MBE RP Flashcards
(143 cards)
1
Q
Lifte tenants’ obligations to pay interest on mortgage and property tax
A
Life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage to the extent he receives a financial benefit from the property. When the life tenant occupies the property, his financial benefit is measured by the fair market rental value of the property.
2
Q
A tenancy for years - definition, termination, notice?
A
A tenancy for years is an estate measured by a fixed and ascertainable amount of time. Termination occurs automatically upon the expiration of the term; no notice is required.
3
Q
Assignment. Definition. Assignee liability to the landlord
A
An assignment is a complete transfer of the tenant’s remaining lease term. Assignee tenants are in privity of estate with the landlord, and thus they are liable to the landlord for the rent and any other covenants in the lease that run with the lease.
4
Q
Absent contrary language, an ——is part of a contract to sell real property.
A
Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a contract to sell real property.
5
Q
Doctrine of merger and breach of contract action regarding the marketable title
A
under the doctrine of merger, obligations contained in the contract of sale, including the seller’s duty to deliver marketable title, are merged into the deed and cannot thereafter be enforced through a breach of contract action.
6
Q
Doctrine of equitable conversion + Seller’s casualty insurance
A
Under the doctrine of equitable conversion, equitable title to real property passes to the buyer upon entering the contract, even though the seller retains legal title. Most jurisdictions place the risk of loss between the contract and the closing on the buyer. However, if the seller has casualty insurance on the property, the seller must give the buyer credit in the amount of insurance proceeds against the purchase price.
7
Q
Does a shelter rule provide protection to a BFP son who had inquiry notice of the land?
A
A race-notice statute requires a subsequent purchaser to take the interest without notice of a prior conflicting interest and be the first to record. Although grantees who acquire title to property by gift, intestacy, or devise are not protected by the recording act against prior claims, grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected. Here, the woman is protected by the race-notice act because she purchased the property without notice of its prior transfer to the charity and recorded her deed before the charity recorded its deed. As a protected purchaser of the property, she shelters her son, who as a donee of the property, would otherwise not be protected by the recording act.
8
Q
Ademption
A
Under the doctrine of ademption, a devise fails (or is “adeemed”) because the testator no longer owns the property upon death.
9
Q
Estoppel by deed
A
Under the “estoppel by deed” doctrine, a grantor who conveys a real property interest by warranty deed before actually owning it is estopped from later denying the effectiveness of his deed.
ex) A son before mother’s death granted the land - later claiming after mother’s death that he wants the land
10
Q
Enforceability of a promissory restraint on alientation
A
A promissory restraint on alienation, such as a right of first refusal, may be enforceable by an injunction if it is reasonable.
11
Q
If a deed is silent or ambiguous as to the transferee-buyer’s liability, then the transferee-buyer is considered to have taken the property —— the mortgage obligation
A
SUBJECT TO
12
Q
Mortgage –> payment but defaulted –> notice of foreclosure –> Mortgagor offered to pay the rem BEFORE the foreclosure. What right?
A
Doctrine of equity of redemption. After default on a mortgage obligation, but before a foreclosure sale, the mortgagor may regain clear title to the property under the doctrine of equity of redemption. The mortgagor must pay the amount of the loan obligation currently owed, which, if there is an acceleration clause, can be the full amount of the unpaid loan obligation, plus any accrued interest.
13
Q
Without reserving the right to foreclose
A
Without reserving the right to foreclose
14
Q
Deed in lieu of foreclosure transaction –> does it eliminate junior mortgage interests?
A
No.
15
Q
License + Transfer of the land?
In which instances the license not revoked?
A
Generally, a license is revoked upon the transfer of the servient land.
When the other party detrimentally relied
16
Q
Equitable servitudes and its requirements
A
Equitable servitudes are covenants about land use that are enforced at equity by injunction. For a servitude to be enforced at equity, it must be in writing and meet the following requirements: (i) there must be intent for the restriction to be enforceable by and against successors in interest, (ii) the servitude must touch and concern the land, and (iii) if the person against whom the servitude is to be enforced is a purchaser, he must have notice (whether actual, record, or inquiry notice) of the servitude.
17
Q
Can a third party enforce equitable servitudes?
A
No. Restriction touches and concerns the land because it affects the owners as property owners, not merely as individuals.
