Property Flashcards
(226 cards)
1
Q
What are the duties of a life tenant?
A
A life tenant has a duty to repair and maintain property up to the extent of income or profits derived from the land or its rental value.
2
Q
What are the types of defeasible fees?
A
(1) Fee simple determinable, (2) Fee simple subject to condition subsequent, (3) Fee simple subject to an executory interest.
3
Q
What is a fee simple determinable?
A
A conveyance where the property will automatically transfer to the grantor upon a certain condition.
4
Q
What type of future interest does a grantor have in a fee simple determinable?
A
A possibility of reverter.
5
Q
What is some language for a fee simple determinable?
A
“To A so long as the property is used for Y.”
6
Q
What is the manner of transfer upon occurence in a fee simple determinable?
A
Automatic transfer to grantor and their heirs alone.
7
Q
Does the rule against perpetuities apply to the fee simple determinable?
A
No. An automatic reversion to grantor or heirs precludes ambiguity or uncertainty.
8
Q
What is a fee simple subject to condition subsequent?
A
A conveyance where the grantor retains a “right of entry” to terminate the estate.
9
Q
What is the future interest of a fee subject to condition subsequent?
A
A right of reentry held by the grantor.
10
Q
What is a fee simple subject to an executory interest?
A
A property automatically transfers to a third party upon the happening of a given event.
11
Q
What is the future interest in a fee simple subject to an executory interest?
A
A shifting executory interest is held by a third-party (not the grantor).
12
Q
What are the characteristics of a fee simple determinable?
A
(1) Automatic forfeiture, (2) potentially infinite duration, (3) fully transferable?
13
Q
What does it mean for an estate to be fully transferable?
A
(1) Alienable, (2) devisable, and (3) descendible.
14
Q
How is a fee simple determinable created?
A
With clear language such as “for so long as,” “while,” “during,” “until,” or similar language. Words of hope or aspiration are insufficient.
15
Q
What are the characteristics of Fee Simple Subject to Condition Subsequent?
A
(1) Forfeiture is not automatic, only the right of reentry (2) Potentially infinite in duration, (3) Transferable.
16
Q
How is a fee simple subject to condition subsequent created?
A
With clear durational language with a right of reentry for the grantor. Words of hope, desire, or aspiration are insufficient.
17
Q
What are the characteristics of a fee simple subject to an executory interest?
A
(1) Automatic forfeiture, (2) potentially infinite, (3) transferable.
18
Q
How is a fee simple subject to an executory interest created?
A
Clear durational language is required. For example: “To A, but if A does x, then to B.” Words of desire, hope, or aspiration are insufficient.
19
Q
What is a life estate?
A
An interest in land that lasts only for the life of the interest holder.
20
Q
What is the name of a holder of a life estate?
A
A life tenant.
21
Q
What is the defeasibility of life estates?
A
An instrument may create a defeasible or indefeasible estate.
22
Q
What are the rights of a life tenant?
A
All standard property rights, but must maintain property, make reasonable repairs, and no commit waste.
23
Q
What are the future interests of a life estate?
A
(1) Reversion or (2) Remainder.
24
Q
What is a Reversion?
A
(1) A future interest (2) in the grantor (3) when a life estate does not provide for a disposition of the property to a third party.
25
What is a Remainder?
(1) A future interest (2) following a life estate (3) that identifies a third-person.
26
What is a "estate pur autre vie"?
A life estate that attaches possession to the lifespan of a person is different from the life estate holder. "To A so long as B lives"
27
What is the doctrine of waste?
A life tenant cannot commit acts that constitute an unreasonable use of land and/or injure the interests of a future interest-holder.
28
What are the types of waste?
(1) Affirmative (voluntary) waste, (2) Permissive waste, (3) Ameliorative waste.
29
What is affirmative waste?
Life tenants cannot consume or exploit natural resources on the land.
30
What are the exceptions to exploiting land resources?
(1) where necessary for repairs or maintenance of land, (2) when grant expressly gives the right to exploit, or (3) if the land was used for exploitation of resources prior to the grant.
31
What is the "Open Mines" doctrine?
If exploitation occurred before the life estate, life tenant may only extract from already-open mines.
