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NY Bar 2014 > Real property > Flashcards

Flashcards in Real property Deck (195):
1

Freehold Estates: What are the three species of defeasible fees?

Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to an executory limitation.

2

What is a fee simple determinable?

Language: Clear Durational Language - language providing that upon the happening of a stated event, the land is to revert to the grantor
Automatic!
Duration: Potentially infinite, so long as event does not occur.
FI: Possibility of reverter (held by grantor).
FSDPOR: Fee Simple Determinable, Possibility Of Reverter.

3

NY term:
Fee simple determinable

"Fee on limitation"

4

What is a fee simple subject to condition subsequent?

To A, but if X event happens, grantor reserves the right to reenter and retake."
Grantor must carve out right of entry.
Not automatic - must exercise right!
Duration: Potentially infinite, so long as event does not occur.
FI: Right of entry/power of termination (held by grantor)

5

NY term:
Fee simple subject to condition precedent

Fee on condition

6

NY term:
Right of entry / power of termination

Right of re-acquisition

7

What is a fee simple subject to an executory limitation?

To A, but if X event occurs, then to B."
Duration: Potentially infinite, so long as stated contingency does not occur.
FI: Shifting Executory interest (held by third party).
(Just like FSD, only now, if the condition is broken, estate is automatically forfeit in favor of someone other than O, grantor.)

8

Life estate: Future interest?

Reversion - if to Grantor
Remainder - if to 3rd party

9

What is a remainder?

Future interest in GRANTEE (not O)
Preceding estate of known fixed duration (life estate / number of years)
Never after defeasible fee. Doesn't cut off prior transferee. Not executory interest.

10

Vested remainder

Created in ascertained person. No CP.

11

3 types of vested remainder

Indefeasibly vested
Vested subject to complete defeasance
Vested subject to open

12

1. Indefeasibly vested remainder

Certain to acquire. No conditions.
If predeceases condition - to heirs (CL)

13

2. Vested remainder subject to complete defeasance / total divestment

Condition subsequent. (If CP would be a contingent remainder)
Remainderman's possession could be cut short by a condition subsequent.

14

NY term:
Vested remainder subject to complete defeasance

"Remainder vested subject to complete defeasance"
(just switched some words around)

15

How to distinguish between CP and CS

CP: before - "if, then" - might not happen --> contingent remainder
CS: after "provided that" - will happen but might not continue --> vested remainder subject to complete defeasance

16

3. Vested subject to open

Class/category not yet closed
At least one already qualified to take (if not -->contingent)
Closes when max membership set, persons born afterwards are excluded
(i.e. whenever any member can demand possession)
Fetus included.

17

Contingent remainder

Created in unascertained/unborn person(s) OR subject to CP.

18

NY term:
Contingent remainder AND executory interest are both called:

Remainder subject to CP.

19

Abolished rule:
"Destructability of contingent remainders"

If still contingent when previous estate ended --> remainder destroyed.
Instead: Grantor with contingent remainder's springing executory interest.

20

Abolished rule (everywhere):
"Shelley's case"
"To A and then to A's heirs"

Becomes FSA.
Instead: Becomes life estate + contingent remainder + O reversion if no heirs.

21

Abolished rule (in NY):
"Rule of worthier title"
Life estate to A then to O's heirs.

No remainder in grantor's heirs. becomes reversion to O.
[Abolished only in NY]

22

2 types of executory interest

Cuts short interest in O or heirs: "springing"
Cuts short interest in 3rd party: "shifting" -- always follows defeasible fee.

23

When are absolute restrains on alientation voided?

When not linked to reasonable time-limited purpose
(Must state TIME and PURPOSE)

24

Tenant entitlement in life estate?

