Real Property Flashcards
1
Q
How can property be transferred (alienated)?
A
- sale
- gift
- devise
- intestate
2
Q
How is ownership interest divided and what is the key distinction?
A
Ownership interests divided in time between present and future interests.
Key distinction of timing: posession
3
Q
Fee Simple Absolute
A
Absolute property ownership of infinite duration
- default/presumptive grant
- no future interest associated with a fee simple
4
Q
Defeasible Fees
(and the three types)
A
Can last forever but may be terminated by the occurance of an event.
1. Fee simple determinable
2. Fee simple subject to condition subsequent
3. Fee simple subject to executory interest
Freely alienable by owner and upon death, devisable/descendible
5
Q
Fee Simple Determinable
A
Present fee simple estate that is limited by specific durational language that terminates automatically upon the happening of the stated event.
“so long as”
“while”
“during”
6
Q
Fee Simple Subject to Condition Subsequent
A
Present fee simple that is limited in duration by specific conditional language and upon the occurrence of the event, the grantor has the right to terminate this estate. (termination not automatic)
“but if”
“provided that”
“on condition that”
*Courts have a preference for this over FS determinable.
7
Q
Fee Simple Subject to an Executory Interest
A
Present fee simple that is limited by specific conditional language that will end upon the happening of an event and the future interest will vest in a third party (not grantor).
*automatically triggers passage to the third party
8
Q
Possibility of Reverter
A
Future interest held by a grantor following a fee simple determinable.
Interest vests automatically after the durational period ends.
9
Q
Right of Entry
A
Future interest held by the grantor following a fee simple subject to condition subsequent.
Does not vest automatically; it must be reclaimed.
10
Q
Executory Interest
A
Future interest that will divest (cut short) an earlier interest held by a third party (a prior vested interest) upon the occurrence of a specified condition
Title automatically passes to third party.
2 types:
Springing executory interest
Shifting executory interest
11
Q
Springing Executory Interest
A
Divests the grantor
12
Q
Shifting executory interest
A
Divests a prior grantee
- estate shifts from one grantee to another on the happening of the condition
13
Q
Life Estate
A
Present estate that is limited in duration by a life.
“for life”
Ends naturally when the measuring life ends.
Transferable but cannot be passed by devise or intestacy.
14
Q
Reversion
A
Future interest following a life estate: If possession of the land goes back to the grantor after the life estate ends, the the grantor retains a reversion
*grantor takes property in fee simple absolute
15
Q
Remainder
A
Future interests following a life estate: If possession of the land goes to a third party (transferee) after the life estate ends, then the third party takes a remainder.
*third party takes property in fee simple absolute
Can be vested or contingent.
16
Q
Vested Remainder
A
- Given to an ascertained grantee (someone who can be identified), AND
- Not subject to a condition (no condition that must be satisfied in order for the interest to vest)
*if either condition not met, it is a contingent remainder
Can be vested remainder subject to open/partial divestment or vested remainder subject to complete divestment.
17
Q
Vested Remainder Subject to Open
A
- Vested remainder in a class gift, AND
- Full class membership is unknown
*RAP applies to a Vested Remainder Subject to Open–Rule of Convenience is used to avoid application of RAP to class gift.
18
Q
Rule of Convenience
A
A class closing mechanism to avoid application of RAP to a class gift.
If grant does not have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession.
*an interpretive rule
19
Q
Dotrine of Worthier Title
A
Prevents a grantor from creating a remainder in the grantor’s heirs.
*applies in a minority of jurisdictions to an inter vivos conveyance
20
Q
Rule in Shelley’s Case
A
Prevents a grantor from creating a remainder in the grantor’s heirs. It uses the doctrine of merger to create a fee simple.
*most jurisdictions have abolished – grantee’s heirs take future interest as conveyed in the deed
e.g., “to Alice for life, then to Alice’s heirs”
Under the Rule in Shelley’s Case, Alice has a fee simple interest.