32
What is "permissive waste"?
Waste is created due to the negligence of a tenant.
33
What obligations are attached to life estates?
(1) Pay property taxes, (2) interest on encumbrances, (3) avoid waste, (4) or other duties.
34
What is ameliorative waste?
Any acts by the life tenant that economically benefit the tenant. Prohibited under common law, but is now usually permitted in most modern jurisdictions.
35
What are the characteristics of remainders?
(1) Created by express conveyance, and (2) transferable.
36
What are the categories of Remainders?
(1) Vested Remainders and (2) Contingent Remainders
37
What are the types of vested remainders?
(1) Indefeasibly vested remainder, (2) vested remainder subject to total divestment or executory limitation, (3) vested remainder subject to open (class gift)
38
How does a contingent remainder arise?
(1) There is a condition precedent to the future interest becoming possessory, (2) the future interest vests in an unascertained taker, or both (1) & (2).
39
What are the limitations to vested remainders?
(1) Must not be subject to any condition precedent, or (2) vest in an unknown or unascertained person.
40
What is the form of an indefeasibly vested remainder?
Becomes possessory immediately upon termination of the prior estate. "to A for life, then to B."
41
What is the form of a vested remainder subject to total divestment?
Subject to some conditions subsequent such that the remainder could be divested after taking possession. "to A for life, remainder to B; but if B weds, to C"
42
What is the form of vested remainder subject to open (class gift)?
A remainder vested in a described class of takers, at least one of whom is capable of taking possession. "to A for life, remainder to children of B and their heirs."
43
What types of classes for vested remainders subject to open?
(1) Open is where a class may grow for new members and (2) closed classes where it may not grow.
44
What is the rule of convenience?
If any member can call for distribution then the class will close.
45
What happens to a contingent remainder subject to condition precedent when the triggering event or condition?
The interest automatically becomes an indefeasibly vested remainder. "To A for life, then to B and his heirs when B gets married" If B is unmarried at the time of the conveyance, A has a life estate, B has a contingent remainder (b/c marriage is a condition precedent), and the grantor has a reversion in case B is not married when A dies; if B gets married he has an indefeasibly vested remainder.
46
What is the common law rule of destructibility?
At common law, a contingent remainder is destroyed if it remains contingent when the preceding estate ends. G grants "to A for life, then to B upon going to college" and A dies, but B has not gone to college thus B gets nothing.
47
What is the modern law rule of destructibility for contingent remainders?
(1) Upon the end of a preceding estate, (2) the contingent remainder is a reversion for the grantor [+heirs] (3) until the grantee subject to the condition satisfies the condition.
[E.g. G grants "to A for life, then to B upon going to college" and A dies, but B has not gone to college thus G has a reversion.]
48
What is Merger or Shelly's Rule at common law?
If a grantor tries to convey a life estate to a grantee with a remainder in the grantee's heirs the estates merge and the grantee has a fee simple absolute.
49
What is a Merger or Shelly's Rule in modern law?
If a grantor tries to convey successive life estates to a grantee and life estates to their heirs then the original grantee has a life estate and the heirs have contingent remainders.
50
What is the doctrine of worthier title?
If a grantor gives a life estate to a non-heir with a future interest in the grantor's heirs then the contingent remainder is actually a reversion.
E.g. "To A for life, then to my heirs"
51
What is an executory interest?
A future interest in a third party that takes effect by cutting short some interest.
52
What are the attributes of executory interests?
(1) Includes any future interest that is not a remainder, (2) does not grant standing to sue for waste, (3) devisable, descendible, and usually transferable, (4) uses terms such as "but if," "then to," and "for so long as."
53
What are the types of executory interests?
(1) Shifting and (2) Springing
54
What is a shifting executory interest?
Always follows a defeasible fee and cuts short the interest of a grantee in favor of a different grantee. "to A so long as the property for X, but is used for Y, to B." B has a shifting executory interest.
55
What is a springing executory interest?
A future interest held by a grantee that cuts short the interest of a grantor and their heirs. "To A if he does X."
Basically a reversion for a third-party.
56
What is the Rule Against Perpetuities?
No property interest is valid unless it must vest, if at all, no later than 21 years (or by statute) after the death of a life in being at the time the interest was created.