Entitled to all ordinary uses and profits from land.
Must not commit "waste" (i.e. injury to future interest holders)

25

Three types of "waste"

Voluntary/affirmative
Permissive
Ameliorative

26

Voluntary/affirmative waste

"Actual overt conduct which causes diminution of value"
Cannot consume/exploit natural resources

27

4 types of permitted "voluntary waste"

PURGE:
Prior Use (was already used for exploitation / open mines)
Repairs
Granted right to do so
Land suitable only for Exploitation

28

Permissive waste

Must maintain in good repair and pay ordinary taxes.
(to extent of income from land;
to extent of fair rental value - if no income)

29

Ameliorative waste

Not allowed to enhance value!
EXC: All remaindermen are known and they CONSENT.
*NY* Reasonable improvements OK unless remaindermen OBJECT (default - allowed)

30

RAP
Paula's 4-step test

1. Identify future interest
2. Identify CP to vesting
3. Idenify measuring life
4. Certainty after death + 21y?

31

Future interests subject to RAP

Contingent remainder
Executory interest
Vested remainder subject to open (some)

32

Future interests NOT subject to RAP

Future interest in Grantor: POR, right of entry, reversion
Indefeasibly vested remainders
Vested remainder subject to complete defeasance [STRANGE!]
Charity to charity transfers [not initial transfer to charity]

33

Gift to open class conditioned upon members surving beyond 21y?

Violates CL RAP (since someone still might be born and then need to wait 21y).
"Bad as to one, bad as to all" - CP for each member must occur within RAP period.
Otherwise - entire gift void.

34

Executory interest with no limit on time for vesting

Violates RAP.

35

What happens when future executory interest violating RAP is stricken?

If provision not gramatically sound anymore - entire condition is stricken.
(The result is that O no longer has a POR, and A has FSA!)
(Better for O to state "to A so long as, then to?.)

36

RAP Reform (not NY):
"Wait and See" / "2nd Look"

Validity of suspect future interest determined on basis of
"facts as they now exist, at conclusion of measuring life".
--> No "what if" "anything possible"

37

RAP Reform (not NY):
Uniform Statutory Rule Against Perpetuities

Provides alternative 90-year vesting period.

38

RAP Reform (not NY):
Cy Pres

"as near as possible"
Court power to reform transfer in a way most closely matching grantor's intent, whilee complying with RAP.
[Under "Wait and See" and USRAP]

39

RAP Reform (also NY!):
Age contingency reduction

Reduction of offensive age contingencies to 21.
[Under "Wait and See" and USRAP]

40

RAP Reform in NY?

Reforms:
- Age contingencies reduced to 21y.
- Fertile octogenarian - 55y.
- No suspension of absolute power of alienation if > life+21y
No Wait and See, no Cy pres.]

41

CONCURRENT OWNERSHIP
3 forms:

Joint tenancy
Tenancy by the entirety
Tenancy in common

42

Joint tenancy is:

2 or more own WITH right of survivorship

43

Joint tenancy: Transferability

Transferable inter-vivos.
But not devisable/descendable (because of survivorship)

44

Joint tenancy: Creation

4 unities:
- Same time
- Same title
- Identical equal interests
- With right to possess as a whole
AND Grantor must clearly state right of survivorship. No default.

45

Joint tenancy: Use of straw man?

MBE: Needed when single holder wants to add a joint tenant.
*NY* No need.

46

Joint tenancy: Severance - sale during lifetime

Buyer becomes tenant in common.
Joint tenancy severed as soon as sale agreement signed ("equitable conversion")
OK to sell secretly.

47

Joint tenancy: Severance - partition

1. Voluntary agreement.
2. Partition in kind: Judicial action for physical division
3. Forced sale, proceeds divided equally.

48

Joint tenancy: Severance - mortgage

Execution of mortgage does NOT sever joint tenancy (NY + majority - "lien theory")
(Minority - "title theory")

49

Tenancy by the entirety

Protected marital interest WITH right of survivorship
*NY* default for couples

50

Tenancy by the entirety: Creation

H&W sharing right of survivorship "as fictitious single person"
Default! Any conveyance made to H&W unless stated otherwise.

51

Tenancy by the entirety: Creditors of only one spouse

Creditor of one spouse can't touch tenancy.
*NY* One spouse can mortgage his own share. Right of survivorship cannot be compromised.

52

Tenancy by the entirety: Unilateral conveyance

Spouse can't transfer share to third party without other spouse approval.

