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75 Cards in this Set
- Front
- Back
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DE: Fee Tail
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Recognized in DE. The T in tail may convey a larger estate than he has, i.e., Fee Simple. A) if he doesn't convey a Fee Simple in his life, the T in remainder takes the estate under the instrument creating it. B) person having a legal or equitable estate in Fee Tail can alien the land in Fee Simple by Deed as if it were in Fee Simple.
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DE: Can a Life Tenant obtain an Order of Partition against the holder of the non possessory estate?
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No, because partition is only available for holders of the concurrent possessory estate.
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DE: The Possibility of Reverter
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POR is not alienable, assignable or deviseable, but it IS descendible.
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DE: RAP & Trusts
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1) RAP will not render void an interest created in real or personal property held in trust, regardless if the RAP applies. 2) For real property held in trust, at the expiration of 110 years from the later of a) the date on which a parcel of real property or an interest in real property is added to or purchased by a trust; OR b) the date the Trust became irrevocable, such a parcel or interest, if still held in trust, shall be distributed in accordance with the trust instrument regarding distribution of such property upon termination of the trust as though termination occured at that time.
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DE: Trusts Created by the Exercise of a Power of Appointment
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Whether limited or general, and whether by will, deed, or other instrument, shall be deemed to have become irrevocable by the Trustor or Testator on the date on which such exercise became irrevocable. Donors, NOT donees, of limited powers of appointment, shall be deemed the trustors or testators for purposes of distributions to the trustor's or testator's distributes.
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DE: Joint Tenancy
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Created by the 4 unities of time, title, identical interest, & possession. 1) if one of 4 missing or intent to create JT is not crystal clear, it defaults to TIC 2) in DE, owner may create a JT by a deed made by grantor to himself and one or more other persons. The preferred language to create is "as joint tenants with ROS and not as TIC."
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DE: Tenancy by the Entirety
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In DE, a mortgage by one spouse encumbering the property owned by both is not wholly ineffective, but is an incohate lien that vests upon the death of the spouse who did not sign the mortgage if the property is still owned at that time by the spouse who did not sign. However, a Federal Tax Lien against one spouse attaches to that spouse's interest. A TBE can only be severed by death or divorce.
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DE: TBE & Statutory Modifications of CL Features
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1) a property owner may create a TBE by deed to him & his wife. 2) For deeds executed prior to June 29, 1998, either Tenant By the Entirety may convey their interest to the other without the other joining in the deed.
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DE: TBE & personal property
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Spouses can hold personal property as TBE (such as stock or a bank account). Personal property purchased & used by H + W is presumed to be held by the entirety.
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DE: TIC
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Same as CL: 1) each co-tenant owns an individual part but has the right to possess the whole. 2) each interest is descendible, divisable, and alienable.
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DE: Rights & Duties of Co-Tenants - Waste
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In DE, waste is defined as "a spoil of destruction in lands, houses, trees, or other corporeal hereditaments committed or permitted." A TIC or JT committing waste of the estate is liable to an action of waste brought by a co-tenant. Actions for waste 1) Writ of Waste - for waste which has already been committed, the remedy is damages & can seek this in Superior Court. 2) Writ of Estrepement - for prospective waste, the remedy is injunctive relief which enjoins a party from committing waste & can seek this in Chancery Court.
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DE: Partition
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The dividing of lands held by JTs, coparceners, or TIC, in to distinct portions. 1) A partition proceeding may not be used to divide lands owned as TBE. 2) Interests being partitioned must be concurrent - thus, partition is not available to sever a life estate from a remainder interest.
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DE: Actions to Partition - Where?
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File a Petition in the Chancery Court: 1) Partition In Kind & 2) Forced Sale w/ proceeds split among the owners pursuant to their interests.
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DE: Partition Actions by Former Spouse - Where?
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Family Court has exclusive jx over partition actions brought by a person against their former spouse re: jointly owned real property acquired during their marriage.