57
What is the limitation on the rights of first refusal?
The RAP forbids the exercise of contingent interests beyond the statutory time for RAP.
58
What is the effect of RAP on class gifts?
A class must be closed with all conditions precedent satisfied for every member.
Rule of convenience may save a class that would otherwise violate RAP.
59
What is the effect of RAP on charities?
RAP does not apply to conveyances from one charity to another.
60
What is a tenancy in common?
An estate with multiple tenants in which each co-tenant owns a distinct, undivided interest and each has a right to possession of the whole estate.
61
What are the key characteristics of an interest in land from a tenancy in common?
(1) Shares can be uneven, (2) each tenant has the right to possess the whole, (3) shares are fully alienable, transferable, and descendable, (4) surviving tenants have no right of survivorship and is (5) the default form of shared property interest.
62
How can joint tenancy be created?
(1) A single title, (2) granting interests at the same time, with (3) equal and identical interests, and (4) equal possessory rights.
63
What are the transferability rights of a joint tenancy?
Alienable, but not devisable or descendible.
64
What is a severance of a joint tenancy?
Any joint tenant may unilaterally sever creating a tenancy in common with respect to the severed interest.
65
What is the effect of transfer upon joint tenancy?
If more than two the joint tenancy remains, but otherwise it creates a common tenancy.
66
What is the effect of mortgages upon joint tenancy?
(1) Lien theory: joint tenant can take a mortgage on their interest without severing the joint tenancy, (2) Title theory: joint tenancy is severed if any joint tenant takes a mortgage on their interest because title passes to the mortgage.
67
What is tenancy by the entirety?
A marital estate similar to joint tenancy but between a married couple.
68
How is a tenancy by the entirety created?
Created by a conveyance to a married couple with the same conditions as a joint tenancy. Presumed where a conveyance is made jointly to a married couple.
69
What are the characteristics of a tenancy by the entirety?
(1) Right of survivorship, (2) no right of partition or unilateral conveyance of interest, (3) creditors of one spouse cannot reach the interest of the other.
70
How can a tenancy by the entirety be severed?
(1) Death, (2) mutual agreement in writing, (3) divorce, (4) execution by a joint creditor.
71
What are eight rights & duties of co-tenants?
(1) Possession of whole, (2) Rent & profits from third parties, (3) no adverse possession against other tenants, (4) each tenant responsible for their share of carrying costs, (5) co-tenants may seek contribution for reasonable repairs if done with prior notice, (6) no right to contribution for improvements, but co-tenants may be entitled to credit for an increase in attributable value, (7) co-tenants can bring action for waste, (8) partition or sale may be petititoned.
72
What are the types of leasehold estates?
(1) Tenancy for years, (2) periodic tenancy, (3) tenancy at will, (4) tenancy at sufferance.
73
How is a periodic tenancy created?
(1) Express agreement, (2) by implication (usually holdover), (3) operation of law.
74
What are the situations for operative law in tenancy?
(1) Invalid lease, if the tenant takes possession despite invalid lease and landlord, accepts payment, (2) holdover tenant where landlord accepts rent from a holdover, a periodic tenancy arises for ht period the payment covers.
75
How is a periodic tenancy terminated?
(1) Sufficient notice of one full period, unless 1 year then 6 months, (2) Effective date must be at the end of the period.
76
What are a landlords options if a tenant stays over?
(1) sue to evict or (2) impose a new periodic tenancy.
77
What rent can be demanded for tenancy at sufferance?
A landlord may demand higher rent for both the holdover period and any new periodic tenancy with sufficient notice of the increase prior to the expiration of the lease.
78
What is the effect of a commercial tenant hold-over?
It creates a new periodic tenancy.
| E.g. the new periodic tenancy can be year-to-year.
79
What are the tenant's duty under common law?
(1) Duty to make ordinary repairs, (2) duty to avoid waste, (3) duty to pay rent, (4) duty to not use the property for illegal purposes, (5) duty to cover liabilities for injuries sustained by third parties invited by a tenant.
80
When may fixtures be removed?
(1) Life estate, (2) installed by tenant removed before end of lease and does not cause substantial harm to property.