53

Tenancy in common

2 or more own WITHOUT right of survivorship

54

Tenancy in common - features

Each owns individual part, with right to possess whole.
Descendible, devisable, alienable.
No survivorship rights.
Favored by presumption!

55

Tenancy in common - can tenant demand rent for being absent?

No.

56

Tenancy in common - can tenant demarcate property?

No - actionable ouster.

57

Tenancy in common - one tenant rents out portion

Other tenants entitled to proportionate amount of rental payments.

58

Tenancy in common - tenant acquires other tenant's title through adverse possession?

MBE: No. Only by ouster (incl hostility)
NY: Yes if in possession for 20y - "implied ouster"

59

Tenancy in common - repairs, carrying costs by one tenant?

Entitles to "contribution" from other tenants.
(Only repairs, not improvements, except credit at partition for increased value)

60

LEASEHOLD ESTATES
4 types

Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance

61

Tenancy for years

Fixed time.
No notice before expiration.
SoF: >1y must be in writing

62

Periodic tenancy

Successive intervals until one party gives notice.
Expressly or by implication (contract mentions payment intervals but not lease period, oral term of years in violation of SoF)
Or by Holdover --> implied tenancy for terms of payment.

63

Periodic tenancy - holdover in NY?

Implied month-to-month tenancy unless agreed otherwise.

64

Periodic tenancy - when does it end

At conclusion of natural lease period only.

65

Tenancy at will

No fixed period. Endures as long as either wants.
Payment of regular rent --> implied periodic.

66

Tenancy at will - when terminated?

By either party upon reasonable demand.
*NY* Landlord gives at least 30 days.

67

Tenancy at sufferance

When tenant WRONGFULLY holds over.
Tenant gets 'leasehold estate' to allow landlord to collect rent.

68

Tenancy at sufferance - when terminated?

Until L evicts or holds T for new term.
*NY* Acceptance of rent creates implied month-to-month periodic tenancy.

69

TENANT'S DUTIES
3 types

3rd parties
Repair
Pay rent

70

Tenant duty to 3rd parties

Keep in reasonable repair.
Liable to 3rd parties even when Lessor promised to make repairs.

71

Tenant duty to repair; law of fixtures

To maintain.
No "waste".
Fixtures = intent to permanently improve; cannot remove.
"Fixtures pass with ownership of land"

72

When is tenant's installation a "fixture"?

When removal doesn't cause substantial harm "in objective judgment" --> NOT a fixture
Causes = intention to install fixture.

73

When premises destroyed AND tenant ha obligation to maintain in good condition?

Majority: T may end lease if premises destroyed without T's fault.
*NY* T may end lease when lessee does not give express undertaking to restore.
(CL: T responsible for any loss including force of nature)

74

Failure to pay rent - self help?

NO!
Huge damages in *NY*.
Only: eviction through court, or continue and sue for rent

75

Failure to pay rent while T is not in possession?

L can decide whether to "surrender", "ignore" or "relet"

76

Failure to pay - "surrender"

Implies offer of surrender of leasehold.
But if >1y, must be in writing under SoF, no implication.

77

Failure to pay - "ignore" (only *NY*)

As if T still in possession, hold liable for deficiency in rent payments.
*NY* + minority

78

Failure to pay - "re-let" (not *NY*)

Good faith effort to re-let in order to mitigate damages.
(Not required in NY)

79

LANDLORD's DUTIES

Possession
Quiet enjoyment
Habitability
No retaliatory eviction

80

Landlord: Possession

Put T in actual physical possession.

81

Landlord: Quiet enjoyment

"Implied covenant of quiet enjoyment"
Residential AND commercial
Incl "constructive eviction" - eg. floods in rain

82

Conditions for "constructive eviction"

1. Substantial interference (attributed to L's action or failure)
2. Notice to L, L fails to respond meaningfully
3. Get out - T must vacate within reasonable amount of time after failure, cannot remain and claim constructive eviction!
[SING]

83

Landlord: Habitability

"Implied warranty of habitability"
Only residential. Non-waivable.
"Must be fit for basic human dwelling" - bare requirements supplied by local housing code or case law.