18
Q
Equitable servitudes. vs. Zoning
A
Zoning wins.
19
Q
comomn law doctrine of worthier title
A
the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. It essentially provides that a remainder cannot be created in the grantor’s heirs, at least not by those words.
A doctrine in real property law creating a presumption that when a grantor conveys a future interest to the grantor’s own heirs, the grantor actually intended to keep the interest in himself or herself.
20
Q
Rule of Convenience
A
1) Rule of convenience as a savior
The rule of convenience, which is a rule of interpretation, can operate to prevent the application of the Rule to a class transfer. Under this rule, membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift.
Example 1: A conveys Blackacre “to B for life, and then to B’s grandchildren.” At the time of the conveyance, B has one grandchild, X. X has a vested remainder subject to open. Although B may have grandchildren born more than 21 years after B’s or X’s death, the class will close upon B’s death because B has a grandchild, X. Consequently, X and any other grandchildren born prior to B’s death will take Blackacre. The Rule will not apply to void their interests in Blackacre.
21
Q
Transferability of vested remainder
A
A vested remainder interest is transferrable during the holder’s life as well as upon death.
22
Q
Transferability of executory interests
A
In most jurisdictions, an executory interest may be transferred during the holder’s life as well as upon her death.
23
Q
Expectancy
A
An expectancy is not a true property interest, only a right that will not come into existence until the happening of an event. For example, an heir is said to have an expectancy of an inheritance, but the heir has no legal right to any property until the death of the property owner to whom the heir is related.
24
Q
Severance of JT by one party + 3 parties own by JT. JT destroyed and affects the other two?
A
Yes. becomes TIC NONONONONONO
NO. it does not affect the other JTs of the other two.
25
"JT + Right of survivorship" + unequal share distribution. JT created?
Nope. Although the owner used the term “joint tenants with the right of survivorship” in devising the undeveloped land to her brother and sister, each held their interest in the property as tenants in common with one another. They did not own equal shares of the land because the sister was devised a 2/3 interest, while the brother was devised a 1/3 interest.
26
Tenancy at will + one party expressly given the right of termination. Result?
A tenancy at will is a leasehold estate that may be terminated by either the landlord or the tenant. If only one party is expressly given the right to terminate the leasehold, the lease may, when taking into account all other circumstances, be unconscionable. In such a case, either party is given the ability to terminate the lease.
27
Termination rights in tenancy at will - asymmetry between the landlord and the tenant
termination rights in at-will tenancies can be limited; for example, a landlord is not granted an implied right of termination when a lease expressly gives a tenant the right of termination but is silent as to the landlord.
28
When is the implied convenant of marketable title present in the land sale transaction?
Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a land sales contract, regardless of the type of deed created.
29
Defects in the title that render it unmarketable
i) Title acquired by adverse possession that has not yet been quieted (i.e., supported by a judicial decree);
ii) Future interests wherein the holders of such interests have not agreed to the transfer;
iii) Private encumbrance (e.g., mortgage, covenant, option, or easement);
iv) Violation of a zoning ordinance; or
v) Significant physical defect (e.g., an encroachment that is incurable).
30
Option-holder's proposal to alter the terms for purchasing the property -> counter offer?
No. although an offeree rejects an offer by making a counteroffer, an option holder may propose to alter the terms for purchasing the property subject to the option without sacrificing the right to exercise the option
31
Things that toll the statute of limitations of AP
The statute of limitations for quiet-title actions against those alleging adverse possession does not run against a true owner who is afflicted with a disability at the inception of the adverse possession. Insanity, infancy, and imprisonment may all qualify as disabilities that toll the statute of limitations.
32
Define "hostile" in AP
Among the requirements for adverse possession is that the adverse possession must be hostile. In a majority of jurisdictions, “hostile” merely means without the owner’s permission; it does not require that the possessor purposefully seeks to defeat the owner’s title because the intent of the possessor is irrelevant.
In jurisdictions that consider intent, some will grant title to a possessor who, in good faith, thought he had the legal right to possess (i.e., believed that the property was not owned or thought that he owned the property).
Others require the intent to be based on bad faith (i.e., aggressive trespass).
33
Requirements for an effective deed.