81
When does a chattel become a fixture?
(1) Intent is usually determinative, and (2) integrated into a structure almost always becomes a fixture.
82
What are the landlord's remedies for a tenant breach if the tenant retains possession? 🔀
(1) File for eviction, or (2) keep the lease and sue for rent due.
83
What are the landlord remedies for tenant abandons premises?
(1) Surrender by treating the tenant's surrender and accepting it, releasing the tenant from the lease, (2) ignore (minority rule) hold tenant liable for unpaid rent, or (3) re-let (majority) lease premises to new tenants and hold breaching tenant liable for any losses.
84
What are the landlord's duties & warranties?
(1) Duty to deliver possession, (2) implied covenant of quiet enjoyment, (3) implied warranty of habitability, (4) tort liability.
85
What are the distinctions between majority & minority jurisdictions for delivery?
Majority: actual possession; Minority: legal possession.
86
What is the implied covenant of quiet enjoyment?
An implied right to the property, without interference from the landlord.
87
What is actual eviction?
The landlord wrongfully evicts or excludes tenants from the property.
88
What is constructive eviction?
The landlord's actions or inactions render the property uninhabitable.
89
When are the elements of constructive eviction?
(1) Substantial interference, (2) notice by tenant (3) reasonable opportunity to repair and fails to act meaningfully, and (4) tenant vacates.
90
What is the implied warranty of habitability?
(1) Only applicable for residential property, (2) absolute duty cannot be modified by lease terms, (3) legal code or case law specified the standard for a breach.
91
What is the tenant's remedy for a landlord's breach?
(1) move, (2) repair, (3) reduce or withhold rent until a court determines the fair rental value given the breach, (4) remain in possession and seek money damages.
92
What is the landlord's liability for torts?
(1) Common areas with a duty of reasonable care, (2) latent defects have a duty to disclose, (3) assumption of repairs has a negligence standard, (4) public use if known and tenant is unlikely to repair, (5) seasonal or short term lease of a furnished dwelling.
93
What is the rule of lease assignments?
Unless restricted by a lease, a tenant may transfer her leasehold interest in the whole.
94
What are the elements of an assignment of the lease?
(1) Must not be forbidden by lease, (2) entire remainder of the lease, (3) entire right to possess.
95
What are the elements of a sublease?
(1) Must not be forbidden by the lease, (2) partial amount of the lease.
96
What is the privity of an assignment?
(1) Assignees has privity of estate with a landlord in mutual rights & obligations that run with the land, (2) assignee is in privity of contract with the landlord, (3) assignees owes rent to the landlord, but assignor remains liable unless there is an explicit novation with the landlord.
97
What is the privity of a sublease?
(1) Sublessor is in privity of estate and contract with landlord, (2) sublessee pays rent to sublessor as tenant, (3) sublessee is not liable to the landlord for rent and is not bound by any lease covenants without assumption.
98
What is the nature of lease provisions for assignment & sublease?
If a landlord gives a tenant permission despite the provisions, they are waived. All lease provisions restricting assignment or sublease are enforceable but construed against landlords.
99
Who may a landlord recover from in the event of a breach after assignment?
(1) Original Tenant under privity of contract, (2) Assignee under privity of contract & estate.
100
What is an easement?
A non-possessory property interest that confers a right to use another's land.
101
What are the terms used to describe the affected land?
(1) Dominant estate benefits, (2) Servient estate is burdened.
102
What are the types of easements?
(1) Appurtenant, (2) Gross, (3) Affirmative, and (4) Negative.
103
What is an easement appurtenant?
Attaches to the dominant estate and passes automatically granting the owner of the dominant estate to use the serviant estate's land.
104
What is an easement in gross?
An irrevocable, transferable right for a person (actual or corporate) to use and attached to the servient estate.
105
What is an affirmative easement?
Entitles its holder to make affirmative use of the servient estate. [e.g. use of road].
106
What is a negative easement?
Entitles its holder to restrict the servient estate from otherwise permissible activities. [E.g. you cannot build a gain billboard].
107
What is the duty to repair for an easement?
The easement holder must repair if the sole user otherwise the servient landowner and easement holder must apportion repair costs.
108
What are the types of express easement?