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DE: Partition of Personalty
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Chancery Court may Order the Partition of personal property
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DE: L-T: Tenancy for Years
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In DE, no statute restricts the duration of a lease, i.e., a lease for 200 years is valid; a lease that is renewable forever for which no further rent is due is the same as a Fee Simple.
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DE: L-T: The Periodic Tenancy
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1) Agricultural Lease: either L or T can terminate w/ 4 mos. Notice. 2) Residential Lease: whether for more or less than one year, it can be terminated by either party at the end of the term by giving not less than 60 days notice prior to the end of the term. 3) Month to Month Residential Lease: can be terminated by either party by giving minimum 60 days notice, where the 60 day period begins on the 1st day of the month following the day of actual notice.
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DE: Residential Leases - governing law
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DE L-T Code
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DE: L-T Code does not apply to
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1) Prisons, student housing, nursing homes, homes for unwed mothers, hospitals and other accommodations where residence is incidental to detention or the provision of medical, geriatric, educational, counseling, or similar services. 2) Frat Houses 3) Hotel/Motel 4) Nonrenewable lease of 120 days or less for dwellings at the Beach 5) Lease for ground upon which a dwelling is located & owned by Tenant.
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DE: L-T Code; General Provisions
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Every act which must be performed as a condition precedent to the exercise of a right or remedy under the Code imposes an obligation of good faith in its performance or enforcement. Material propmises to be performed by either party to a lease are interpreted as mutual and dependant conditions to the performance of material promises by the other party.
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DE: L-T Code; Notice
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1) Actual Knowledge or 2) The person has received Notice in a manner authorized by the Code or 3) Based on circumstances, the person has reason to know.
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DE: L-T Code, Discrimination
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L can't discriminate on the basis of race, creed, religion, marital status, color, sex, national origin, age, occupation, or because the T has children. Exception: L may discriminate in favor of persons 62+ if such leasing is done in a manner consistent with the Federal and State Fair Housing Acts.
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DE: L-T Code; Unenforceable Lease Provisions
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1) Confession of Judgment 2) Recovery of Attorney's fees 3) Any provision exempting a L from liability for damages resulting from acts or omissions of L
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DE: L-T Code; No Self-Help
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Any L who removes a T or excludes a T from the rental unit, except under a valid Court Order, is liable to the T for the greater of a) treble damages or b) 3 times the per diem rent for the period of exlcusion.
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DE: L-T Code; Chattels Siezed
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L is entitled to a priority for the payment of rent (up to one year in arrears) with respect to chattels of a T seized by any process of execution, attachment, or sequestration, i.e., forced sheriff's sale for repayment of a Security Interest in chattels, first dollar goes to L.
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DE: L-T Code; T's Duty to Pay Rent
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If T of a residential lease is removed from the premises or excluded from the premises by L except under color of valid Court Order, T is entitled to treble damages. There is no self-help remedy under DE law that allows a L to unilaterally declare a lease default and terminate lease rights for the lease of a Commercial Unit w/o a Magistrate's Order.
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DE: L-T Code, T Breaches Duty to Pay Rent & T is Not in Possession
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DE law requires that a L of a residential unit mitigate its damages following T's breach of the lease by T's wrongful abandonment thereof. A L of a Commercial Unit must mitigate its damages following T's breach as required by general principles of K law.
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DE: L-T Code; T's Obligations
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1) Pay rent 2) Notify L of extended absences if required by lease 3) Permit L reasonable access 4) Comply w/ L's rules & regulations 5) Pay a security deposit if required by the lease a) can't exceed 1 month's rent except for i) furnished units or ii) leases for a term of less than a year. b) L can also require a pet deposit not to exceed 1 month's rent.
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DE: L-T Code; Duty to Deliver Possession
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L in a residential unit has a statutory duty to put T in possession at the commencement of the term. If L fails to do this, T can terminate the lease and receive a refund of all monies paid and, if the failure to deliver possession is caused wrongfully by L, T may recover up to 1 month's rent for equivalent substitute housing.