The document was valid as a deed because it identified the grantor and grantee,
contained a description of the property, and
was signed by the grantor.
In the deed, the owner expressed his intent that the transfer take place immediately.
By giving the deed to a third party without reserving the right to reclaim the deed, the owner effected delivery of the deed.
34
When is the acceptance of the deed presumed?
Finally, although the son did not physically accept the deed until after the owner's death, the son's acceptance is presumed at the moment that the owner delivered the deed to the neighbor since the transfer was beneficial to the son.
35
What does 'the delivery of the deed' actually mean?
Although it is often stated that a deed must be delivered in order for a real property interest to pass (i.e., a delivery requirement), the term "delivery" is used as shorthand for the existence of the necessary grantor
intent.
Physical transfer of a deed is not required and is not conclusive evidence of the grantor's intent.
The execution and recording of a deed creates a rebuttable presumption that the deed is to be presently operative.
36
When there is no recording act, which rule governs? What is the rule's requirement?
if the recording act does not govern, the common law first in time, first in right rule generally applies to determine priorities between competing interests in land.
All of the recording acts require that the later grantee acquired the property for value in order to be protected by the act.
37
The Common law doctrine of exoneraiton of liens
The devisee of real property is entitled under the common-law doctrine of exoneration of liens to have any outstanding balance of a mortgage or other encumbrance on the property to be paid from the remaining assets of the testator's estate.
38
Doctrine of satisfaction / Ademption by Satisfaction
The doctrine of satisfaction follows from the principle that the equity imputes an intention to fulfil an obligation.
The doctrine of ademption by satisfaction provides for the situation in which a testator decides to change the timing of a gift in order to permit the beneficiary to enjoy the benefits of the gift before the testator’s death. If a pecuniary gift is given before the death of the testator, the same devise in the testator’s will is considered already fulfilled and is not given after his death.
39
Ademption
Under the doctrine of ademption, the transfer of property by a testator subsequent to the execution of a will removes the property from his estate and the devise of the property is adeemed.
)Condo sold after will execution --> no proceed payment to you!
Here, the son could contend that the devise of the cabin to the widower’s niece was adeemed when the widower sold the property during his lifetime.
40
In a title theory state, legal title is in the------ until the mortgage has been fully satisfied.
Mortgagee(bank(
41
An acceleration clause in the mortgage
An acceleration clause provides that the full amount of the mortgage obligation becomes due upon default.
42
Countervailing equities against returning the real property
a court will not order the return of the property if there are countervailing equities, such as the ownership of the property by a good faith purchaser.
43
Buyer did not assume the mortgage. Bought 'subject to' mortgage. Can the bank still foreclose?
Y.
Theory of mortgage (lien/title) - irrelevant to the foreclosure
Although the buyer did not assume the limited partnership’s loan, the buyer nevertheless took the land subject to the bank’s mortgage. Consequently, although the buyer was not personally liable to repay the loan, the bank has the right to enforce its security interest through foreclosure.
44
The third party entered into a new loan with the bank and the bank agreed to excuse the individual’s loan obligation. What results with regard to the individual's loan obligation?
Novation
45
Transfer of mortgage. Transferor still liable for the note that is secured by the mortgage?
Yes. Following the transfer of a mortgage, the investor, as maker of the note, remains liable on the note absent a release by the bank or other act that would discharge the investor’s liability.
46
Assumption of mortgage
1. effect on transferor's liability
2. effect on transferee's liability
assumption of a mortgage by a transferee of the mortgaged property does not eliminate the transferor’s liability,
but instead makes the transferee also liable to the mortgagee for payment of the note.
47
Foreclosure by a junior interest holder. Possible?
Yes. Foreclosure by junior interest holder does not impact senior interests.
48
Purchase money mortgage
A purchase-money mortgage is a mortgage granted to (i) the seller of real property or (ii) a third-party lender, to the extent that the loan proceeds are used to acquire title to the real property or construct improvements on the real property if the mortgage is given as part of the same transaction in which title is acquired.
A purchase-money mortgage has priority over mortgages and liens created by or that arose against the purchaser-mortgagor prior to the purchaser mortgagor’s acquisition of the property, whether or not recorded.