84

Remedies to breach of habitability warranty

Move out + terminate
Repair and deduct
Reduce rent (in escrow) until court determines fair rent
Remain in possession, pay rent, seek damages.

85

Landlord: No retaliatory action

For housing code violation whistleblowers.

86

Assignment/Sublease - default?

MBE: Allowed by default.
*NY*
ASSIGN: Default requires L's written consent. If unreasonably withheld, T can seek release from lease.
SUBLET: In residential building with 4+ units, sublet requires consent which cannot be unreasonably whthheld. Unreasonable - deemed consent!

87

When contract makes subject to L's prior approval

If approved once, automatically waives right to object in future, unless expressly reserved.

88

Privity of contract between L and assignee T2?

No, only privity of estate. T1 secondarily liable to L. Unless T2 expressly assumed all promises in lease.
Actual tenant always has "privity of estate" with landlord and can be liable, even if T did not expressly undertake contract.

89

Privity of contract between L and sublet tenant?

No privity of contract.
No privity of estate either!

90

Landlord's tort liability - CL rule

"Let the tenant beware". No duty to make premises safe.

91

5 exceptions to L tort liability

CLAPS:
- COMMON AREAS (must maintain)
- LATENT DEFECTS rule (must warn if known or had reason to know) (not duty to repair)
- ASSUMPTION of repairs (if undertaken must complete reasonably, and liable for negligent repair)
- PUBLIC USE rule (liable for defects which L knows T will not repair, due to nature of defect and length of lease)
- SHORT-TERM LEASE of furnished dwelling

92

EASEMENT - Define

Grant of a non-possessory property interest
that entitles its holder to some form of use or enjoyment
of another's land

93

Land subject to easement is called

Servient tenement

94

Most are affirmative.
Four categories of negative:

Light
Air
Support
Stream water from artificial flow

95

How to create negative easement?

Expressly in writing signed by grantor
No natural or automatic right

96

Distinguish:
Appurtenant easement / held in gross?

Appurtenant: Benefits holde in physical use of property
(Dominant tenement vs Servient tenement) -- need two!
In gross: Personal/pecuniary advantage not related to use of land.
(No dominant tenement)

97

Transferability of easements?

Appurtenant:
Automatically upon sale of dominant estate.
Automatically upon sale of subservient estate unless buyer is BFP without notice of easement!
In gross:
Only easement for commercial purpose transfers automatically.

98

4 ways to create affirmative easement

PING:
Prescription
Implication
Necessity
Grant

99

1. Prescription

Adverse possession:
COAH - ‡†—„
Continuous use for given statutory period (*NY* 10y)
Open notorious use
Actual use
Hostile - without servient landowner permission (if permission - no AP!)

100

2. Implication

Previous use was apparent
Parties reasonable expect that use will survive division, since reasonably necessary to dominant land's reasonable use and enjoyment.

101

3. Necessity

Eg. Conveyed landlocked portion of land.

102

4. Grant

SoF: If >1 must be in writing ("Deed of Easement")

103

Unilateral expansion of orignal scope of easement to benefit non-dominant parcel?

Not allowed.

104

Termination of easement
8 types - END CRAMP

Estoppel - Servient owner materially changes position in reliance on assurance that easement not enforced.
Necessity: Easement created by necessity ends when necessity ends (unless given in writing)
Destruction: of servient land (EXC by sevient owner)
Condemnation of servient estate (eg. gov builds road)
Release: in writing
Abandonment: Easement holder physically demonstrates intention never to use easement again
Merger doctrine: Title to both lands vested in same person -->easement extinguished.
Prescription: Servient owner blocks, extinguished via AP (COAH)

105

LICENSE - define

Freely revocable
Mere privilege
To enter another's land
For a specific/delineated purpose

106

Licenses subject to SoF?

No!

107

What can bar revocation of license?

Estoppel. Licensee invested substantial money or labor

108

Licenses - 2 examples

Tickets
Oral easments

109

PROFIT - define

Entitles holder to enter subservient land and take soil or substance of soil

110

Profit - same rules as:

Easements,
incl >1y SoF requirement.