21
Q
When does waste come into play?
3 types of waste?
A
Comes into play when more than one party has an interest in the same piece of real property.
- affirmative
- permissive
- ameliorative
22
Q
Affirmative Waste
A
waste caused by voluntary conoduct which causes a decrease in value
23
Q
Permissive Waste
A
Waste caused by neglect toward the property which causes a decrease in value
24
Q
Ameliorative Waste
A
Special situation where a life tenant or other person in possession changes the value of the property and actually increases the value of the property.
25
Rule Against Perpetuities
Under RAP, specific future interests are valid only if they must vest or fail by the end of a life + 21 years ( 2 generations)
Purpose is to prevent **remote vesting** and tests for certainty and operates like a SOL for contingent future interests
26
What kind of interests does the Rule Against Perpetuities apply to?
1. Contingent remainders
2. Executory interests
3. Class gifts (subject to open), if not closed by rule of convenience
*does not apply to vested remainders unless subject to open
27
# Rule against Perpetuities
Relevant Life and Validating Life
& Requirements
Relevant Life: person who affects vesting, usually mentioned or implied by the grant (e.g., prior life tenant, the parent whose conveyance is made to a child)
Validating life: Person who tells us whether or not the interest vests within the perpetutities period (lifetime plus 21 years)
1. must have been alive when the interests were created
2. can validate her own interest
- if no validating life, then the interest is no good and we strike it from the grant.
- if there is validating life, the interest is good.
28
Special Rule pertaining to RAP and Class Gifts
If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class -- bad to one, bad as to all.
29
Exceptions to RAP
1. Charities - RAP does not apply to a gift from one charity to another charity
2. Options - RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property, nor does it apply to an option (or right of first refusal) in a commercial transaction
30
# RAP issues
"Wait and See" Approach
Traditional RAP softened by Uniform Statutory Rule Against Perpetuities
- the most common modern approach, wait and see if an interest subject to RAP vests within the perpetuities period
- some of these states changed vesting period to 90 days
depends on jurisdiction, bar exam tests traditional RAP
31
# RAP issues
Cy Pres
An equitable doctrine (borrowed from the law of tursts) that allows a court to reform a transfer to avoid RAP
32
Concurrent Estates & the 3 types
Definition: Ownership or possession of real property by two or more persons simultaneously.
Basic rule: Concurrent owners each have right to use or possess the whole of the property.
Concurrent owners can contract out of this basic rule.
1. Tenancy in common
2. Joint tenancy
3. Tenancy by the entirety (minority)
33
Tenancy in Common
Concurrent owners have separate but undivided interests in the property.
There is no right of survivorship - each co-tenant can transfer the properly freely at death as well as during life.
Default concurrent interest - any conveyance to more than one person is presumed to be a tenancy in common.
34
Joint Tenancy
& how is it created
& the Four Unities required to create
The defining characteristic is the right of survivorship, whereby the surviving joint tenants automatically take the deceased tenant's interest.
1. Grantor must make a clear expression of intent, AND
2. Must have survivorship language (e.g., "as joint tenants **with a right of survivorship**)
**4 Unities: PITT**
1. Possession - every joint tenant has an equal right to possess the whole of the property
2. Interest - Joint tenants must have an equal share of the same type of interest
3. Time - Joint tenants must receive their interests at the same time
4. Title - Joint tenants must receive their interests in the same instrument of title
35
Common situations where one of the 4 Unities to a Joint Tenancy is severed and joint tenancy is terminated and turned into a tenancy in common?