49
Purchase price reflecting the assumption of mortgage + Purchaser of the mortgaged property who assumed the mortgage. Can assert defenses of the mortgagor(the original seller) against the enforcement of the mortgage?
What is the reason?
No. If the purchase price reflects the assumption of the mortgage, the purchaser of a mortgaged property who assumes the mortgage cannot assert the defenses of the mortgagor-seller against the enforcement of the mortgage. Otherwise, the purchaser would, by being permitted to avoid the assumed obligation, be unjustly enriched. (Note: A deed of trust functions as a mortgage in many states.)
50
Covenant - Touch and Concern requirement
To run with the land, a covenant must touch and concern the land, which means that the benefit or burden must affect both the promisee and the promisor as owners of the land, and not merely as individuals. The benefit in this case is an economic benefit, rather than a benefit affecting the land’s physical use.
51
Requirements of enforceable convenant.
In order for a covenant to be enforceable it must be in writing, with the intent that the duties and rights run with the land, must touch and concern the land, subsequent purchasers must have notice of the covenant (either actual, constructive, or inquiry notice), and the parties must have horizontal privity (the estate and the covenant are contained in the same instrument) and vertical privity (an unbroken chain of ownership from the original parties).
52
Available remedies for equitable servitude
Only injunctions.
53
Termination of covenant. How?
A covenant can be terminated by abandonment if the parties to the covenant act in an affirmative way that shows a clear intent to relinquish the covenant right; mere nonuse, however, or statements of intent without affirmative conduct, will not constitute abandonment.
54
Fixture - part of the real property?
Any restrictions?
Yes. Fixtures, or structures built on real property, become part of the realty.
whether the man paid for its construction or not. Absent some other legal prohibition not mentioned in the facts, the buyer could unilaterally decide to tear down the wall.
55
Fructus naturales
Fructus naturales are wild crops that are not cultivated; such crops are considered real property and pass automatically with the land.
56
A private nuisance .
Standing?
A private nuisance is a substantial, unreasonable interference with another individual’s use or enjoyment of his property. The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct.
Anyone with possessory rights in the property may bring a nuisance claim.
57
Public nuisance claim
A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. Although the smells emanating from the project site are adversely affecting those who live in the area, to recover for a public nuisance, a plaintiff must show that he suffered a different kind of harm than that suffered by the rest of the community.
58
Right to subjacent support + Transferee regarding the underground mineral right + liability for damage that occurs to the existing structure
The transferee of such rights is strictly liable for any damage that occurs to existing structures on the land as a consequence of subsidence caused by the removal of the oil or minerals.
59
Right to sunlight or view?
no. A property owner, as an attribute of owning the property, does not have a legal right to sunlight or to a view.
60
Foreclosure of a senior mortgage by a sale --> impact on junior mortgages?
When are junior mortgages NOT eiminated?
Generally, the foreclosure of a senior mortgage by a sale eliminates any junior mortgages.
However, when a junior mortgagee is not given notice of the foreclosure proceedings, the junior mortgage is not eliminated.
61
Accleration clause in the mortgage. Enforceable?
Exemption?
Yes.
Residential real property exemption -
Transfer by the mortgagor(borrower) to his living trust
Transfer of property to a spouse/child
Transfer of property to an ex-spouse due to divorce
62
Borrower deafult+ Mortgage recorded + Can the lender foreclose?
Valid reason - purchase money mortgage?
Yes.
No. Mortgagee can foreclose whether or not the mortgage was a purchase money mortgage
63
Impact of a foreclosure sale on the mortgage interest]
Does it matter that the value of a foreclosed asset was below the mortgage value?
A foreclosure sale extinguishes the mortgage interest being foreclosed upon.
Nope
64
Mortgages and defenses
A mortgage is generally enforceable only to the extent that the underlying obligation is enforceable. A mortgage is subject to the same defenses as the underlying obligation secured by the mortgage (e.g., mistake, duress, failure of consideration, fraud, or lack of capacity).
65
Subrogation of mortgage
A person who pays off a loan that is secured by a mortgage in order to protect her own interests acquires the rights of the original mortgagee-lender and may therefore enforce the mortgage.
s a tenant in common with an equal ownership interest in the store with the bookkeeper, the manager is entitled to contribution from the bookkeeper for one half of the payment made by the manager because the payment protected the manager’s interest in the store as well as the bookkeeper’s.