(1) Grant and (2) Reservation
109
What is are the elements of a grant easement?
(1) A written instrument, (2) signed by the servient estate holder, (3) which the servient estate owner gives easement to the dominant estate.
110
What are the elements of a reservation easement?
(1) A written instrument, (2) signed by the servient estate holder, (3) grantor conveys title to land with reservation for the right of continued use for a specific purpose, (4) solely for grantor's benefit.
111
What is an easement by presecription?
A process of acquiring or terminating an easement analogous to adverse possession.
112
What are the requirements for an easement by prescription?
(1) Continous for the statutory period, (2) open and notorious where owner knew or should have known, (3) actual, (4) hostile.
113
What is an easement by implication?
An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots.
114
What are the requirements for an easement by implication?
(1) One land divided with easement; (2) common grantor's use is continuous and apparent, (3) reasonably necessary for dominant estate, and (4) parties intended use after division of land.
115
When may an easement by implication be implied without prior use?
(1) Subdivision plat sold referencing a map or plan or (2) profit a prendre where the holder has an implied easement as needed to extract materials.
116
What is an easement by necessity?
An easement that arises if access to or from a property is impossible without the easement.
117
How is an easement by necessity created?
When a landowner sells a portion of property resulting in a division depriving one lot owner of access to a public road or utility. Endures for as long as necessary.
118
What are the elements of a negative easement?
(1) Express grant restricting either (2) light, air, subjacent or lateral support, or stream of water from an artificial flow. NB different from a restrictive covenant.
119
How can an easement be terminated?
(1) Estoppel, (2) End of necessity, (3) destruction of servient tenement, (4) release, (5) abandonment, (6) merger, (7) prescription, and (8) expiration.
120
What are the elements of an easement termination by estoppel?
(1) A servient owner (2) reasonably relies on an easement holder's conduct or representations, (3) indicating an intent to abandon. Non-use is insufficient.
121
What are the elements for an abandonment of an easement?
(1) Holder physically demonstrates (2) an intent to permanently abandon, (3) by conduct with more than mere words.
122
When does an easement terminate by merger?
When on person acquires title to both the dominant and servient estate.
123
What is a license on land?
A right to use or enter anther's land and revocable at will.
124
What are the characteristics of a license?
(1) Privilege, not an interest, (2) revocable, (3) inalienable, (4) no statute of frauds requirement.
125
What is a profit on land?
(1) A non-possessory property interest, (2) entitling the holder to enter the servient estate, and (3) remove resources.
126
What is a real covenant?
A promise to do or refrain from doing something related to land.
127
What are the characteristics of real covenants?
The burden and benefits run with the land. The covenants may be affirmative or restrictive.
128
How does a real covenant terminate?
(1) Written release, (2) Merger of benefited and burdened estates, or (3) Condemnation of burdened property.
129
What are the two types of servitudes?
(1) Covenants provide money damages, (2) Equitable servitude provide injunction.
130
What are the requirements for a covenant burden to run with a land?
(1) Writing, (2) intent, (3) touches and concerns the land, (4) horizontal and vertical privity, and (5) notice.
131
What is necessary for intent in real covenants?
The language of the covenant must clearly show that it was intended to bind successors in interest.
132
What does it mean for a covenant to "touch and concern the land"?
The covenant must affect parties' legal relations as landowners.
133
What is the difference between horizontal and vertical privity?
(1) Horizontal privity involves the relationships between the covenanting parties, and (2) vertical privity relationships between covenanting parties and their successors in interest.
134
What is sufficient for notice of a real covenant?
Successor in interest had notice of the covenant when she took her interest.
135
What are the requirements for the benefits of a covenant to run with the land?
(1) Writing, (2) Intent, (3) touches and concerns the land, (4) vertical privity.
136
What is an equitable servitude?
A covenant enforced in equity against successors through injunctive relief.
137
What is the requirement for creating an equitable servitude?
(1) A writing, (2) intent, (3) touches and concerns the land, and (4) notice.
138
What are the defenses to enforcement?
(1) Pervasive changes in the neighborhood, (2) estoppel, (3) acquiescence, (4) unclean hands, (5) latches.
139
What are the recipricol negative servitudes?