111

COVENANT - define and distinguish from easement.

Contractual limitation or promise regarding land.
(Not easement, which is property right in land)

112

Negative covenants - types:

Unlimited.
(Not like 4 negative easements.)

113

Covenant - distinguish from equitable servitute

Acc to basis of remedy!
If $$ damages -->covenant
If injunctive --> equitable servitute.

114

When does covenant run with land?

When it is capable of binding successors
When both lands transferred - first analyze burden - harder test.

115

Burdened land transferred - when does covenant bind transferee?
[WITHN]

Writing (original promise, not transferee undertaking)
Intent (orig parties intended that promise would run)
Touch and concern the land: Promise affects parties legal relations as landowners, not members of community at large
Horizontal privity: succession of estate between orig. parties - grantor/grantee, landlord/tenant, mortgagor/mortgagee
Vertical privity: between A1-A2 (anything except AP)
Notice: A1 had some notice of promise

116

Most common reason to disqualify binding of transferee of burden land

No horizontal privity between original promising parties

117

Benefiting land transferred - when does covenant benefit transferee?
[WITV]

Writing. Intent. Touch and concern.
Vertical privity. (Not horizontal!) (Way easier than burdened property)

118

EQUITABLE SERVITUDES - define

Promise that equity will enforce against successors.
Accompanied by injunctive relief.

119

Creation of equitable servitude binding successors
[WITNES]

Writing
Intent (to be enforceable against assignees)
Touch and concern
Notice - to assignees of promise
(Privity not required!)

120

Implied equitable servitude - when?

Eg, sells many lots with restrictive coventants against commercial use, then sells one without. Is last one bound ("reciprocal negative servitude")?

121

Implied equitable servitude - 2 elements

1. When sales began - subdivider had general scheme of residential development which included this lot.
2. Lot holder had notice of promise contained in all prior deeds.

122

Notice - 3 types
[AIR]

Potentially "imputed to D":
Actual - literal knowledge
Inquiry - neighborhood appears to conform to common restriction
Record - publicly recorded docs (*NY* he does not have record notice of prior deeds themselves)

123

ADVERSE POSSESSION - concept

"Possession for a statutorily prescribed period can, subject to conditions, RIPEN into title."

124

AP - 4 elements

COAH
Continuous possession
Open and notorious
Actual
Hostile

125

Does possessor's subjective state of mind matter?

MBE: Irrelevant
NY: Must have mistaken "good faith belief" that land is his. If he knows he is occupying 3rdP land - no AP!!!!

126

Tacking - including predecessor's possession time for SoL?

When there is privity - any non-hostile nexus. Not when there has been an ouster.

127

True owner afflicted by disability at INCEPTION OF AP

SoL doesn't run.
(N/A if afflicted after inception of AP)

128

REAL ESTATE CONVEYANCE
2 steps

Land contract.
Closing - deed becomes operative document.

129

Contract - SoF requirements

In writing.
Signed by D
Describe land
State some consideration

130

If actual size is less than size in K?

Specific performance
Pro rata reduction in purchase price

131

Exception to SoF in land Ks

"Doctrine of part performance"
Two of three --> specific performance for oral contract:
1. B takes physical possession
2. B pays all or part of price
3. B makes substantial improvement

132

Risk of loss in K?

MBE: Equitable conversion - "equity regards as done that which ought to be done". Therefore, BUYER bears risk of land destruction after contract.
*NY* So long as buyer is without fault, risk of loss remains with SELLER until buyer has title or takes possession.

133

Two implied promises in every land contract

To provide marketable title
Not to make any false statements of material fact

134

Marketable title is

Title free from reasonable doubt, free from law suits and the threat of litigation

135

3 circumstances which render title UNmarketable

Adverse Possession --> No "good record title"
Encumbrances --> No unencumbered fee simple
If the property violates an applicable zoning ordinance

136

General disclaimer of liability in K?

Does not excuse seller from liability for fraud or failure to disclose.

137

Contract contains implied warranties of fitness or habitability?