**Inter vivos transfers**- transfer during life will sever the right of survivorship and convert the estate into a tenancy in common
**Mortgages**- a joint tenant grants a mortgage interest in the joint tenancy to a creditor
- majority - follows a lien theory - mortgage is treated as a liena nd does not destroy the joint tenancy
- minority - title theory - mortgage severs title and tenancy between the joint tenants and the creditor is converted into a tenancy in common
**Leases** - a joint tenant leases her share in the property to a tenant
- some jurisdictions hold that lease severs the joint tenancy
- other jurisdictions treate lease as a temporary suspension of the joint tenancy
36
Tenancy by the Entirety
Joint tenancy between married peoplel, has a right of survivorship, tenants by entirety cannot alienate/encumber shares without consent of spouse
37
General Rule re: Possession and Use in concurrent estates
Each co-tenant has a right to possess all of the property, regardless of their share/type of co-tenancy
(unless agreed otherwise)
38
# Concurrent Estates
Ouster
Co-tenant in possession denies another co-tenant access to the property
Remedies for ousted tenant:
- get an injunction granting access to the property, and/or
- recover damages for the value of the use while the co-tenant was unable to access the property
*have to ask for access before you can claim ouster
39
# Concurrent Estates
Third party rents
Rent received from a third party's ownership of the property (minus operating expenses) are divided based on ownership interests of each co-tenant
Anna 10% interest
Ben 90% interest
Carmen rents for property for $1000 a month
Anna entitled to $100
Ben entitled to $900
40
# Concurrent Estates
Operating Expenses
Necessary charges, such as taxes or mortgage payments. Divided based on ownership interests of each co-tenant. A co-tenant can collect contribution from other co-tenants for payments in excess of her share of the operating expenses.
41
# Concurrent Estates
Repairs
no right to reimbursement from co-tenants for necessary repairs
can get credit in partition action though
42
# Concurrent Estates
Improvements
no right to reimburse
can get credit in partition action
43
# Concurrent Estates
Partition Action
a unilateral right available to all holders of a tenancy in common or joint tenancy
Court will divide the property into distinct portions
- partition in kind (physical division) - preferred by courts
- partition by sale - proceeds from sale divided among co-tenants based on their ownership interests
*Courts will order a partition by sale if physical partition is not practical or not fair.
Co-tenants can also agree not to partition as long as
1. agreement is clear AND
2. time limit is reasonable
44
Fair Housing Act
FHA prohibits:
- discrimination in the sale, rental, and financing of dwellings.
- advertising that states a discriminatory preference (applies more broadly)
- requiring different rents
- falsely denying that a unit is available
- providing different services to facilities (exception: disability acc)
FHA allows for both intent (disparate treatment) and effect (disparate impact) cases
Prohibited behavior must have a nexus to the protected basis
45
Who's covered under the FHA?
multi-family residential housing
46
Who's not covered by the FHA?
- single family housing that is sold or rented without a broker
- owner-occupied buildings with four or fewer living units ("Ms. Murphy's boarding house")
- Religious organizations and private clubs
Top two can violate FHA through discriminatory advertising though but religious org/private clubs can list their restrictions in advertising.
47
FHA protected traits
race, color, religion, national origin, sex, disability, and familial status
*sex has now been interpreted to include sexual orientation and gender identity
*familial status = families w/ children under 18 or someone who is pregnant [senior living exempted]
*disability provision mandates reasonable accommodations for persons with disabilities
48
# Conflict of Law
In cases about property, what is the controlling law based upon?
where the property is located (law of the situs)
this is the baseline choice of law rule in a property dispute that involves more than one state
Doesn't apply when:
- instrument identifies/designates an applicable jurisdiction
- marriage, with respect to classifying property as marital/separate -- the domicile of the party may override the law of the situs
- mortgage cases where mortgate documents require repayment to be made in another state
49
Four types of **tenancies**
1. tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenany at sufferance
50
Tenancy for Years
(definition; how is it created and terminated?)
Measured by a fixed and ascertainable amount of time
*can be any length of time, doesn't have to be years but if longer than one year has to be in writing/signed to meet SoF
Creation: An agreement by the landlord and tenant (with intent to create leasehold)
Termination: Terminated automatically at the end of the term
- notice not required unless lease requires it
- termination before term: tenant surrenders or tenant/landlord commits material breach
51
Periodic Tenancy
(definition; how is it created and terminated?)
