Real Property Flashcards
Adverse possession
Allows one who has wrongfully entered a property to obtain possession of that property when there has been (1) actual possession, (2) which is open and notorious, (3) and the possession is hostile continuously for the statutory period.
Seasonal use of a property may still satisfy the continuous possession element if this is the way a typical owner of a similar property would use the land.
One adverse possessor may tack his time with the time of another adverse possessor if the two adverse possessors are in privity.
Land sale contract
Contract for a conveyance of an interest in real estate that governs the agreement until closing a which time the deed takes over under the merger doctrine.
SOF applies:
1. writing
2. parties
3. signed
4. describe land
5. consideration
Part performance exceptions (2 of 3)
1. Possession
2. Substantial imrpovements
3. Payment of purchase price
Equitable conversion
Once the contact is signed the buyer is deemed the owner and is responsible for the loss of the property.
Specific performance in a breach of land sale contract
- Valid K
- Conditions imposed on plaintiff satisfied
- Inadequate legal remedy
- Mutuality of performance
- Feasibility of enforcement
- No defenses (laches, unclean hands)
Mortgage
Financing arrangement that conveys a security interest in land where the parties intend the land to be collateral for the repayment of a monetary obligation. SOF applies unless an equitable mortgage. Mortgagee may forclose on the land to satisfy the debt when the mortgagor is in default.
Deed
A document that serves to pass legal title from the grantor to the grantee. A deed must be properly delivered and accepted to have effect. Delivery requirements include a present intent to transfer and acceptance of the deed. Once the property closes the deed becomes the operative document governing the transaction.
General warranty deed
Present covenants (breached at sale)
1. Seisin - grantor owns the property interest
2. Right to convey
3. Against encumbrances - no mortgages, liens, easements, or use restrictions.
Future covenants (run with the land)
1. Warranty of title - grantor promises to defend lawful claims of title
2. Quiet enjoyment - promise that grantee will not be disturbed in possession by lawful claims of title
3. Further assurances - grantor will do whatever future acts are reasonably necessary to perfect title.
Devising property by will
- Ademption - Property is no longer part of the estate at time of death gift fails.
- Exoneration - Encumberances on the property will be paid off by the estate.
- Lapse and antilapse - If beneficiary predeceases testator bequest fails in lapse jurisdiction or is passed to heirs under antilapse.
Recording statute types
Pure race statute - First to record wins.
Pure notice statute - BFP prevails over grantee that didn’t record.
Race-notice statute - A BFP that records first prevails over a grantee that didn’t record.
Recording notice
- Actual notice
- Inquiry notice- purchaser is in possession of facts or could make an inspection of the property which would lead a reasonable person to make further inquiry.
- Record notice- Prior interest was properly recorded.
Estoppel by deed
One who conveys interest he does not own but subsequently obtains an interest in automatically transfers to the grantee.
Shelter doctrine
One who takes from a BFP stands in the shoes of the BFP.
Fee simple absolute
Absolute ownership indefinitely
Fee simple determinable
Automatically terminates at the occurance of a specified event. Grantor has a possibility of reverter.
so long as, during, while, until, unless
Fee simple subject to condition subsequent
Has the potential to terminate at the occurrence of an event. Grantor has a right of reentry.
but if, provided that, upon the condition that
Life estate
Measured by the lifetime of a person. Conveyable for that lifetime. Duty of life tenant not to commit waste.
Restraints on alienation
Absolute restraints are void but reasonable restraints will be upheld.
Rule Against Perpituities
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
Joint tenancy
Two or more people hold a single, unified interest in a property with a right of survivorship. A conveyance made by one joint tenant will sever the joint tenancy into a tenancy in common. A joint tenancy cannot be devised by will.
Requires:
a. interest created at the same time
b. shared title
c. equal interests
d. equal right of possession
e. express right of survivorship
Lien theory mortgage does not sever, title theory severs, both sever if forclosed.
Tenancy in common
Two or more people own a property without a right of survivorship. Each cotenant has the right to possess the whole property. A cotenant has no duty to pay for his occupancy or to share profits from his use of the land. Cotenants are solely responsible for theur own losses from use of the property. Cotenants are responsible for their proportionate share of carrying costs such as taxes and mortgage interest payments. May seek contribution if paid more than their share. Can also seek contribution for necessary repairs.
Tenancy by the entirety
Neither tenant can unilaterally convey their share or encumber the property or break the right of survivorship.
Ouster
Cotenant refuses occupancy to other tenant. Must account for fair rental value of the premises to ousted tenant. Ousted cotenant may bring action to regain possession.
Tenancy for years
For a fixed period of time. SOF if more than one year. No notice to terminate.
Periodic tenancy
Automatically continues from one period to the next. Written notice is required to terminate in accordance with the time period unless for 1 year than six months notice is sufficient.
Holdover tenants is considered to have a periodic tenancy of the time period of the expired lease. Known as a tenancy at sufferance.