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DE: L-T, IWOH
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DE law reads into residential leases an IWOH - L must provide a rental unit that will not endanger the health, welfare, or safety of the T and is for the purpose for which it's rented.
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DE: L-T Code; Retaliatory Eviction
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Not permitted in residential leases. A retaliatory act is presumed if L acts w/in 90 days after T has reported a code violation or pursued any legal right or remedy arising from the tenancy. L has no right to distrain personal property of a residential T. L has priority to the proceeds of the sale of the tangible personal property of T located on the demised premises sold under execution process for delinquent rent (1 yr. Max). L may distrain property of a non-residential T if that right is provided to L in the lease.
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DE: L-T Code; L's Duty to Maintain
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L must comply with all laws governing the maintenance, construction, use or appearance of the rental unit - no "as is." Must maintain the electrical, plumbing and other facilities supplied by L in good working order.
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DE: L-T Code; Agreement b/w L&T for Maintenance
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L & T can agree, by separate writing, that T is to perform specified repairs & maintenance if 1) such work is not necessary to bring a noncomplying rental unit into compliance w/ laws & regulations 2) adequate consideration, apart from the rental agreement, is recieved by T 3) such agreement is not entered into for the purpose of evading an obligation of L.
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DE: L-T Code; L's Duty to Repair
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If L fails to perform any repair for which he is responsible for w/in 30 days after notice or fails to initiate corrective measures w/in 10 days after notice, T may repair and deduct from the rent the reasonable cost thereof, not to exceed the lesser of 1) $200 or 2) 1/2 of 1 month's rent
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DE: L-T Code, L's Duty Re: Hot water, heat, water, or electricity
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If L fails to provide these, w/in 48 hours after T notifies L, T may either 1) terminate the lease or 2) keep 2/3 per diem rent during the period in which they weren't supplied - impossibility of performance is a valid defence available to L.
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DE: L-T Code; Assignments & Sublease Restrictions in Lease
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Residential rental agreement may restrict or prohibit T's right to assign in any manner. The rental agreement may restrict T's right to sublease the premises by conditioning such right on L's consent. Consent shall not be unreasonably withheld.
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DE: Lease, general nature
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"The relationship of L and T is one of K, creted when the 2 parties enter into a formal agreement known as a 'lease'". "A lease is a K by which 1 person divests himself of and another takes the possession of lands… for a term, whether long or short." 1) Material promises in a lease of a residential uint are mutual and dependent. Lease for commercial unit is governed by general K principles. 2) Rent in a residential lease is uniformly apportioned from day to day.
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DE: Commercial Leases
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Governed by general K law principles. L has duty to mitigate damages if T wrongfully abandons 2) L can cahrge T for utilities only if a) it's metered and b) the charge doesn't exceed an amount T would have been billed directly. 3) Confession of Judgement provisions are unenforceable 4) L is entitled to a priority for payment of rent (up to one year) re: the goods of T seized and sold 5) L has a Right to Distrain T's goods for nonpayment of rent if the lease provides the right to the L. This is a special procedure where L has a reasonable belief that T will leavel, L can go into an express action against the goods. 6) Default of Commercial Leases requires a Summary Proceeding in JP Court.
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DE: Easements by Prescription Restrictions
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DE law does not permit a person to acquire prescription for light and air.
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DE: Easements by Prescription - Requirements
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To establish right-of-way by prescription, the party asserting the right must show, by clear and convincing evidence, AP elements for 20 years & no substantial interruption of the continuity of possession and enjoyment.
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DE: Easement by Implication
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Can only be made in connection with a conveyance. If implied use is apparent and exepcted to survive division because of necessity. It's open, visible, permanent, and continuous and owner has actual/constructive notice.
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DE: Easement by Implication; When does it arise?