66
Creation of affirmative easement
An express easement arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds.
67
Termination of an express easement
an express easement may be terminated by an express written release, merger, severance, abandonment, prescription, or estoppel.
68
Expanded use of easement - ground for termination?
No
69
No consideration when creating express easement - ground for termination?
No
70
Unilateral revocation of an express easement by a servient estate owner?
No.
71
Owner of mineral rights - liability for damages done to structures built on the surface of the land + after the mineral rights transfer
Not liable
UNless
unless the owner fails to exercise reasonable care in removing the minerals.
72
For the purpose of ---- what estate results?
precatory language without effect. Fee simple.
73
Possibility of Reverter - automatic?
yes
74
Right of reentry = automatic?
No
75
Tax claim standing
An owner of FSSCS vs Grantor with the Right of Reetnry
depends on the exercise
76
ABC each in JT
C transfers to A his JT
share of A, B
A - 1/3JT * 1/3 in TIC
| B - 1/3 JT
77
Doctrine of atornment
Under the doctrine of attornment, the tenant is bound to honor any covenant in his lease that has been assigned by the landlord to a third party, if the covenant touches and concerns the land. Here, the liability waiver touches and concerns the land because it has to do with clients using gym equipment in the gym facility.
78
Doctrine of merger
Under the doctrine of merger, a buyer of property generally cannot sue on promises contained in the contract, such as a termite warranty, once closing has taken place.
79
Time of the essence
A court will assume that time is not of the essence in a real estate contract, unless the contract specifically states that time is of the essence, circumstances indicate that this was the intention of the parties, or one party gives the other party notice that time is of the essence. If time is not of the essence, strict adherence to the closing date set in the contract will not be required in equity.
80
Seller's duty to disclose
In a majority of jurisdictions, including the jurisdiction here, a seller of a residence has a duty to disclose. The seller must disclose all known material physical defects to the buyer. The defect must not be readily observable or known to the buyer. In this case, the man was not aware of the presence of black mold in his house. Therefore, he did not violate the duty of disclosure imposed on him by statute.
81
Seller breach. buyer's remedy?
buyer is entitled to specific performance when a seller breaches a contract to sell a real property interest because the buyer’s remedy at law (i.e., damages) is considered inadequate due to the unique nature of land. In addition, when the buyer seeks specific performance with respect to property for which there is a title defect (e.g., an encumbrance), the buyer may also obtain an abatement in the purchase price to compensate the buyer for the defect.
82
Doctrine of equitable conversion
Upon execution of the land sales contract, the couple became the equitable owners of the house; the owner merely held legal title which he was required to convey at closing to the couple. Consequently, the creditor's judgment lien, which was obtained after the contract was executed, was not enforceable against the house because the house no longer belonged to the owner.
83
Right of First Refusal - Requirements
SoF + terms reasonable
84
RAP & ROFR
the Rule Against Perpetuities applies to rights of first refusal.
The Rule does not apply when the right is granted to a current leasehold tenant. (option held by a current tenant)
Commercial transaction ROFR
85
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.”
Notice
86
Owner - fast food vs. Owner - Chef - Cul School
Owner-Chef(~rec)-CulSchool(rec)
then
Owner-Fast(Rec)
Who wins under race notice
Fast.
Owner-Chef-CulSchool
Chef's failure to record --> wild deed
87
Requirements of a valid deed
Parties / Sign by the grantor / Words of transfer / Description of the property
88
Transfer of a RP interest - delivery of deed.
In order to validly transfer a real property interest, the grantor must make a present transfer of the interest; this is usually demonstrated by the delivery of the deed to the recipient. However, intent can be implied from the words and conduct of the grantor, even if the deed has not been actually delivered.
89
A deed to a nonexistent grantee. Impact on the conveyance to the co-grantee? impact on the original grantor?
A deed to a nonexistent grantee is void as to the nonexistent grantee. Therefore, the purported conveyance of a one-half interest in the real property to the buyer’s brother failed, and the original owner retains this one-half interest. The conveyance of a one-half interest in the property to the buyer is unaffected. (Note: The buyer should be successful in an unjust enrichment action to recoup one-half of the purchase price from the original owner.)