Estate that is repetitive and ongoing for a set period of time (month to month, year to year); renews automatically at the end of each period until one party gives proper notice of termination
Creation: Parties must intend to create a period tenancy (intent can be expressed or implied)
Termination: Renews automatically until proper notice is given
- old: year to year, must give 6 months notice
- new: shorter notice req - give notice before start of what will be last term
- most jurisdictions require written notice
52
Tenancy at will
(definition; how is it created and terminated?)
May be terminated by either landlord or tenant at any time, for any reason
Creation: express agreement or implication
Termination: Can be terminated by either party without notice
- if agreement gives only landlord right to terminate at will, tenant also gets the right to terminate by implication (reverse is not true, landlord is not given right to term if agreement only gives tenant right)
- landlord's death terminates
53
Tenancy at sufferance
(definition; how is it created and terminated?)
Created when a tenant holds over after the lease has ended
- temp tenancy that exists before the landlord either evicts prior tenant or re-rents the property to the tenant (creates anew tenancy with the holdover tenant)
- tenant owes reasonable value of daily use as well as reasonably foreseeable special damages
Creation: created by actions of the tenant alone
Termination:
- tenant voluntarily leaves
- landlord evicts tenant
- landlord re-rents to the tenant
54
Tenant's Duties
- pay rent
- avoid waste
55
3 situations where tenant's duty to pay rent is suspended:
1. Premises are destroyed (as long as tenant didn't cause)
2. landlord completely/partially evicts tenant
3. landlord materially breaches lease
- breach of implied covenant of quiet enjoyment
- breach of implied warranty of habitability
56
Implied Warranty of Quiet Enjoyment
Tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted (the remedy)
57
4 elements of Constructive Eviction
1. premises were unusable for their intended purposes
2. tenant notifies the landlord of the problem
3. landlord does not correct the problem, AND
4. tenant vacates the premises after a reasonable amount of time has passed (have to give landlord time to fix)
58
Implied Warranty of Habitability
Landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten the tenant's health and safety.
- tenant cannot waive habitability protection
- landlords failure to comply with applicable housing codes constitutes evidence of breach
- applies to residential properties (multi-family buildings), not to commercial leases
- If premises are not habitable, tenant can:
1. refuse to pay rent
- must notify AND give reasonable opportunity to correct
2. remedy the defect and offset costs against the rent, OR
3. defend against eviction
*doesn't require vacating IWQE
59
Tenant's Duty to Avoid Waste
- the background rule, doesn't have to be expressed in lease to apply
- duty not to commit affirmative/permissive waste
- tenant can make ameliorative waste but landlords usually require permission and can prohibit this in lease
-
60
Duty to Repair
In residential lease, the landlord is presumed to be responsible for repairs. The tenant must notify landlord of any needed repairs. landlord not responsible for repairs caused by tenant's actions.
In commerical lease, landlord can place duty to repair on tenant.
61
Landlord's Duty to Mitigate Damages
majority - landlord must make reasonable efforts to re-rent property
- treat leasehold as if it was vacant stock (property she would try to rent)
- if landlord does not make diligent efforts to mitigate, tenant is relieved from obligation to continue paying rent
- if landlord does seek to mitigate, landlord is entitled to the difference between the original rent and rent received from the replacement tenant
- landlord does not have to accept unacceptable replacement tenant
minority - landlord does not have to mitigate damages (more common in cases involving commercial leases)
62
How can landlord deal with a holdover tenant?
