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37 Cards in this Set

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What is the American rule for the delivery of possession? What is the Majority?
MINORITY--i. American Rule: Delivery of legal possession 1. With conveyance comes the duty to legally deliver possession (the paper) 2. Rationale for American Rule a. L is not to be held for the conduct of third-parties i. Artifact of legal history though legitimate b. More efficient i. Puts burden on tenant who is more motivated to deal with the problem ii. Want the person who cares to be in the position to do something c. Reliance on Market i. makes T bargain for delivery of actual possession d. C/L: Self-help i. Historical roots, we were mean and agricultural ii. tenant farmer could use self-help as it was more common back then
What is the English rule for the delivery of possession? What is the Majority?
MAJORITY--1. Rationale of English Rule a. Expectation of T i. T expects to take over an empty property ii. More functional, efficient society when expectations are met b. If English default rule, L can rewrite lease for American i. Actual possession may be negotiable c. L has prior relationship with previous T i. L had better access to the holdover T ii. L is a pro, works in the business of renting real estate iii. L is better suited to negotiate with the old T d. Fairness i. The L made the mess so the L should clean it up e. Deterrence i. Deters L from having holdover T when they have responsibility for it
What is a "Naked" assignment?
An Assignment without conditions. Naked: 1. Words of a Naked Assignment: “I, T, assign this TFY to you, T1.” 2. A conveyance, transfer, is a handing over of the deed a. Maybe T1 paid, maybe T1 did not pay
What are the 3 exceptions to Caveat Emptor/Lessee?
i. Latent defect 1. L has a duty to disclose known dangerous conditions, which are latent, or concealed & not discoverable by an ordinary inspection of the premises 2. These problems are undiscoverable so caveat emptor would not work ii. Fraudulent Concealment by L 1. T did not have to fend for himself if there was fraud by L 2. If found defect then negotiate for lower rent or move to another place a. but if L keeps distracting you and covers the hole in the floor, could get out of the lease 3. Again caveat emptor would not work iii. 3. Furnished (summer) House 1. had to be fit for use, especially if offered for a short term 2. If consumer wants a cabin at a distant location, cannot inspect it before renting it—caveat emptor fails 3. If not in good condition, T did not have to pay rent
What is Caveat Emptor? What is the Common Law rule?
III. Caveat Emptor, Buyer Beware a. C/L: T took premises “as is” with no obligation for L to ensure that they were in good condition i. If you want to rent a nice place, check it out, inspect it and make the best deal and have deal fully expressed in writing, otherwise, too bad ii. If believes in caveat emptor, believes that market forces prevail
Commercial Leases: Is there an Implied Warranty of Habitability & Duty to Repair?
a. For Residential Leases i. likely contain an implied warranty of habitability and duty to repair
Residential Leases: Is there an Implied Warranty of Habitability & Duty to Repair?
b. For Commercial Leases i. Usually not implied but open question ii. If such a warranty, called implied warranty of fitness for use 1. not habitability b/c one does not live at commercial premises iii. Whether there is a warranty turns on the status of the victims 1. if all T’s are victims, then want to apply the warranties 2. if all T’s expect a package of goods and services, then want to apply the warranty of fitness of use and repair 3. if commercial T’s bargain as equals, no reason to imply anything a. but there is a sentimental picture of commercial tenants b. that’s why an open question
How can the "Waiver of Warranty of Habitability" be executed in a residential lease?
a. For residential premises, warranty probably cannot be waived i. But split in authority ii. Is warranty a problem if want to rent and then fix up the place? 1. If warranty, cannot make this arrangement 2. Socially wholesome to not allow this? a. Larger population needs warranty—will let minor injustices to occur for greater good, easy bright-line rule 3. L can make a deal like this but risk a. deal would not be enforceable—waiver of warranty not binding on the T b. negotiation for dump means low rent for no warranty i. If T goes to court could get no rent and repair from L
Do Mortgages sever JTROS?
Mortgages Do Not Sever JTWROS--Mortgages Do Not Sever JTWROS RULE: The writing of a mortgage by one Joint Tenant does not create an implicit severance (should be the rule…)
What is the Lien theory of Mortgages?
