Real Property Flashcards by Tanner Garner

Can a LL restrict cotenants’ ability to transfer their rights under the lease with an express lease provision?

Yes - and only the LL, as a beneficiary, may enforce the provision, not a co-tenant

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Subrogation allows a third party to take a senior mortgage’s priority when the third party:

(1) fully pays off the senior mortgage, and

(2) has no actual knowledge of junior interests

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When a mortgagor transfers mortgaged property to someone who assumes the mortgage:

The transferee becomes primarily liable for the mortgage and the mortgagor becomes secondarily liable as a surety

If the mortgagor pays the mortgage debt after the transferee defaults, mortgagor can seek reimbursement

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In a race-notice jurisdiction, a bona fide purchasor who:

(1) lacks notice, and
(2) records first will prevail

*A BFP cannot rely on a forged or altered document to establish priority since that document is void

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The equitable right of redemption allows a debtor to avoid foreclosure by:

Paying the FULL amount of the outstanding debt

*This means that a tenant can only redeem co-owned property by paying the amount owed by ALL tenants

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A subsequent assignment of the same right:

revokes any prior revocable assignment (gift)

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Seller of residential property can disclaim the duty to disclose known material defects if:

(1) the disclaimer is clearly and specifically stated in the sales contract, and
(2) the seller has not fraudulently misrepresented or concealed the condition of the property

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“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 recording statute

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Fixtures built on real property and items incorporated into structure become part of realty, but can be removed if:

(1) seller reserves the right to remove fixtures in the sale contract, or
(2) leased property can be restored to former condition without damage in reasonable time

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Distribution of Foreclosure Proceeds

Process (attorney), senior mortgage, junior mortgage

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Tenants have a duty to:

Pay rent, avoid waste, and make repairs in non-residential leases

Absolute duty to repair clause in residential least will likely be void

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A co-tenant can only compel other co-tenants to share expenses for repairs if:

(i) the repairs are necessary, and
(ii) the co-tenant seeks accounting or partition

*No right to reimbursement for improvements or overuse

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Fee simple determinable

Limited by specific durational language (so long as, while, during, until)

Automatically terminates upon happening of stated event
Future interest: grantor retains possibility of reverter

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FS subject to condition subsequent

Present fee that is limited by specific conditional language (upon condition that, provided that, but if, if it happens that)
- Future interest: right of entry

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A life estate holder’s (life tenant) rights/duties include:

Right to possess, right to collect rent, lease/sell/mortgage, duty not to commit waste, obligation to pay all ordinary taxes on the land

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Reversion

Held by grantor who transfers LE without conveying the remaining FI to a third party

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Possibility of Reverter

FI retained by grantor when FSD is conveyed

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Right of reentry

FI retained by grantor after a FSSCS is granted

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Remainder

FI that becomes possessory upon the natural expiration of a prior estate that is created in the same conveyance in which the remainder is created

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If transferee assumes the mortgage, then:

then transferee becomes primarily liable and borrower becomes secondarily liable

*IF borrower makes payments, she can seek reimbursement from transferee

In a general warranty deed, what are the present and future covenants?

Present:

(1) Seisin - grantor owns land described in deed
(2) Right to convey - grantor has right to transfer title
(3) Against encumbrances - no undeclared encumbrances against land

Future:

(1) Quiet enjoyment - grantee not disturbed in possession by third party
(2) General warranty - grantor will defend against third party claim
(3) Further assurances - grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect

What are the requirements of a real covenant?

(1) Writing,
(2) Intent,
(3) touch and concern (benefit or burden must affect promisee/promisor as owners of land),
(4) Notice (for the burden only, must be constructive or actual),
(5) Privity

Modern trend requires no privity
A subsequent PURCHASER of property who does not have notice of a burdening covenant is not bound by it if protected by the recording act

Equitable servitude

Covenants about land use that are enforced by injunction (no privity required)

(i) writing,
(ii) intent for restriction to be enforceable by and against successors,
(iii) must touch/concern, and
(iv) if the servitude is to be enforced against a purchaser, the purchaser must have notice

Pursuant to the statute of frauds, a land sales contract must:

(1) be in writing,
(2) signed by the party to be charged,
(3) and contain all essential terms (parties, property description, terms of price/payment)

Part Performance SOF Exception

SOF requirements are excepted if buyer takes possession of land, buyer remits all or part of purchase price, and/or buyer makes substantial improvements (at least two of the three acts must be present)

The doctrine of equitable conversion places the risk of loss on:

the buyer unless the jurisdiction follows the UVPRA

Easements can be terminated by

Release, merger, severance, abandonment, destruction, prescription, estoppel

"No conveyance or mortgage of real property shall be good against subsequent purchasers for for value and without notice unless the same be recorded according to law"

Notice statute BFP (purchaser for value without notice) of prior interest prevails over prior grantee who failed to record

"No conveyance/mortgage of real property good against subsequent BFP unless first recorded by law"

Race-notice statute Subsequent BFP protected only if he takes without notice and is first to record

Implied warranty of fitness or suitability is:

implied with the sale of every new home

Equity of Redemption

After default but before foreclosure sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest

Pre-foreclosure rights in lien and title theory states

Lien Theory - mortgagee cannot take possession before foreclosure Title Theory - mortgagee theoretically entitled to possession at any time (but typically cannot take possession until default by mortgage terms)

Must the owner of collateral subject to a security interest ensure, in good faith, that the value of the security interest does not decrease?

YES

An inter vivos transfer by a joint tenant of his property interest:

Severs the joint tenancy, which converts it into a tenancy in common *If there are more than two joint tenants, then a a severance does not automatically affect the joint tenancy of all joint tenants

Once a developer has relinquished control:

the HOA has the power to terminate without penalty any contract or lease between the association and the developer, or an affiliate of the developer

A profit is a:

nonpossessory right to enter another's land and remove specific natural resources *Analyzed similar to easements and cannot be created by necessity

Doctrine of Retaliatory Eviction

LL may not evict a residential tenant as retaliation for the tenant's reporting a housing code violation to the appropriate authorities OR for refusing to pay rent when the LL breaches the warranty of habitability

The hardship for which a variance is sought may not:

be created by the owner who seeks the variance

Rule of Convenience

Rule of interpretation which provides that membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift ``` ***DOES NOT APPLY when grantor specifies class should remain open. EX: "regardless of when born" ```

Recovery on Mortgage W/O Acceleration Clause

Although a mortgagee may bring a foreclosure action whenever a mortgage obligation whenever a mortgage obligation is in default, the mortgagee is only entitled to collect th amount of the obligation that is currently due and owing unless the mortgage contains an acceleration clause

Implied Reciprocal Servitude

An implied reciprocal servitude must meet the following requirements to be enforceable: (i) there must be intent to create a servitude on all real property interests (common scheme), (ii) the servitude must be negative (a promise to refrain from doing something), and (iii) the party against whom the enforcement of the servitude is sought must have actual, record, or inquiry notice

Generally, zoning ordinance must make provisions for:

property with an existing nonconforming use - can be lost in various ways, including enlargement of the nonconforming use

Anti-Lapse Statute prevents:

gifts from lapsing only when those gifts were given to a FAMILY member within a certain statutory degree

Although the CL RAP applies to options to purchase real property, it does not apply to:

An option to purchase the property that is held by a CURRENT leasehold tenant

Once the location of an express easement is fixed, under the majority rule:

The owner of the servient estate may not unilaterally change the location of the easement Servient estate: land that is subject to an easement that benefits another parcel (dominant estate is the benefited parcel

LL Duty to Mitigate

Under the majority rule, LL who is aware that a tenant has abandoned her leasehold interest is under a duty to mitigate damages by making reasonable efforts to re-rent the premises *Failure to do so reduces recovery

A mortgagor may waive the right to redeem after the mortgage has been executed in exchange for:

good and valuable consideration

In order for a property owner who is in the process of building a structure when a zoning ordinance is adopted that prohibits such a structure to convince a court that his right to build has vested:

The owner must have acquired a building permit prior to the date that the zoning ordinance took effect

Equity of Redemption

After default but before mortgage sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest - Cannot clog this right through circumventing