1. can evict OR
2. continue relationship by treating holdover tenant as a periodic tenant
- continue relationship by accepting rent (amount under old lease)
- exception: landlord can impose higher rent if landlord had informed tenant of the increase prior to the expiration of the old lease
63
Landlord's Duty to Deliver Possession
majority - landlord must deliver actual, physical possession of the leasehold premises
minority - landlord only required to deliver legal possession
64
Landlord must control:
- common areas - lobby, hallway, laundry room
- nuisance like behaviors of other tenants
65
Landlord does not have to control:
- off premises actions of third parties that are beyond landlord's control
66
Tort Liability:
tenant's duty
landlord's liability
tenant owes duty of care to invitees, licensees, and foreseeable trespassers
landlord's liability to invitees, licensees, and foreseeable trespassers is as follows:
Common law - landlord is responsible for:
- latent defets about which tenant has not been warned
- faulty repairs completed by landlord (or agent) negligently
- negligence that causes injuries in common areas of the property
Modern trend - landlords have a general duty of reasonable care
67
Assignments & Subleases
Assignment - complete transfer of the tenant's remaining term
Sublease - transfer for less than the entire duration of the elase
- if tenant retains a reversionary interest in the leasehold, then the transfer is a sublease
68
In an assignment, who can landlord collect rent from?
tenant (privity of contract) & subsequent tenant (privity of estate)
69
In a sublease, who can the landlord collect rent from?
tenant (privity of contract & estate)
70
Permission to assign/sublease
- if lease is silent - tenant may assign/sublet freely
- if lease requires permission from landlord but silent as to applicable standard, then:
1. majority rule - landlord may deny permission to a transfer only for a commercially reasonable reason
2. minority - landlord may deny permission at her discretion
71
Transferring a landlord's interest
- landlord doesn't need tenant's permission before transfering interest
- new landlord is bound to the terms of the existing lease
72
# Land sale contracts
Types of agents
- listing agent
- seller's agent
- buyer's agent (broker)
- dual agent (many states forbid)
73
Two stages of land sales
1. contract stage - where parties negotiate terms
2. deed stage - where parties transfer property
74
# Land sales
Liability at each stage
contract stage - any liability must be based on a contract provision
deed stage - any liability must be based on deed warranty
*doctrine of merger - covenants under the contract are merged into the deed and any remedy will flow from the deed
75
Land sale contracts are subject to SoF
3 requirements to meet SoF
- must be in writing
- signed by the party to be charged, AND
- must include essential terms:
1. parties
2. description of property
3. price & payment info
76
# Land sale contracts
2 exceptions to SoF
**1. part performance**
- partial performance by either b/s is treated as evidence that contract existed
- look for acts such as payment (of all or part), possession by purchaser, or improvements made by purchaser
- many states require at least 2 for doctrine of partial perf to apply
**2. detrimental reliance/estoppel**
- an estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract were not enforced
77
# Land sale contracts
Marketable Title
Every land sale includes an implied covenant of marketable title - title that is free from an unreasonable risk of litigation
Examples of defects that would render title unmarketable:
- title acquired by adverse possession that hasn't been quieted
- private encumberances (mortgage, covenant, easement)
- violation of zoning ordinance
*defect in title must be cured or fixed BEFORE CLOSING, at which point the contract and deed merge and deed controls
78
standard for judging whether title is marketable
- that of a reasonable buyer
79
Buyer's remedy when seller cannot deliver marketable title
Recission of the contract
80
Basic rule for **delays** in land sale contracts
basic rule: time is NOT of the essence.
If time is of the essence, failure to close on the date set for closing may be a breach of the contract, but is not grounds for recission of the contract
- specific performance is still available
81
Land sale contracts and the implied warranty of fitness or suitability that applies to defects in new construction (builder warranty)
most jurisdictions - both the initial homeowner-purchaser and subsequent purchasers may recover damages
minority jurisdictions - only origianl buyer can enforce this warranty
Generally, suit for a breach of this warranty must be brought within a reasonable time after discovery of the defect (some juris have statutory time period)
82
Duty to disclose defects
most jurisdictions impose a duty on the seller to disclose to the buyer all known, physical and material defects
- latent defects
- material defect must substantially affect the value of the home, health and safety of its occupants, or hte desirability of the home
- general disclaimers ("as is") will not satisfy seller's duty to disclose
if there was something important in contract not in deed, CoA is lost because deed controls
83
# Land sale contracts
Seller's Remedies on Buyer's Breach
- damages: difference between contract price and market price
- recission: seller can sell property to someone else
- specific performance
*cannot get both damages and specific performance
84
# Land sale contracts
Buyer's Remedies on Seller's Breach
- damages: difference between contract price and market value on the date of breach
*if seller breached in good faith, buyer can only recover out-of-pocket expenses*
- recission: returns payment to the buyer and cancels contract
- specific performance
*cannot get both damages and specific performance
85
Who bears the risk of loss if there is damage to or destruction of the property between the period of contract & closing?