Lien Theory: in most states, if one takes a mortgage on their house, one stays the owner—legal title stays in the one who takes out a mortgage while the bank has a lien on the property, an equitable title Lien (French for tie, bond, cxn) = an equitable interest in real property Legal Definition: a legal (recognized in a court) right or interest in another’s property, that exists until a debt is satisfied Tis a fungus on the fee simple, mistletoe, a string attached to the title that runs to the bank NO Implied Severance in Lien Theory States No technical argument that would be heard to say that a lien on a property, transfer of security, constitutes an implied severance since no transfer of the legal title of B/A
Is there an implied severance in Lien theory states?
NO Implied Severance in Lien Theory States No technical argument that would be heard to say that a lien on a property, transfer of security, constitutes an implied severance since no transfer of the legal title of B/A
What is the Title theory of Mortgages?
Title Theory: in less states, legal title is given to the lender and homeowner as the equitable title to the land Homeowner gets legal title when debt is satisfied When transferring the security interest for the loan, there was a conveyance, transfer of legal title Room to argue that there was an Implied Severance Because one conveyed title to the bank, essentially conveying to a third-party
What is a Mother Hubbard Clause?
“All relief not specifically herein granted is hereby denied.”
What are the Four Methods of Title Assurance?
I. Four Methods of Title Assurance a. Express warranties of title in the deed—warranty deeds i. [“great car”] b. Search of the Public Record i. [if you don’t believe me take it to the gov’t inspection station and have your mechanic check it] c. Title Registration—irrelevant d. Title Insurance & Record Search [private insurer says “We’ll fix the car if it breaks, but our mechanic inspects it, and we don’t fix everything]
In title insurance, what are some of the Problems and Shortcomings of warranties, of looking at the record
a. Those problems include (things not told in the record) i. Off record interests (Adverse Possession) ii. Forged Deed iii. Unacknowledged Deeds (Messersmith) iv. Failure of Delivery (unsuccessfully argued in Sweeney) v. Lack of Mental Competence of the Grantor b. In other words, the validity of documents in the public record is always subject to question
What are some Potential Problems with Covenants?
a. insolvency of the P’or b. Unavailability of the P’or c. Death of the P’or i. All these problems probably led to Title Assurance
What is Title Assurance?
a. Title insurance is the search of a private title plant that more efficiently replicates the public record, plus a contract of insurance i. Search, Examination, Guarantee
What does the title company do? For Title Insurances?
i. employees search the records, the titles in the title plant ii. examine the titles iii. these functions used to be lawyer work 1. in some places this done by title company employees or lawyers
Title plants are organized as tract indices— WHY??
c. Title plants are organized as tract indices—b/c this is the most efficient way i. Should gov’t provide a tract index? sure but private industry did it already
Does Title Assurrance insure against present risk?
g. Don’t insure against future risks, only present risks i. if like auto insurance, only about past that all knew about, insure against all past damage and also except the parts that do not work 1. must check the car out
What is the customer really paying for when buying insurance? [title assurance]
i. the tract index and the use thereof ii. what one is really paying for is the search of title iii. If you walk away from the deal, you pay most of the costs of the title insurance b/c paying for the search
What are the Two kind of policies for Title Assurrance?
i. Owner policies ii. lender policies 1. lenders have made title insurance the thing it is today 2. lenders loan only when have title insurance 3. lenders invest in debt
How do the Two kinds of investments [equity and debt] work? (how does an equity and debt investment work?)
i. equity, one owns the interest ii. debt, one is lending the money to buy the interest, renting one’s money
How does Mortgage lending work? [Works in two ways]
i. big institutions that are primary lenders ii. then Secondary investments, lenders that buy used mortgages issued by others—buy from primary lenders
What are some Criticisms on Irrevocable Licenses?