When land is subdivided into parcels under a common development scheme with only some parcels having negative servitudes, these restrictions may be impliedly binding against all subdivided parcels.
140
When is a reciprocal negative servitude created through implication?
(1) Common scheme and (2) Notice
141
What are the requirements for adverse possession?
(1) Continuous for the statutory period, (2) open and notorious, (3) actual and exclusive, and (4) hostile.
142
What is the effect of adverse possession on restriction covenants?
If adverse use violated the covenant then it's void, but if complied covenant will run with the land.
143
What is the effect of an adverse possessor leasing a portion of the land?
It does not remove possession.
144
When may an adversely possessed land be marketable?
After the adverse possessor brings a successful action to quiet title.
145
What is the rule on tacking & concurrent owners for adverse possessors?
Multiple adverse possessors may tack their terms if (1) successive, and (2) privity.
146
What is the rule for possession on concurrent owners?
A co-tenant may not adversely possess each other's interests unless an ouster has occurred. The statutory period begins once exclusion begins.
147
What is required for a land sale contract to be valid?
(1) In writing, (2) signed by the parties to be bound, and (3) articulate essential terms.
148
What is the exception to the SOF requirement for land sale contracts?
At least two of the following: (1) Pays all or part of the purchase price, (2) takes possession of the purchase price, and (3) makes substantial improvements.
149
What is the land sale process?
(1) Contract to buy or sell, (2) escrow period where funds are transferred through escrow, (3) at closing the escrow competition to deed delivery, and (4) conveyance where upon successful deed transfers to the new owner.
150
What is the doctrine of equitable conversion?
During escrow after a land sale contract, but before delivery of the deed, the seller's estate own the PERSONAL property, but the REAL property belongs to the buyer estate.
151
Who bears the risk of loss if the property is destroyed before closing?
The buyer holds the risk even if there is no possession, however they may contract out of the risk.
152
What is the effect of a death of a party?
If either party dies before closing the rights to the contract pass according to interests held. (1) Seller's interest passes as personal property, and (2) buyer's interest passes as real property.
153
What are the implied promises in land sale contracts?
(1) Promise to provide a marketable title, (2) promise to disclose & make no material false statements.
154
What renders a title unmarketable?
(1) Acquired by adverse possession, (2) encumbered by interests but the seller has the right to satisfy outstanding mortgages or liens; (3) zoning ordinance violations existing at the sale.
155
What must a seller do in making representations?
(1) Seller must not materially misrepresent facts or make false statements concerning the property, (2) seller has a duty to disclose known, latent material defects, which may be disclaimed.
156
What are the warranties on a new property?
Subject to an implied warranty of quality in construction.
157
What is the remedy for breach in marketable title?
(1) Buyer must notify seller before closing & give an opportunity to cure, (2) if seller fails to cure the buyer may rescind, file for damages, demand specific performance, or quiet title, (3) failure to notify seller before closing merges contract with deed, no seller liability.
158
What is a deed?
An instrument that passes legal title from the grantor to the grantee, usually seller and buyer.
159
What is required for a deed?
(1) Lawful execution and (2) delivery.
160
What is required for the lawful execution of a deed?
(1) legal description of the property, (2) identity of parties, (3) signature of grantor.
161
What is required for deed delivery?
(1) Intent by grantor to be bound, (2) acceptance by grantee or (3) put outside the grantor's control.
162
What is the effect of delivery of a deed?
Title passes upon effective delivery and cannot be rescinded unless delivered with conditions or through a third party.
163
What are the types of deeds?
(1) General warranty, (2) special warranty, and (3) quitclaim.
164
What is a general warranty deed?
(1) Present covenants: (a) seisin, (b) right to convey, (c) no encumbrances,
(2) Future covenants: (a) quiet enjoyment, (b) warranty, (c) further assurances.
165
What is a special property warranty?
Grantor assures (1) land has not been conveyed to another, (2) no encumbrances attached while grantor owned property.
166
What is a quitclaim?
A promise to transfer an interest and does not include any covenants about title.
167
What is a BFP?
Bona Fide Purchaser, generally for Value.
168
What is the scope of a BFP?
Cash buyers and mortgagees for value, but not donees, heirs, or devisees.