Nope! Buyer beware.
EXC: Implied warranty of fitness and workmanlike construction in sale of a new home by a builder-vendor.

138

DEED: Requirements for passing legal title
[LEAD]

Lawfully executed and delivered

139

Lawful execution of deed?

In writing.
Signed by Grantor.
Doesn't need consideration.
Unambiguous description of land (doesn't need to be perfect)

140

Lawful delivery of deed?

Grantor physically or manually transfers the deed the grantee.
Can use mail, an agent or a messenger.
Test present intent: Did grantor have the present intent to be immediately bound, irrespective of whether or not the deed itself has been literally handed over.
Express rejection of the deed: defeats delivery

141

Delivery with oral condition?

Oral condition void.

142

Delivery via escrow, seller dies before condition is met?

Still valid delivery.

143

3 types of deed

Quitclaim (worst)
General warranty deed (best)
Statutory special warranty deed (NY: "Bargain and Sale Deed")

144

Quitclaim deed

No covenants, no promise that seller has title!
(And contract is no longer effective post-closing!)

145

General warranty deed

Warrants against all defects in title, including predecessors.

146

6 typical covenants in general warranty deed

PRESENT COVENANTS
Seisin - he owns
Right to convey
No encumbrances
-----------------
FUTURE COVENANTS
Quiet enjoyment (re title)
Covenant of warranty (will defend)
Further assurances (will perfect title if turns out to be imperfect)

147

When does SoL start to run on deed covenants?

Present covenants: On delivery.
Future covenants: On breach.

148

Statutory special warranty deed
*NY* "Bargain and Sale Deed"
2 promises:

Grantor has not conveyed to anyone else
Free from encumbrances by grantor
(No reps re predecessors)

149

RECORDING SYSTEMS
Two different jurisdictions

Notice jurisdiction
Race-notice jurisdiction

150

NY is a ?. Jurisdiction

Race-notice jurisdiction

151

Notice jurisdiction:

BFP always wins, regardless whether he records first
(enough to be BFP)

152

Race-notice jurisdiction:

BFP only wins if he records first
(Must be both BFP and to record first)

153

BFP is

Purchases for value
AND
Without notice someone purchased first

154

Purchaser "for value"

Discount OK. Any "substantial pecuniary consideration"

155

Do recording statutes protect: donees, heirs, devisees?

Nope.
EXC under Shelter Rule

156

Three forms of notice

Actual knowledge
Inquiry - examination of land would reveal, or if recorded instrument references unrecorded transaction
Record - if prev purchaser properly recorded deed.

157

Text of notice statute

"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof,
unless the conveyance is recorded."

158

Text of race-notice statute

"Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof,
whose conveyance is first recorded."

159

Proper recording of title which always gives notice to subsequent buyers

"Properly recorded
within chain of title"

160

3 chain of title problems

Shelter Rule
Wild Deed
Estoppel by deed

161

Shelter Rule

Someone who buys from BFP steps into BFP's shoes.
"Takes shelter in the status of his transferor"
Including donees etc

162

Wild Deed

O-A transaction not recorded.
A-B transaction recorded - but not connected to title and a search wouldn't find it -- therefore a "nullity". Does not put anyone on notice.
O-C transaction prevails despite the wild deed.

163

Estoppel by deed

One who conveys realty in which he has no interest
is estopped from denying the validity of that conveyance.
(Even though it is a wild deed)

164

MORTGAGE
2 elements

Debt
Voluntary transfer of a security interest in debtor's land to secure debt.

165

Mortgage - SoF

Must be in writing.

166

Equitable mortgage

Giving a deed to the land.
Can use parol evidence to determine parties' intent.

167

If equitable mortgagee sells land to BFP?

Sale valid!

168

Transfer of mortgagee interest?

Indorsing note and delivering to transferee --> "holder in due course"
OR
By executing separate assignment doc

169

HIDC - conditions

Note must be negotiable.
Original note endorsed and signed by named mortgagee
Original note delivered.
Transferee takes note in good faith, no notice of illegality.
Transferee pays value for note - more than nominal.