majority - buyer is responsible for any damages to the property because buyer holds equitable title during period between contract and closing/delivery of deed
minority - risk of loss on seller until closing/delivery of deed
86
Doctrine of Adverse Possession
Allows a person in unlawful possession to acquire good title to a piece of property. Until the person acquires good title, the person is a trespassor.
When a person acquires title by adverse possession, new title relates back to the date of the person's entry onto the property (no transfer of title from former owner).
- property owned by the gov cannot be adversely possessed
- rationales:
1. punish true owner for sleeping on her rights, AND
2. reward adverse possessor for earning good title
87
Doctrine of Adverse Possession
4 elements
**1. continous for the statutory period**
- entry phase: when AP enters, triggers SoL
- middle phase: when AP makes use of prop
- end phase: when SoL runs out, AP is now legal owner of prop
- not literally continous (seasonal, infrequent may suffice depending on type of prop)
- can tack on predecessor's time on prop to satisfy SoL - must be in privity with prior AP
- SoL doesn't run against true owner who has disability (infancy, insanity, imprisonment)
**2. open and notorious use**
- would put reasonable true owner on notice of adverse use
- cannot be hidden, AP has to use it like they are true owner
**3. hostile, **AND
- hostile does not necessarily mean unpleasant
- majority - ignore AP state of mind
- minority - consider AP state of mind
(good faith - AP claim hostile if AP thinks land is unowned/rightful owner based on mistake)
(bad faith - AP knows not theris but tries to acquire by AP - aggressive trespass = hostile)
**4. exclusive**
- AP cannot share possession w/ true owner
88
What is a deed?
A deed is a legal instrument that transfers ownership of real property
89
For a deed to be valid, it must:
be delivered and accepted.
Delivery
- controlling q - does grantor have present intent to transfer property?
- physical transfer of deed not required, phonecall ok
- revocable deed not sufficient (unless i change my mind)
- grantor can make proper delivery to an agent
Acceptance
- generally presumed
- need facts of rejection to show it was not accepted
90
What can brokers do?
- can be involved in land sale contracts as long as they do not practice law.
- most states permit RE agents and brokers to prepare a contract of sale
- RE agents cannot usually draft a legal doc like a deed or mortgage
- look for exercise of legal discretion and whether broker/non lawyer is giving legal advice
91
Contents of a valid deed
- identify parties & signed by grantor (grantee sig not required for execution to be effective)
- include words of transfer - present intent to transfer
- sufficient description of property - doesn't have to be legal description, can be based on monuments/physical attributes of prop, extrinsic evidence can be admitted to clarify ambiguous description
92
Does deed need to be witnessed or notarized to be executed?
No
93
Can a principal appoint an agent to execute a deed?
Yes
94
# Execution of Deed
Equal Dignities Rule
If agent is required to sign (execute a deed), then agency relationship must be created in writing.
95
Recording
Publicly registering your deed
purpose is to give notice to the world that you own property
doesn't effect validity of deed (deed is valid at delivery)
concern over subsequent purchasers
96
Common Law Recording Rule
- deed doesn't have to be recorded to be valid
- baseline
- follows the first in time, first in right principle
97
What interests are covered by recording?