169
What are the types of notice for a buyer?
(1) Actual, (2) Inquiry, and (3) Record.
170
What are inquiry and record notice?
Inquiry notice is what the land would reveal upon inspection and record notice is knowledge from a routine title search.
171
What are the types of recording statutes?
(1) Notice Statutes, (2) Race-notice statutes, (3) Race statutes.
172
What is a notice statute?
Subsequent BFPs always prevail regardless of who recorded first. E.g. "No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof unless it is recorded”
173
What is a race-notice statute?
First BFP to record prevails. E.g. “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded”
174
What is a race statute?
First grantee to record prevails regardless of whether buyer is a BFP. e.g. “No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded”
175
What is the shelter rule?
Any type of grantee from a BFP will prevail over any interest the BFP would have prevailed against, even if grantee had actual notice of a prior conveyance.
176
What is a wild deed?
A recorded deed unconnected to the chain of title.
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What is the effect of a wild deed on notice?
A wild deed is insufficient for record notice. Wild deeds cannot exist in a tact index system.
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What is a tract index system?
A document that summarizes real property transactions at the recorder of deeds. Practiced by NE, ND, OK, SD, MN, MT, OH, and WI.
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What is Estoppel by deed?
No grantor (1) who does not have title to land, (2) but grants title, (3) may acquire title to that land for themselves, and (4) any attempt will automatically pass to the grantee.
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What are the intermediary parties in a sale land?
(1) Seller's agent or listing broker, (2) Buyer's agent or selling broker.
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What are the rights & duties of the seller's agent?
(1) Fiduciary duty to the seller (2) earns commission from sale of property.
182
What are the rights & duties of the buyer's agent according to common law v modern?
Common low: fiduciary duty to seller only.
Modern: separate agreement between buyer & buyer's agent with no fiduciary duty to seller, and receives portion of listing broker's commission.
183
What is the duty to disclose?
All agents must disclose material information about which they have actual knowledge.
184
What is a mortgage?
A security interest in land that serves as collateral for the repayment of a loan.
185
What are the contract requirements for a mortgage?
(1) Must be in writing, and (2) signed by both the mortgagor (borrower) and the mortgagee (creditor), and (3) describing with particularity the property leveraged as security.
186
What are the types of mortgage theories?
(1) Lien, (2) Title, and (3) Intermediary.
187
What is the lien theory of mortgage?
The creditor has an interest attached to the land which can be exercised only upon default. In a lien theory, a mortgagee or lender has the right to bring an action of foreclosure as a means of recovering the delinquent debt.
188
What is the title theory?
The mortgagee-creditor has title to the property until the borrower-mortgagor pays the loan. [Minority]
189
What is the intermediate theory in mortgages?
Mortgagor-borrower has title and right to posses until default, if default mortgagee-creditor automatically gains title & right to possession
190
What is an equitable mortgage?
When a debtor gives the creditor a deed to the land as collateral for the debt.
191
What is an acceleration clause?
A loan contract term requiring entire payment under certain conditions.
192
What is a mortgagor transfer?
(1) When a mortgagor sells property and (2) the mortgage remains on the land assumed by the grantee, (3) but original mortgagor remains a secondary liable surety.
193
How can a mortgagee-creditor transfer interest?
(1) Endorse mortgage note & deliver to transferee, (2) executing a separate agreement of the mortgage interest.
194
What is a "holder in due course"?
(1) A lender takes a mortgage note free of any personal defenses a mortgagor could have raised against the original mortgagor [e.g. lack of consideration or fraudulent inducement, (2) but still subject to real defenses [e.g. duress or outright fraud]
195
What is required for holder in due course?
(1) Negotiable note payable to mortgagee, (2) signed by named mortgagee, (3) delivered to transferee, and (4) transferee must have good faith & pay value.
196
What is foreclosure?
(1) Upon default, (2) a judicial action, (3) selling the property to satisfy the debt in whole or in part, and (4) includes all junior interests as necessary parties.
197
What is a deficiency judgment?
If the debt exceeds the sale proceeds a mortgagee-creditor may file suit against mortgagor-debtor for remaining debt balance.
198
What is the effect of a foreclosure in excess of the debt?