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(a) Most often based on references in the deed to a street or way – easement only arises if the street or way physically exists at the time of conveyance
i. Where lots are sold in a subdivision with reference to a recorded plat or map that also shows street leading to the lots and such streets have a physical existence at the time of the conveyance, then the buyers of the lots have an implied easement of access over such streets (b) Also arises where a single party who owns two parcels, one of which uses the other for access to a public right of way, conveys one of the parcels. Ex. owner has traditionally crossed parcel A to get to parcel B and he sells A, he may continue to cross parcel A even though no easement is expressly reserved in the deed conveying parcel A. i. Presumed that grantor does not wish to abandon the preexisting land use; ii. Grantee is put on notice by observing evidence of the preexisting use. iii. Grantor’s prior use is not really an easement b/c there’s only one owner, therefore it’s a Quasi-Easement. If the owner conveys the Quasi-Servient Tenement he may retain an actual easement appurtenant to the land he keeps (Parcel B) even if the conveyance is silent on easements and even if the easement is not absolutely necessary for the enjoyment of the land (c) Quasi-Easement requires some kind of notice, i.e., physical notice, that would reasonably be revealed by Buyer’s inspection of the property (2) The Scope of an Implied Easement flows from the nature of its use at the time of the separation of the tract. (a) Parameters of an implied easement are determined on the basis of the physical appearance of the road at the time of the conveyance. An Easement Implied from preexisting use has the size necessary for such continued use. |
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DE: Easement by Necessity
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landlocked situations
(1) Created where one person owns 2 parcels, one dominant and one servient, and then sells the dominant one, resulting in the Dominant estate becoming landlocked. (2) The easement is not actually created by the necessity; (a) the necessity is a fact offered in evidence to show an intention to establish a right of way by raising the rebuttable presumption of a grant of access to the dominant estate over the servient estate b/c it’s unlikely that anyone would purchase land to which there is no access. (3) The burden of Proof to raise the presumption rests on the party seeking to establish it. Proof must be sufficient to show Absolute Necessity (a) Convenience will not suffice (b) Necessity can be proven if the cost of constructing a road over one’s land to access a public highway would require unreasonable expense out of proportion to the value of the land. (4) Easement of Necessity cannot be terminated by mere non-use (a) It can lie dormant, be passed from one owner of the dominant estate to successors in interest, and be exercised in futuro (5) The Scope of the Easement of Necessity would normally be that required to provide reasonable access to the benefited parcel, absent other evidence of intent |
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DE: Easement; Express Grant
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(a) An owner of property may create an easement across his property by expressly granting one. The Grant may be made in a Separate Easement Agreement or declaration or it may be contained in the language of the deeds in the chain of title
(b) General Rule: extent of an easement is determined by a true construction of the language creating it. One must consider all the surrounding facts and circumstances that would throw light on the intent of the parties at the time it was granted. (c) Description – needs to describe the size and location – it is sufficient if the land can be identified with Extrinsic Evidence. |
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DE: Scope of Easement
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b. The burden created by the easement on the servient estate cannot be materially increased, not may new or additional burdens be imposed
c. An easement cannot be relocated without the consent of the owners of both the dominant and servient estates. d. An easement may be expressly limited as to use and duration. e. Where the grant of an easement is unrestricted and express, that unlimited grant carries with it the right to unlimited reasonable use. |
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DE: Termination of Easement by Necessity
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(1) The right to an easement of Necessity exists so lons as the necessity from which it arose exists. When the necessity ceases the easement ceases
(2) Laches is not an applicable defense because a right of way of necessity can lie dormant and be activated by a remote grantee. (3) Can be extinguished by abandonment but only where there is manifested a clear intent, expressed or through acts or relinquishment, to abandon. No particular conduct is required, but the conduct by the grantee must be inconsistent with one’s right to use and enjoy the easement, such as: (a) The maintenance of locked gates across the way; (b) Building a fence blocking the way; or (c) Placing a building that blocks the way (4) Can be extinguished by Adverse Possession by the owner of the servient estate (COAH). (5) Estoppel can extinguish a way of necessity. C. The License |
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DE: Termination of Easement by Release
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(1) Extinguishment by Release requires an Express Writing
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DE: Termination of Easement; Merger Doctrine
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(1) In DE an easement is extinguished when the dominant and servient estates become owned by the same person
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DE: Covenant
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. In DE, where a covenant, by its terms, provides that it binds and runs with the land, a court will enforce that covenant against successors in interest to the burdened estate even if there is no horizontal privity.
