses revocable?
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Yes, unless the license is coupled with an interest
ex: almost any profit OR License becomes irrevocable through estoppel (change of position in reasonable reliance on continuance of license) |
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What are the ways to leave your easement?
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1. Abandonment
2. Change of circumstances 3. Misuse or abuse of the easement 4. Merger of dominant and servient tenements 5. Prescription 6. Release by owner of dominant tenement |
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With oral permission from the owner of the parcel B, the owner of parcil A uses a roadway across parcel B for access to A from a public roadway. Is this an express easement, an implied easement, a license, or a license rendered irrevocable by estoppel?
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License
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With a formal deed from the owner of B to the owner of A, the owner of parcel A uses a roadway across parcel B for access to A from a public roadway. Is this an express easement, an implied easement, a license, or a license rendered irrevocable by estoppel?
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Express easement
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With oral permission from the owner of parcel B, the owner of parcel A uses a roadway across parcel B for access to A from a public roadway; then, with permission of the owner of B, the owner of A paves the roadway. Is this an express easement, an implied easement, a license, or a license rendered irrevocable by estoppel?
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License rendered irrevocable by estoppel
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An owner of land uses a private roadway to gain access from a public roadway to a remote corner of the land, where the owner builds and occupies a residence. Later the owner sells a portion of the land adjacent to the public roadway, retaining the portion iwth the residence. The conveyancing instruments are silent about the private roadway. The original owner continues to use the private roadway across the portion of the land that was sold. Is this an express easement, an implied easement, a license, or a license rendered irrevocable by estoppel?
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Implied easement
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A to B, subject to a newly created right of way for A to cross the land granted to b.
Easement by reservation or easement by exception? |
Reservation
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A to B, except for a right of way to cross the land granted to B, which right of way was perviously granted to C, A's predecessor in interest. Reservation or exeption?
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Exception
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In the context of implied easements, what is a quasi-easement?
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The use of one part of th eland to the benefit of another part of th eland, while still under a signle owner, and which use continues after the two parts have been separated by conveyance.
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In the context of implied easements, what does severance mean?
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When one part of the land is used for the benefit of another part of the land held by a single owner, severance occurs when those two portions are separated by conveyance.
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