Proceeds are paid out in order of lien priority with the final remainder going to the mortgagor-debtor.
199
What is redemption in equity?
At any time prior to judicial foreclosure the mortgagor-debtor may redeem the property by paying the debt.
200
When do redemption rights apply?
If there is an equitable mortgage where creditor appears to hold legal title via deed.
201
What is the statutory right of redemption?
For a specific period a mortgagor-debtor may buy back the property after foreclosure sale.
202
What is a deed in lieu of foreclosure?
To avoid foreclosure a mortgagor-debtor may agree to give mortgagee-creditor the deed to the property. Valid unless unfair and unreasonable under the circumstances.
203
What is the priority of creditors on a mortgaged property?
(1) PMM [purchase money mortgages] are superior, (2) by agreement between creditors, (3) otherwise by time of record or action.
204
What is the effect of foreclosure by superior interests upon junior interests?
Upon foreclosure junior interests are terminated and they must seek a deficiency judgment, but have no interest in the property.
205
What is the effect of foreclosure by junior interests upon superior interests?
(1) Senior interests are unaffected by junior interest foreclosures because the mortgage is attached to the land and buyer of foreclosed property takes it subject to those interests. (2) Buyer is not personally liable, but senior interests may bring another forecloser if mortgage is not paid.
206
What are the types of land support?
(1) Lateral and (2) subjacent.
207
What is lateral support?
(1) land owners have right to natural state of adjoining land; (2) landowners may be strictly liable for excavations causing damage to adjacent land.
208
What is subjacent support?
(1) Underground structures must support surface & structures existing when subjacent estates were created, (2) subjacent owners are strictly liable for failure to support surface land and pre-existing structures, (3) but negligence for later structures.
209
What are the types of water rights?
(1) Riparian doctrine and (2) prior appropriation doctrine.
210
What are riparian rights?
Water belongs to those who own land bordering watercourses and natural residential uses prevail over commercial artificial uses.
211
What are the types of riparian rights?
(1) Reasonable use and (2) natural flow.
212
What is the reasonable use riparian right?
Landowners share rights to reasonable use and are liable to other owners if it unreasonably interferes with the other owner's use upon a balance of utility of use v. gravity of harm. [Majority]
213
What is the natural flow theory?
Riparian owners may be enjoined for any use resulting in a substantial material reduction in other's water quantity, quality, or velocity. Includes natural drainage. [minority]
214
What rights & liailities are associated surface water?
For surface water from rain, springs, or other runoff generally gives full rights, but may create liable if it interrupts flow in a way that impacts other owners.
215
What is common enemy theory for dealing with water?
Owners of surface water may do anything to change drainage or combat flow so long as it does not cause unnecessary to damage to the other person's land.
216
What are limitations on zoning?
Zoning ordinances must be reasonably related to the public welfare, not too restrictive, and not racially discriminatory.
217
What are variances?
Landowners may get permission to be exempt or vary from strict adherence to a zoning ordinance.
218
When may a variance be granted?
(1) Undue hardship, and (2) Variance will not be contrary to public welfare.
219
What is nonconforming use?
(1) Previously lawful property use (2) deemed nonconforming (3) from new zoning.
220
What must the government do to stop use all at once of property?
Pay proper compensation.
221
What is amortization?
When a government pays a landowner over time until the landowner recoups the value of nonconforming use.
222
What is a special use permit?
Some property uses require an additional permit even if zoning generally allows that kind of activity.
223
What are "exactions" as part of an approval for development?
(1) A required payment or gift of property from a developer (2) designed to offset development demands on public services, and (3) as a condition of government approval of the development.
224
What are the requirements for an exaction?
Exactions are presumed unconstitutional unless (1) Nexus rationally related between exaction sought and burden, (2) Proportionality in nature and scope to the impact of development.
225
What is the jurisdiction of real property litigation?
Real property is subject to law of jurisdiction it is in, contracts are governed by law of place where property is situated unless property is incidental to the contract and the contract is of a personal nature.
226
If a life estate holder gets a mortgage can the remainder be liable?
No, a fee simple conveyance after a life estate does not attach a mortgage. No remaindermen liable for any act injuring their interests.