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DE: Creation of Resctrictive Covenants
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a. Creation:
(1) Restrictions which encumber land are created by a written instrument executed by the owner of the land to which the restrictions apply, and is recorded. (a) Modern practice is for the owner to execute and record a declaration which: i. Specifies the land to which the restrictions apply; and ii. Sets forth the restrictive covenants (b) A plan of restrictions can be established by multiple conveyances out of a single tract where each conveyance contains the same or similar covenants. i. If there’s an established plan of restricting property which are public, a court will restrict all property contained therein even w/out specifically providing for it in the deed |
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DE: Interpretation of Restrictive Covenants
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b. Interpretation – intent of grantor governs – general principles of K construction guide interpretation
(1) The law generally favors the free use of one’s property and restrictions on the use of land are construed against the Grantor and against others trying to enforce them (2) Common and ordinary words must be given the meaning that they are ordinarily understood to have, e.g., in Gregg v. Zetlin an owner put up a fence but there was a restriction that said no fences – held it wasn’t a fence b/c the fence didn’t enclose anything and thus it wasn’t a fence as defined by Webster’s. |
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DE: Enforceability of Restrictive Covenants
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(1) Permissible for a restrictive covenant to condition the right of a lot owner to make improvements on his lot in a planned subdivision or development on the prior approval of the developer, and association of lot owners, or a designated committee
(2) Restrictive Covenants that give an architectural review committee authority to review and approve plans are suspect b/c of their tendency to be arbitrary, capricious, and therefore unreasonable (a) Where the language used in the covenant is overly vague, imprecise, or so unclear as not to lend itself to even-handed application, then the grant of authority is normally not enforceable. (b) Where the judgment of those with authority to pass on plans is controlled by fixed standards and made to hinge on whether submitted plans meet precise requirements, the application of the covenants will be upheld b/c the potential for arbitrary action is slight. (3) Architectural approval – okay as long as there are objective standards subject to review by court and not subject to vague standards not uniformly applied. (4) Outlook not okay (5) Suitability of proposed material not objective (6) Highly specific direction will be enforced by a court. |
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DE: Termination of Restrictive Covenants
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(1) Changed circumstances – change must be dramatic
(2) Whether Right to enforce is lost by Abandonment, Waiver, or Acquiescence (a) Abandonment – when all beneficiaries have relinquished their rights to enforce a particular covenant or general plan of covenants. (b) Waiver – usually involves a failure to object to other violations of the same or similar servitudes such that it would be unfair to allow the claimant to enforce the servitude (c) “A property owner is not precluded from enforcing a deed restriction which materially affects her merely because she previously failed to complain of a violation which did not materially affect her in the enjoyment of her property.” Therefore, a property owner is not precluded from seeking relief against the owner of nearby property merely because they failed to prosecute claims against other violators. While a rule of evenhandedness may be of some value when a homeowners’ association is bringing an action, such a rule has little utility when the plaintiffs are individual homeowners. The Court will balance: i. whether the Π is a homeowner, and not a civic association; ii. whether the violations are widespread; and iii. whether the restriction is being enforced selectively for pre-textual reasons that would be unlawful (d) this would lead the court to believe that the unfair, arbitrary, or unevenhanded action are not implicated and would likely uphold the restriction (3) Mere lapse of time is NOT a sufficient bases to justify the conclusion that a restriction is no longer enforceable (4) An ordinance rezoning property for business purposes or commercial use does not nullify, abrogate or impair restriction limiting the property to residential use. |
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DE: Adverse Possession
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1. Title by Adverse Possession results from the operation of the statute of limitations for trespass to real property.