90
Default of mortgage obligation. Choice of the lender?
1. Foreclose 2. Personal liability
91
Due on encumberance clause
A due-on-encumbrance clause gives the lender the right to accelerate a mortgage obligation upon the mortgagor obtaining a second mortgage or otherwise encumbering the property. A due-on-encumbrance clause is generally enforceable to the same extent as a due-on-sale clause. Upon such an encumbrance, the lender can demand immediate payment of the full amount of the outstanding obligation, including interest. If the mortgagor refuses to pay the balance, he is in default and the lender can foreclose on the property.
92
Transfer of promissory note and its impact on mortgage
If the promissory note is transferred without the mortgage, the mortgage is treated as having been transferred as well under the principle that the mortgage follows the note.
93
Intervivos transfer of Executory Interest
Although at common law an inter vivos transfer of an executory interest was not permitted, today such a transfer is recognized as effective to pass this property interest.
94
Co-tenants and fiduciary obligation
Although co-tenants owe a duty of fair dealing to each other, co-tenants generally do not owe fiduciary duties to each other. However, a fiduciary obligation can be imposed on co-tenants who jointly purchase the property in reliance on each other or acquire their interests at the same time from a common source, such as by gift, will, or inheritance. Typically, these co-tenants will be related or in a confidential relationship. The primary situation in which such a co-tenant is found to have a fiduciary obligation arises when the property is sold at a tax or mortgage foreclosure sale and a co-tenant acquires the property. In such a situation, the other co-tenants have the right to reacquire their original interests by paying their due contributions within a reasonable time. Here, the co-tenant purchaser, the sister, can be compelled to permit the other former co-tenants the opportunity to reacquire their interests in the property by paying their share of the acquisition costs.
95
Ex-wife v. A friend who got RP from the husband.
| Divorce law or Situs law
Situs law. (Divorce law is for hubby and wife)
96
The Rule in Shelley's case
The Rule in Shelley’s case provides that a conveyance which attempts to give a person a life estate, with a remainder to that person's heirs, will instead give both the life estate AND the remainder to that person. Thus, the conveyance gives that person the land in fee simple absolute (full ownership without restriction).
Suppose Joe has a rich relative who considers Joe careless and imprudent, but who wishes to ensure that Joe's children are provided for. The relative might try to deed a house "to Joe for life, and then to Joe's heirs", thus ensuring that Joe and his family could live in the house, but Joe could not sell it to pay gambling debts. The "remaindermen" in this case are the grandchildren. The Rule in Shelley's Case states that, this language notwithstanding, Joe is the absolute owner of the property.
97
Seller keeping the deposit in the escrow account on the basis of liquidated damage. Rationale?
. The touchstone for the enforceability of a liquidated damages clause, such as this one, which provides for a seller to retain the earnest money in the event of the buyer’s breach, is that the amount be reasonable.
98
Execution of a deed by an agent
An agent may execute a deed on behalf of a principal-grantor. An otherwise valid deed that is signed by the agent with only the name of the principal is a valid deed if the agent had authority to sign.
99
A deed with nominal consideration. Valid?
Yes. Consideration is not required to effect the conveyance of real property. Here, the instrument contained all the necessary elements of a valid deed. Consequently, it operates to effect the conveyance of the land regardless of whether or not the recited consideration was paid.
100
Standard for common-interest community association
be reasonable. In the exercise of its discretionary powers, a common-interest community association or one of its bodies, such as an architectural review board, must act reasonably. Here, the review board made its decision to reject the homeowner’s deck on the basis of its size in comparison to other structures built by other community members. Consequently, the court is likely to find that the board’s rejection of the homeowner’s plans was reasonable, and will most likely grant the association’s request for an injunction.
101
Tenant's right in moving a fixture attached to the property.
In general, absent an agreement to the contrary, a tenant may remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time. (OK if the time passes the termination some degree)
102
Purchase money mortgage
Purchase money mortgages have priority over all earlier non-purchase-money mortgages and liens created by or that arose against the mortgagor prior to the mortgagor’s acquisition of the property, whether or not recorded.