1. deeds
2. mortgages
3. leases
4. options
5. judgments affecting title
6. other instruments creating an interest in land, such as easement or covenant
98
Easement & Covenant
easement: landowner gives another a limited right to use their land, most often for reasonable access to things like roads, trials, parks or beaches
covenant: formal agreement between two+ parties about how to use a piece of real property
99
Who is not covered by recording acts?
- grantees who acquire title by gift, intestacy, or devise
policy behind recording: protect those who make economic investments by acquiring property
- title by adverse possession - does not cover interests created by operations of law
100
Three kinds of notice
actual notice - when subsequent grantee has real, personal knowledge of a prior notice
constructive/record notice - when a prior interest is recorded
inquiry - when a reasonable investigation would have disclosed the existence of prior claims -- 2 situations where subsequent grantee will be put on inquiry notice
- dude on the land - when someone else is living on/using the land and if sub grantee investigated the land they would have discovered the person in possession
- mentioned interest - when there is an interest mentioned in the deed to some other transaction and had the sub grantee inquired, he would have discovered the interest
101
3 different type of recording statutes
1. Race statute
2. Notice statute ~
3. Race notice statute ~
~ most frequently tested on MBE
102
Race Statute
Rule - First to record wins, even if subsequent purchaser had notice of a prior, unrecorded conveyance
"first recorded"
"first to record"
minority of states
103
Notice Statute
Rule: A subsequent purchaser wins if she acquires **without notice of a prior unrecorded conveyance**
"in good faith"
"without notice"
104
Race-Notice Statutes
Rule: A subsequent purchaser wins if two requirements are met:
1. acquired without notice of a prior unrecorded conveyance, AND
2. records first
"In good faith"
"without notice"
PLUS
"First duly recorded"
"First recorded"
105
Shelter Rule
Person who takes from a bona fide purchaser protected by the recording act has the same rights as her grantor
106
Estoppel by deed
arises when grantor conveys land the grantor does not own.
if grantor subsequently acquires title to the land, grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance
107
3 kinds of deeds
1. general warranty deed
2. special warranty deed
3. quit claim deed
listed from most protection to least amount of protection
108
General Warranty Deed
(& the 6 implied covenants)
The grantor warrants title against all defects, even if the grantor did not cause the defects.
- provides the greatest amount of title protection
6 implied covenants
Present:
1. Covenant of seisin: warrants that deed describes the land in question
2. Covenant of the right to convey: warrants that the grantor has the right to convey the property
3. Covenant against encumbrances: warrants that there are no undisclosed encumbrances on the property that could limit its value
*breach of present cov occurs at conveyance
Future: (after delivery of deed)
4. Covenant of quiet enjoyment: grantor promises that grantee's possession will not be disturbed by a third-party claim
5. Covenant of warranty: grantor promises to defend against future claims of title by a third party
6. Covenant of further assurances: grantor promises to fix future title problems
*breach of future covenants occurs after the conveyance once there is interference with possession
109
Special Warranty Deed
Grantor warrants against defects only caused by the grantor
Includes same six covenants as general warranty deed, but they only apply ot the acts/omissions of the grantor
110
Quitclaim Deed
Grantor makes no warranties as to the health of the title
- often used in tax sales and intra-family disputes (divorces)
-
111
Escheat
if decedent dies without a will and without heirs, decedent's property goes to the state
112
Ademption
devise of property that fails (adeems) because it is not in the testator's estate at death
Basic rule: gift fails and intended recipient gets nothing.
If testator gives the intended beneficiary the promised gift during life, then beneficiary keeps the gift (ademption by satisfaction)
113
Lapse
intended beneficiary predeceases testator
traditionally, gift fails/lapses and falls to residuary gift
114
Anti-lapse
every state has anti-lapse statute to prevent gift from failing bcause an intended recipient predeceased the testaor
most states - predeceasing beneficary must be relative of testator who dies leaving issue
115
Res
property subject ot the trust
116
