Property Wrongs Flashcards
“To A, and upon his death to A’s widow for life, remainder to A’s children then alive.” A is married and has two children. What is the problem with this?
Remainder to children is void under the Rule Against Perpetuities.
We won’t know A’s widow until his death, and thus A’s widow might not be born yet.
What is the Title Theory?
Under the title theory, title is in the mortagee (lender) until the mortgage has been satisfied or foreclosed. Thus, the mortgagee is entitled to possession on demand at any time.
What is the lien theory?
Under the lien theory, title is in the mortgagor (debtor) and the mortgagee holds only a security interest in the property.
What is the Natural Flow Theory?
landowner cannot alter the rate or manner of natural flow of surface waters where such actions would injures others above or below him
What is the Common enemy theory?
surface water is a common enemy and any owner can change its course to get rid of it
Does improper recording affect the rights of the original parties to an easement by express grant?
No; to create an easement by express grant, there must be a writing signed by the grantor.
Is drilling underneath someone’s land by a slanted angle coming from off their land trespass?
Yes. Owner of real property has exclusive right to use and possession of the surface, the air above the surface, and the land below the surface (including minerals and oil)
If an original mortgagee transfers possession of a nonnegotiable note w/o giving notice of the transfer to the mortgagor, is the mortgagor’s payment to the original mortgagee effective?
Yes, even though it is not made to the person entitled to enforce the instrument.
Is the easement a legal interest in the land’s chain of title?
Yes, it is.
Even if two out of the three indicators of partial performance of an oral real estate agreement are present, is there a way that the agreement will still be in violation of the Statute of Frauds?
Yes, if it looks like a normal lease. The acts of part performance must unequivocally prove the existence of the contract.
When is an express easement extinguished?
When the easement is conveyed to the owner of the servient tenement.
What are the factors in determining whether an absolute deed was actually an equitable mortgage?
(1) the existence of a debt or promise of payment by the deed’s grantor
(2) the grantee’s promise to return the land if the debt is paid
(3) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property,
(4) the degree of the grantor’s financial distress, and
(5) the parties’ prior negotiations
If there are three parties that a security interest in a property, and the second in priority forecloses on the property, what are the effects of the foreclosure on each party’s interests?
(1) First priority interests unaffected; buyer at foreclosure sale will take subject to #1 priority’s interests
(2) Second priority entitled to first proceeds of foreclosure
(3) Third priority entitled to remaining proceeds
(4) Debtor entitled to surplus of foreclosure sale
