property Flashcards
(20 cards)
common-law doctrine of caveat emptor
provides that a seller has no duty to disclose property defects to the buyer unless otherwise agreed.
applies when there is no applicable stat giving seller duty to disclose physical defects
merger
all obligations as to title contained within the land-sale contract merge into the deed once it is delivered to and accepted by the buyer. This doctrine does not relate to issues having to do with the physical condition of the property.
valid deed requirements
(1) the identity of the grantor and the grantee,
(2) in writing
(3) words of transfer,
(4) a description of the property interest being transferred, and
(5) the grantor’s signature.
deed signature requirements
To be valid, a deed must be signed by the grantor. The signature can be made by the principal-grantor’s agent if the agent had authority to sign on the principal-grantor’s behalf.
duty to disclose unreasonably dangerous natural or artificial conditions
A seller of real property has a duty to disclose to a buyer unreasonably dangerous natural or artificial conditions on the land if:
(1) the condition exists at the time of the sale
(2) the seller knows or has reason to know of the condition and its unreasonable risk to persons on the land
(3) the buyer does not know or have reason to know of the condition or risk and
(4) the seller has reason to believe that the buyer would not discover the condition or realize its risk.
rule in Shelley’s case
Under the Rule in Shelley’s Case, a present interest in the grantee and contingent remainders in the grantee’s heirs became a fee simple interest in the grantee.
constructive eviction
Sample Answer
Your Answer
Sample Answer
- The issue is whether the tenant can raise the excuse of constructive eviction. (25%)
When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time.
LL duty to repair
The majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In contrast, courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases.
termination of a term lease
Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.
LL mitigation
When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re-rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency. The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease.
Furthermore, the doctrine of anticipatory breach does not apply to leases.
easement merger
An easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate. The easement is said to “merge” into the title. The merger of property interests results in the extinguishment of the property right.
implied easement
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity).
order of payment from foreclosure
When multiple interests must be paid out of the proceeds of a foreclosure sale, generally, the earliest mortgage placed on the property has priority over the other interests. Further, obligatory payments under a senior future-advances mortgage paid out after a junior lender remits its loan amount and records its lien have priority over amounts loaned by the junior lender.
JTROS
A joint tenancy exists when at least two people own property with the right of survivorship. In addition to the right of survivorship, each joint tenant must have the four unities: the right to possess or use the property and equal interests which were created at the same time and in the same instrument. At death, a joint tenant’s property passes automatically to the remaining joint tenants due to the right of survivorship.
severance of JTROS
The severance of joint tenancy may occur in several ways and converts it into a tenancy in common. A joint tenant may grant a mortgage in his joint tenancy interest. In title theory states, which is the minority of states, the granting of a mortgage constitutes a transfer of title. A transfer of title severs the joint tenancy and converts it into a tenancy in common.
There is a split among jurisdictions with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.
Tenancy in common
A tenancy in common exists when two or more co-owners have an equal right to possess property, but do not have a right of survivorship. In that case, each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest. Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants.
accounting for co-tenants
A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds. Third-party rents are divided based on the ownership interest of each tenant.
warranty of suitability
The warranty of suitability applies to new homes. It states that within a reasonable time after the construction of the new home, the buyer of the home can sue the builder for defects. It implies that the home is built to certain standards of workmanship and is suitable for living. There is a split among jurisdictions regarding its application. Some states merely required that adequate materials be used and good workmanship. Other states require that defects not substantially affect the buyer’s ability to live in the residence. This warranty extends to subsequent purchasers of the new home, so long as the suit is brought within a reasonable time. The warranty is implied against commercial builders.
assuming a mortgage
Unless the lender agrees to release the borrower from liability for the loan, the borrower remains personally liable on the loan obligation after the mortgaged property is transferred. If a deed is silent or ambiguous as to the buyer’s liability, then the buyer takes title to the property subject to the mortgage and is not personally liable upon default. But although the buyer has title, which allows him to possess the property, the property is still subject to a potential foreclosure action upon default. Then, only the seller remains personally liable for a deficiency.
quitclaim deed
A quitclaim deed contains no covenants against encumbrances and in such cases, the seller is not liable for damages. Instead, the grantee of a quitclaim deed receives no better title than what the grantor possessed.
