Property Flashcards
(36 cards)
Language to create Fee Simple Determinable v. Fee Simple Subject to Executory Interest
Determinable: words of duration (so long as, during, while)
Executory Interest: to X so long as (or “but if”)… to Y
Obligations and Prohibitions on Life-Tenant
Responsible for ordinary expenses and taxes during their lifetime.
Prohibited from committing waste (decreasing property value).
How does interest in Tenancy in Common, Joint Tenancy, or Tenancy by Entirety pass?
By bequest or intestacy.
Severance of Joint Tenancy
- Severed if one JT unilaterally transfers ownership interest; then hold as tenants in common.
- Where more than two JT and one unilaterally transfers, joint tenancy remains among other JTs and transferee is tenant in common.
- Severed in Title Theory Jurisdiction where one JT mortgages interest; but not in Lien Theory Jurisdiction.
- Severed in most states if JT leases property.
Co-tenants and Rent or Repairs
Entitled to fair share of rent from third party.
Entitled to reimbursement for cost of necessary repairs, unless wrongful ouster.
Creation and Termination of Periodic Tenancy
Created by
- express agreement
- implication (rent paid at specific periods)
or
- law (tenant-for-years remains after termination or lease is invalid)
Termination requires written notice at least a full period in advance (six months if year-to-year lease).
Termination of Tenancy at Will
Notice plus reasonable time to quit the premises. (Some states do not require notice.)
Rights of tenant who is constructively evicted
Terminate the lease
Seek damages
Avoid rent during period of CE
LL duties: residential v. commercial lease
Residential lease:
- repair common areas
- warn of latent defects that create risk of serious harm that LL knows or should know of
Commercial lease:
- no duty to repair unless in lease agreement
LL’s Consent for Assignment
Must obtain consent if required by lease.
But if LL accepts rent from assignee, LL waives right to enforce provision prohibiting assignment.
Types of Notice re: Real Property
- Actual - knowledge
- Constructive - discoverable in property records
- Inquiry - would be revealed by reasonable inspection of property
What is the Trade Fixture Exception?
An item attached to property for a tenant’s trade or business is NOT a fixture UNLESS removal causes substantial damage to the property.
It may become a fixture if not removed before end of the lease term.
What is Aggregation/Tacking?
Allows adverse possessors in privity to aggregate years spent possessing property to meet statutory period.
Also applies to statutory period’s limitation on suit by landowner.
Privity exists when land is transferred voluntarily (deed or bequest).
Breaches and Damages: Warranty of Marketable Title
- If seller cannot convey marketable title at closing, buyer may withdraw without penalty.
- Buyer may waive defect; seller cannot cancel contract if so.
- Damages measured by reduced value of land. Courts are divided on whether can recover if encumbrance is known or obvious (whether there is notice).
Risk of Loss - Sale of Land
Most states: transfers to buyer upon signing contract.
Minority: seller bears, unless buyer has possession of or title to property at time.
Breach of Home Builder’s Implied Warrant
Buyer can recover damages discovered within reasonable time for
- defective construction
or
- construction not performed in workmanlike manner (within accepted industry norms)
Grantor’s Intent to Convey Land
Will be found if any words indicate intent to immediately convey (grant, convey, give, transfer).
Will NOT be found if grantor
- expressly reserves right to revoke deed
or
- gives instruction to only deliver deed upon own death.
Effect of Oral Conditions on Deed
If deed is unconditional in its face and is given to grantee, any additional conditions are invalid.
If same deed given to third party (held in escrow), additional conditions create a conditional delivery.
Remote Grantee Enforcement of Present Covenants of General Warranty Deed
Common law: not enforceable by remote grantee
Some states: enforceable if remote grantee did not have notice of encumbrance.
What is Chain of Title?
It shows all transfers of a piece of land. There are two indexes: one organized by name of grantor, and one by name of grantee.
Two Types of Payments under Future-Advance Mortgage
Obligatory: lender has duty to advance (no discretion); all payments are part of original loan and take priority over later liens
Optional: made at lender’s discretion; do not have priority over liens recorded before payment is made
Liability under Transfer Subject to Mortgage
Buyer is not personally liable on mortgage, BUT mortgage remains on the land and lender may foreclose.
Foreclosure Impact on Other Mortgages and Debt
Extinguishes all JUNIOR mortgages; no impact on SENIOR (prior) mortgages.
Debts paid by foreclosure sale in order:
1. Attorney fees and expenses re: sale.
2. Debts owed to lender.
3. Any remaining amount to borrower.
If funds insufficient to pay debts to lender, lender may seek deficiency judgment against borrower for remaining amount.
Previous Non-Conforming Use
Allows landowner to continue using land (in previously legal way) in violation of subsequently enacted zoning law.
Non-conforming use MUST be continuous.
Allowed to make insubstantial changes and reasonable alterations to repair property.
Not allowed to make substantial changes that alter, enlarge, or extend non-conforming use.