2. The SOL for Adverse Possession is 20 years. 3. in DE, a person with a disability can file an action for trespass within 10 years after the disability is removed |
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DE: Equitable Conversion & Risk of Loss
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a. Under the Doctrine of Equitable Conversion, the execution of a K for the sale of real property effectively transfers the seller’s equitable interest in the land to the purchaser, and thereafter the seller merely retains a legal interest in the proceeds of the sales transaction. This doctrine doesn’t apply where the buyer’s obligations to perform are subject to a substantial contingency (such as obtaining financing).
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DE: Marketable Title; Undisclosed Restricitons & Title by AP
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(3) DE – an undisclosed restriction which lessens the value of land for general purposes is regarded as a defect in the vendor’s title giving the purchaser the right to reject title.
(4) Title acquired by Adverse Possession is marketable if the evidence that establishes such claim is such that if the question were before a jury, it would be the duty of the judge to giver a clear direction in favor of the party’s claim of title by adverse possession. |
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DE: Quitclaim Deed
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(1) Passes to Grantee all right, title and interest of the grantor, if any, to the property described in the deed
(2) Contains no Implied Warranties of Title (3) Customary Language of grant – “Remise, Release, and Forever Quitclaim.” – NOT “Grant and Convey” (4) Look at the Intent of the parties – if Grantor intends a Quitclaim but uses language for special warranty deed – have to look at what Grantor intended to convey. |
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DE: General Warranty Deed
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(3) DE – Contains Warranties of Title against all persons whomsoever
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DE: Special Warranty Deed
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(2) Also known as Limited Warranty Deed.
(3) Contains warranties of Title against the Grantor and his heirs and all persons claiming from him or them. (a) DOES NOT Warranty against a claim of paramount title by someone who didn’t obtain title by, through, or under Grantor, i.e., where deed includes land that Grantor had NEVER owned – only for that property that Grantor OWNED at one time. (b) Grantee’s Notice does not defeat an action for breach of Covenant of Warranty of Title where Grantor’s deed described land he had previously conveyed to someone else in a Recorded Deed. Even if Grantee had actual Notice it doesn’t matter. (4) Passes the Fee Simple title of the whole estate or interest which Grantor could lawfully convey in the property described together with the “Tenements, hereditaments, franchises, and appurtenances thereunto belonging; and the reversions and remainders, rents, issues and profits thereof.” (a) The Deed doesn’t expressly state these appurtenant rights – if deed is silent they are deemed to be conveyed with the property, thus, an appurtenant easement passes with the property by operation of law. (5) Created by language: “Grant and Convey” and no longer need common law language “and his heirs.” |
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DE: Criteria for Enforceability of Deed
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a. In order for a deed to be valid and enforceable at law, it must:
(1) Be in Writing (SOF); (2) Describe with specificity the property conveyed; (a) Only needs to be described with that level of detail that would enable another to be able to Identify the property (usually meets and bounds) however a deed is adequate if describes property as Lot 14 on a plat map – has to be in the body of the Deed – the Tax Number on the top of the Deed (3) Specify the names of the grantor(s) and grantee(s); (a) Deed will fail if grantee is a Corporation that hasn’t been properly formed. Could argue it’s a De Facto Corp. Need an Identified and ascertainable grantee. (4) Be Signed (a) A mark could be sufficient so long as it evidences the intention of the party to execute the document as their deed. (5) Be Acknowledged; (a) Loose standard – formal declaration made in the presence of a notary that the signature is that of the person who signed it. i. Deed will not fail b/c of Defective acknowledgement based on the lapse of Notary license or not signed in her jx, or not signed in her presence. (6) Be Delivered b. Note: Deed no longer needs to be by seal to be valid |
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DE: Construction of Deeds
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a. A deed will be construed by reference to the intent of the Grantor
(1) It is construed as conveying the entire estate or interest which Grantor owns unless a limitation is clearly expressed (2) Title gained by adverse possession vests in the possessor by operation of law – don’t need to obtain a court order. (3) Land acquired by adverse possession (Adverse lands) adjoining land acquired by Deed (record lands) pass by deed describing only the record lands where grantor intends to convey the adverse lands as well as can be established. |
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DE: Recording of Deeds
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1. A Deed doesn’t have to be recorded to be enforceable b/n the parties thereto.