103
“A conveyance of any interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”
Notice
104
Mortgage modification
A senior mgg who enters into an agreement with the mogor to modify the mortgg by making it more burdensome -----its interest, but only as to ------. The original mortgage will other wise remain-----
Subordinates, the modification Superior
105
Senior mortgagee releasees a mortgage + replace with a new mortgage = New mortgage priority?
Same priority as the former mortgage , EXCEPT to the extent a change is materialy prejudicially to a junior mortgage holder .
(Bank's additional wedding loan arrangement prejudicing the credit agencies' junior loan)
106
Easement appurtenant. May deliver benefits to another additional parcel of land?
An easement appurtenant is a specific type of easement where two properties are linked together as servient and dominant estates. The servient estate is the estate that allows the easement, where the dominant estate is the one that benefits from the easement.
Nope
107
Co-tenant's right to the rent. When the other co-tenant doesn't make use of the property?
Absent an agreement to the contrary, a co-tenant is generally not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property.
108
Co-tenant's reimbursement right re: repairs, taxes
A co-tenant can collect contribution from the other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses (e.g., taxes or mortgage interest). However, a co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property. Additionally, co-tenants do not have the right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary.
109
RAP
Exception under the CL
Exception under the Uniform Statutory RAP
Cl exception - ROFR granted in conjunction with a lease
USRAP exception - ROFR in commercial lease
110
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law.”
Race
111
Early termination of lease. Rent?
The majority rule is that the doctrine of anticipatory repudiation does not apply in the case of a lease of real property. Instead the landlord is only entitled to rental payments as they become due.
112
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.”
Notice
113
“for so long as it is used for religious purposes.”
FSD
114
JT interest transfer. Consent?
No. Here, the conveyance of the house to the man and woman created a joint tenancy. Accordingly, the woman can transfer her interest in the property without her husband’s consent.
115
FHA. housing discrim
The federal Fair Housing Act (FHA) prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions such as advertising, homeowner’s insurance, and zoning. Among other protected classes, the FHA prohibits discrimination on the basis of familial status, which includes having custody of children under the age of 18 and being pregnant. Here, the man’s application was rejected based on his status as a custodial parent of a minor child.
116
Condemnation. definition?
Partial?
Complete?
tenant duty
Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken. In this case, the condemnation was partial, as five of the tenant's ten storefronts were demolished.
117
Constructive eviction.Definition and requirement
If the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant’s use and enjoyment of the leasehold, then the tenant’s obligation to pay rent is excused due to constructive eviction only if the tenant gives notice and adequate time to permit the landlord to fulfill his duty and vacates the property within a reasonable amount of time.
118
Delivery of marketable title. When?
Unless otherwise agreed, the seller is not required to deliver marketable title until the closing.
119
With regard to an outstanding mortgage, the seller-----permitted to apply the proceeds from the sale of the property to the mortgage obligation.
IS
With regard to an outstanding mortgage, the seller is permitted to apply the proceeds from the sale of the property to the mortgage obligation. If the sale proceeds exceed the amount of the outstanding mortgage, the seller, by doing so, can eliminate this title defect.
120
Real property seller's duty to disclose
In a majority of jurisdictions, a seller of a residence has a duty to disclose all known material physical defects to the buyer.
The defect must not be readily observable or known to the buyer.
To be material, the defect must substantially affect the value of the residence, impact the health or safety of a resident, or affect the desirability of the residence to the buyer.
When a seller fails to make such disclosures, the buyer may rescind the sale or seek damages. B
121
No mention re: time of the essence + no adherence to the closing date. What happens? rescission or other remedy?
When time is not of the essence, however, strict adherence to the closing date set in the contract will not warrant rescission of the contract. Courts generally assume that time is not of the essence unless it is expressly stated in the contract, circumstances indicate this is the intention of the parties, or one party gives the other party reasonable notice that time is of the essence. When time is not of the essence, a party can sue for specific performance as long as the party is ready to perform within a reasonable time from the date set for performance.
122
Enforcement mechanism for valid RP K. Policy reason?
Valid contracts involving the transfer of an interest in real property may be enforced by an order of specific performance because every parcel of real property is considered unique.
123
After-acquired title doctrine
Under this doctrine, title to property acquired by a person who previously had purported to convey the property to another automatically passes to that person. Here, the seller had acquired title to the property before the closing.