170

Holder in due course - status

Free of any personal defenses that mortgagor could have raised against orig. mortgagee!
(eg. lack of consideration, fraud in inducement, unconscionability, waiver, estoppel)
(like an endorsed check)

171

HIDC still subject to real defenses:

MADFIFIIII
Material Alteration
Duress
Fraud in the factum (misrep re instrument)
Incapacity
Illegality
Infancy
Insolvency

172

When does lien remain on land through sale?

When mortgage instrument is properly recorded.
"All recording statutes apply to mortgages as well as deeds"

173

If mortgagee bank records after subsequent sale?

Notice jurisdiction: Buyer wins if BFP
Race-notice jurisdiction (NY): Bank wins since it won race to record.

174

Is buyer of mortgaged property liable for the debt?

Depends:
If B "assumed mortgage" - Buyer primarily liable; debtor secondarily liable.
If B "takes subject to mortgage" - Only debtor liable, but bank can still foreclose on the land.

175

Foreclosure - order of priority for use of proceeds

1. Attorney fees and foreclosure expenses.
2. Interest on 1st bank's mortgage.
3. Pay off mortgages in order of priority.

176

Personal claim against debtor for balance not covered by foreclosure is called?

"Deficiency judgment"

177

Those with interests subordinate to the foreclosing party are called ?

"Necessary parties to foreclosure action"
Foreclosure terminates interests junior to the mortgage being forclosed, but:
They must be joined to proceeding. If not, unjoined necessary party's mortgage remains on land after foreclosure sale!

178

If a junior mortgage forecloses?

The senior mortgage stays on the land through disclosure.
Foreclosure buyer should pay off 1st mortgage and deduct from purchase price

179

Priority among creditors determined by:

Recording. First in time (to record) first in right.

180

"Purchase money mortgage"

Superior to earlier collateral rights not relating to purchase (such as floating charge - "after acquired collateral clause".
Must be recorded.

181

Subordination agreement between creditors?

Permissible, enforceable.

182

"Redemption in equity"

At any time prior to foreclosure sale, debtor has right to redeem land.
Cannot waive in agreement, this would be "clogging the equity of redemption"

183

"Statutory redemption" - after foreclosure.

Some states, NOT NY.
Payable: foreclosure price, not debt.
Mortgagor has right of possession during statutory period post-foreclosure.

184

Lateral support:
Land improved by buildings,
adjacent landowner's excavation causes improved land to cave in
When liable?

Negligence only.
No strict liability.
Defense: Land would have collapsed anyway, even in its natural state.

185

Water rights - 2 systems for determining allocation

"Riparian doctrine": owners of land bordering watercourse. Liable for use which interferes unreasonably with other's use.
"Prior appropriation doctrine": Water belongs to state. Any individual can acquire, not just riparian owner. First to do so for productive/beneficial use has priority.

186

Groundwater - surface owner's right?

Reasonable use.
Not wasteful.

187

Surface waters not in natural basin/watercourse?

Usually - cannot divert by making unnecessary harm to another's land.

188

Possessor's rights

Free form trespass and nuisance

189

Trespass - define

"Invasion of land by tangible physical object that interferes with the right of exclusive possession."

190

Action for removal of trespasser?

Action for ejectment.

191

Private nuisance - define

Substantial, intentional and unreasonable interference with another's use and enjoyment of land.
(No trespass required)
(Hypersensitive - not nuisance!)

192

Eminent domain - types of taking

Explicit - condemns land for highway.
Implicit/regulatory - when regulation has effect of wiping out investment. Gov must either compensate or cancel and pay damages.

193

Proponent to variance in zoning must show

Undue hardship
AND
to grant variance will not work a detriment to surrounding property values.
Variance granted or denied by administrative action - zoning board.

194

Nonconforming use under new zoning ordinance:

Cannot be eliminated all at once, unless just compensation paid.
Otherwise:
"unconstitutional taking".

195

Unconstitutional exaction means?.

Amenities which gov seeks from developer in exchange for permission to build.
Actions are "suspect" and may be "unconstitutional extortion".
To pass, must be "reasonably related" in nature and scope to "impact of proposed development".