i. Puts extra interests on the land w/o certainty 1. Strong judicial efficiency concern ii. Oral licenses are easily misunderstood 1. that’s why write things down, SoF is a good idea iii. Unfairness 1. Often person who gives permission is the good guy—allows someone to do something but then is stuck with that permission
What is the english approach to implied easements? [history etc]
i. A spot of history: In the Beginning 1. Solving this problem came into existence a very long time ago when English judges started saying “that’s a mighty ole use, you got there, it must be use from ‘time immemorial’” 2. England: Use from time immemorial; a use as to which the memory of [hu]man runneth not to the contrary3. In the interest of repose and in pursuit of all the policies behind adverse possession, we won’t disturb ancient uses (ancient being those in existence on 9/3/1189) But then they got smarter and said that if there was adverse use for 20 years, they would consider it an easement. but its better for us to use the american way which is the way that is taught in the flashcards and probally on the exam.
What is the English "Lost Grant theory" of easements?
1. 20 years w/o interruption then use is perfected, via presumed lost deed, or lost grant a. Fictions of lost grant; acquiescence 2. Arrived at the lost grant theory, after 20 years pass, assume there was a lost grant a. Fiction: no grant at all 3. Part of the fiction of the lost grant was the further fiction of acquiescence to the lost grant by the owner of the servient tenement a. this works in England b/c everyone knows that it is a fiction, no one believes in this b. But when this was taken to the US, some judges began to believe in these fictions, that there was an actual lost deed and the element of acquiescence
What are Public Trust (& Customary Rights)?
Public Trust Doctrine: When the government gave (patented) the wet sands and the dry sands to the 1st private owner the government impliedly reserved a right of use for the public. • Under the public trust doctrine, the owners of wet and dry sands are still the owners of it; but using the public trust doctrine implied a right of use reserved when those lands were transferred in the 19th C. • Unanswered: Scope of Public Trust Easement.
What is the difference between Acquiescence v. Permission?
• Permission is the grand gesture of the owner – I permit you to use my path as an act of grace and favor. • Acquiescence is more humble, one gives way – Yes madam, right this way madam.
what is the English rule that: 20 Year Use Gives Rise to Presumption Use Goes Back to Time Immemorial
• Presumption scheme also stopped working well. So, then they started saying that any use that lasted w/o interruption for 20 years was presumed to go back to 1189
What is the English rule that: Lost Grant Theory (20-Year Use → Assume Deed/Grant Lost)
• That didn’t really work either, since people could prove that it really didn’t go back to 1189. • Finally, they dropped 1189 and the presumptions and said if the use went back for 20 years, the use was perfected. • After 20 years, we’ll assume there was a lost deed or a lost grant that deeded the easement, the right of use. - To make matters worse, part of the fiction of the lost grant was the further fiction of acquiescence to the lost grant by the owner of the servient tenement. • In an English Rule JX, you’d plead acquiescence, you’d plead lost grant, but you wouldn’t try to prove it. - But, some American JXs that followed the English Rule started believing the fiction and requiring it to perfect a use.
Summary of factual context that leads to Public Trust Doctrine (simplified): Wet & Dry Sand
• Who owns wet and dry sand? → Answer varies. It’s prime recreation land. • Many states sold dry and wet sands in the 18th and 19th C. to private owners. - In many states, the rich and the lucky own not merely up to the veg line, but all the way to the water. • In 20th C, states began to regret those sales and came to regret those sales. - Modern times saw the need to get people on the wet and dry sands even if they were owned by private individuals. People need a place to put their blankets. • What’s a 20th C. State to do to get people on the beach? - Can’t say the transfers in 18th and 19th C were void. - Can’t use public money to buy back a use or the fee of the wet and dry sand. Too expensive. - Get a bottle of Daly Brothers’ pewter polish and ask the people that own the wet and dry sands if we can see their pewter mug/silver bowl for a moment. Then polish their mug until an implied right of use emerges from the polishing.
For Public Trust, Who owns the water?
State Owns
For Public Trust, Who owns the land under the water?
Public Owns (This is so in every state.)
or Public Trust, Who owns Wet Sand (Land wet from waves/tides)
or Public Trust, Who owns Dry Sand?
or Public Trust, Who owns Veg Line, where 1st vegetation appears
Private Owners Own (This is so in every state.)