2. A Deed has priority from the time it’s recorded in the proper office w/out respect to the time it was Signed, sealed and delivered. 3. Deed must contain address of Grantee, tax parcel number or property conveyed and Name and Address of Preparer to be in Recordable form. |
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DE: Mortgages
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A. Lien Theory State
1. Title to the property remains int her mortgagor and passes to his successors in interest subject to the lien. |
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DE: Criteria for Enforceability of Mortgages
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1. In order for a mortgage to be a valid lien enforceable at law, it must:
a. Be in Writing; (1) Satisfies the SOF b. Describe with specificity the property subject to its lien; c. Be Signed; d. Be Sealed; (1) Not enforceable at law (Superior Court) if not Sealed. It becomes an Equitable Mortgage (Chancery). This is more cumbersome b/c Superior Court has a streamlined foreclosure process. (2) A Pre-printed Seal next to the signature line is sufficient, however, absence of the seal itself is a fatal defect despite the existence of language stating “This is signed under Seal.” e. Be Acknowledged; f. Be Delivered; g. Be Recorded; (1) Not valid until recorded even b\n the parties thereto. Only becomes a lien against the property when recorded (2) An Equitable Mortgage (w/out seal) recorded before a Legal Mortgage has priority over the Legal Mortgage. (3) DE has Pure Race statute – 1st in Time 1st in Right. Note that a 3rd party’s actual or constructive notice of an equitable lien is sufficient to render it enforceable in relation to that 3rd party. |
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DE: Purchase Money Mortgages
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1. 2 Requirements
a. A conveys property to B for $100,000. B executes a mortgage to A for $80,000 and B gives A $20,000. (1) Similar to, but different from, a Purchase Money Security Interest (PMSI) under the UCC. (2) Money provided by a 3rd party used to purchase real property is not a PMM. b. Must be recorded w/in 5 days of recording the Deed (Note: not 5 days of signing the Deed) 2. If these 2 are met it becomes a superpriority. 3. PMM is superior to the lien of any judgment against the mortgagor 4. PMM may be subordinated to subsequent mortgages |
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DE: Material Modification of 1st Mortgage after Recording of a 2nd Mortgage
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D. Material Modification of a 1st Mortgage after the recording of a 2nd mortgage automatically subordinates the 1st mortgage
1. e.g., mortgagor is having financial difficulty and 1st mortgagee agrees to increase the amount of the 1st mortgage from 2 million to 5 million. This would prejudice the 2nd mortgagee 2. Materiality - Look for any modification that prejudices (not benefits) the 2nd mortgagee |
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DE: Mortgages Securing Future Advances
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1. General Rule: a mortgage secures only the debt or obligation which is existing at the time the mortgage is executed, delivered and recorded.