124
Uniform Vendor and Purchaser Risk Act. Implication?
minority of jurisdictions have adopted the Uniform Vendor and Purchaser Risk Act. Under this act, the risk of loss falls upon the owner because the buyer did not have possession of the warehouse at the time of the destruction of the warehouse.
125
Rental property and AP
Although the establishment of a prescriptive easement appurtenant would require that the adverse user have ownership of the dominant estate, there is no requirement that, in order to qualify as an adverse possessor of real property, a person must own adjoining property.
126
Req for tacking
Privity
127
Must you record a deed to effect a transaction?
although the owner asked his cousin not to record the purported deed, recording a deed is not required to effect a valid transfer of the lot.
128
Deed. Specify grantee?
A deed that does not sufficiently identify the grantee is ineffective.
129
Effect of release of mortgage on the mortgagor
By releasing the mortgage, the lender has eliminated the homebuyer’s recourse to the mortgage to recover, at least to the extent of the value of the residence, the amount that the homebuyer is obligated to pay the lender pursuant to the note. Consequently, the homebuyer’s obligation is discharged as a result of the lender’s release of the mortgage.
This is true even though the homebuyer also has recourse to seek the personal liability of her friend because of the assumption agreement between them.
130
Assumption of mortgage. Impact on the transferor and transferee
this assumption agreement, through which the friend became primarily liable for payment of the note and the homebuyer secondarily liable as a surety, was only between the homebuyer and her friend.
131
Subrogation (Payment by a Third Party)
A person who pays off another person’s mortgage obligation may become the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment. Among the circumstances in which the equitable remedy of subrogation is appropriate is when the payor (i.e., the subrogee) is under a legal duty to pay the obligation, or when the payor does so to protect his own interest or on account of misrepresentation, mistake, duress, fraud, or undue influence. Restatement (Third) of Property: Mortgages § 7.6. Subrogation (Payment by a Third Party)
132
Shelter Rule
Grantors who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected.
133
Donor - Donee. Donee has the defenses to mortgages that donor has? What about the purchaser (re: purchase price)?
A donee who takes property that has been mortgaged is entitled to assert the donor’s defenses against the mortgagee. (Note: By contrast, the purchaser of a property that has been mortgaged who assumes the mortgage cannot generally assert the defenses of mortgagor-seller against the enforcement of the mortgage if the purchase price reflects the assumption of the mortgage. Otherwise, the purchaser would, by being permitted to avoid the assumed obligation, be unjustly enriched.)
134
Enforcement of a mortgage
Enforcement of a mortgage is subject to defenses that can be raised with respect to the obligation for which the mortgage serves as security. Here, because the owner-mortgagor has a valid defense to the enforcement of the loan obligation, he also has a valid defense to enforcement of the mortgage.
135
Deficiency judgment
After bringing a foreclosure action, the mortgagee is permitted by many states to bring a deficiency action against the mortgagor and/or any party who has assumed the mortgage if the foreclosure sale proceeds are insufficient to satisfy the mortgage obligation.
136
Easement owner's duty
The owner of an easement has the right as well as the duty to maintain the easement for its purpose unless the parties otherwise agree.
137
Shared easement + Repair decision and contribution?
If the easement is shared, the owner who maintains or repairs the easement may seek contribution from the other owners of the easement after
adequate notice and
an opportunity to participate in repair decisions.
138
Co-tenant right
1. Rent received from a 3P - based on ownership interest
2. Operating expenses - taxes mortgages - to be divided & contributed
3. Repairs - no reimbursement for necessary repairs (may get credit in partition action)
4. Improvement - no reimbursement ( may get credit for partition action)
139
Implied covenant quiet enjoyment
tenant can withhold rent
1. LL actions that wholly or substantially unsuitable
2. Tenant constructively evicted.
140
Constructive eviction1
1. Premises unusable for intended prurpose
2. T notifies the LL
3. LL does not correct
4. T vacates after a reasonable period of time.
141
Implied warranty of habitability. difference from implied covenant of quiet enjoyment?
No requirement for 'vacating'
142
Implied warranty of habitability. Tenant possible action?
1. Refuse to pay rent
2. remedy and offest costs
3. defend against eviction
143
Two exceptions to land sale K SOF
1. Part performance
| 2. Detrimental reliance