2. If you have a mortgage which indicates on its face that it secures a debt for which there may be future advances AND mortgage specifies the maximum principal amount of the debt to be secured, it becomes a Mortgage with a future advances clause and all future advances have a lien status that goes back to the original day the mortgage is recorded – it makes new advance superior to subsequent mortgages recorded after the initial mortgage. |
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DE: Assignability of a Mortgage
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1. assignment must be attested by one credible witness to be effective
2. assignment need not be under seal. |
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DE: Release of a Mortgage Lien
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1. release must be signed, sealed, acknowledged and recorded
2. release can discharge a portion of the mortgaged lands without releasing the balance of the lands from the lien of the mortgage |
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DE: Satisfaction of a Mortgage
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1. When the debt or obligation which is secured by the mortgage is satisfied or performed, the mortgage MUST satisfy the mortgage of record
2. the entry of the satisfaction extinguishes the mortgage and the effect is the same as if the mortgage had not been made. |
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DE: Foreclosure
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1. Necessary Parties
a. Mortgagor b. Record Owners acquiring title to the mortgaged property c. Persons having an equitable or legal interest d. United States if a federal tax lien attaches to the mortgaged property e. The following persons need not be joined as Δ’s but must be given Written Notice of the foreclosure action (1) Lienholders; (2) Tenants seized on an Estate for Years or at will. 2. Foreclosure terminates a subsequently recorded easement J. A Lease for a term of 10 years or more can be mortgaged |
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DE: Mechanic's Lien
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A. Statutorily created lien unknown at common law – statute is strictly construed.
B. Action to Enforce Lien 1. a person who supplies labor and/or materials to real estate and who is not paid can get a lien against the property – Prothonotary’s office notes the filing of the lien which creates an inchoate lien giving notice to 3rd parties until judgment. 2. Status of the Lien dates back to the date the work was first performed or material first supplied – important for priority 3. Right to the Lien rests upon the theory that the land has been increased in value by the labor or materials bestowed upon the building or structure thereon 4. Lien available to the following parties, among others: a. General Contractor b. Subcontractor c. Architect d. Surveyor 5. Time for Filing a. General Contractor must file w/in 180 days after completion of the structure. A complaint will be timely if filed w/in 180 days after any of 9 listed events including: (1) Date when the SOL begins to run re the work to which the claim relates; (2) Date when payment of 90% if the K price has been received by Contractor; (3) Date when Contractor submits his final invoice; and (4) Date when Certificate of Occupancy is issued if applicable; b. Subcontractors and all other persons who are entitled to such a lien must file w/in 120 days from the completion of the labor performed or from the last delivery of materials furnished by them. The complaint will be timely if filed w/in 120 days after either: (1) The date final payment is due to such person; or (2) The date final payment is made to the contractor (a) who has a K with the owner and (b) with whom the subcontractor has contracted 6. Complaint must specify: a. Name of owner of Real Estate b. Date when providing of labor or materials commenced c. Date when providing of labor or materials was finished d. Description of real estate 7. Waiver is unenforceable 8. Lien of a 1st Mortgage that secures a loan for which at least 50% of the loan proceeds are used for the payment of labor or materials or both for the structure that is part of the mortgaged property is superior to a mechanic’s lien even if the mortgage is recorded after the work commenced or materials were supplied. |
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DE: Guest Statute
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A. DE Guest Statute
1. “No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such perons while on the premises unless such accident was intentionalon the part of the owner or occupier or was caused by the willful or wanton disregard of the rights of others.” 2. Guest is one who is present by invitation, express or implied, w/out economical or biz benefit to the host 3. Legislative intent was to protect landowner from suits by guests based on simple acts of negligence – statute is in derogation of the common law ans is strictly construed 4. Statute does not bar recovery by a trespassing child claiming attractive nuisance. a. A party who holds easement rights over farm land who uses them for commercial purposes will not be protected by this statute even though the injury occurs on farm land. |
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DE: Public Recreation on Private Lands
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1. an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity to persons entering for recreational purposes as long as the owner invites or permits such persons to use the land w/out charge
a. The protection applies whether the person enters upon the land with to without consent and also protects owners of property who post no trespassing signs. |
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DE: Lis Pendens
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A. Arises where party has K-ual right to purchase and seller doesn’t like it.
B. This buyer wants to get a lis pendens filed in Chancery saying you have a K, and then file the lis pendens in recorder of deeds property b/c it puts everyone dealing with the property is on notice and they would take the property subject to any rights I have. Protects Claimants interest in the property and avoids conflict. b/f this statute simply filing action in Chancery was sufficient, but people usually don’t search Chancery docket for title searches |
