Real Property Flashcards
(17 cards)
Right to prepay mortgage
Common law–prepayment barred unless mortgage documents provide otherwise
Majority rule–prepayment allowed unless mortgage documents provide otherwise.
Prepayment prohibitions or penalties are generally valid and enforceable.
What are the “red flags” for marketable title?
Covenants, easements, leases, liens, gaps in chain of title, boundary disputes, existing zoning violations, adverse possession
Riparian doctrine
Favored by eastern states where water is plentiful–Under the riparian doctrine, water rights belong to the owners of the land that borders the watercourse (a riparian). A riparian may make any reasonable use of water that does not unreasonably interfere with downstream use, and domestic (“natural”) use of water trumps the commercial (“artificial”) use of it.
Duty to repair and maintain easements
An easement holder has a duty to repair and maintain the easement. If the easement is shared by other easement holders or the servient-estate owner, those parties are obligated to contribute to the reasonable costs of repairs and maintenance.
Fee simple determinable language
Durational: “so long as,” “during,” “until”
Fee simple absolute language
“To A” and “To A and his heirs”
Fee simple subject to condition subsequent
Conditional: “but if,” “provided that,” and “unless”
Adverse possesion
An adverse possessor can acquire title to land owned by another if his/her possession of the land is: OCEAN
-Open and notorious (apparent or visible to a reasonable owner)
-Continuous (uninterrupted for the statutory period)
-Exclusive (not shared with the owner)
-Actual (physical presence on the land)
-Non-permissive (hostile and adverse to the owner)
What happens when land is adversely possessed by two or more persons?
The possessors acquire a concurrent ownership interest as tenants in common. Since a tenancy in common has no right of survivorship, a co-tenant’s ownership interest will pass to his/her heirs if the co-tenant dies intestate.
Statute of Frauds for Ks for the sale of land
Under SOF, Ks for the sale of land (real estate Ks) are enforceable only if they are in writing, are signed by the party against whom enforcement is sought, and contain all essential terms, which are: (1) the identity of the parties, (2) words of intent to buy or sell, (3) a description of the property, and (4) the sales price.
Even though courts may liberally construe the property-description requirement, the writing must contain some evidence of the specific property to be sold.
What requirements must a valid deed meet?
A valid deed (a document that conveys an interest in real property from the owner to another) must:
-be in writing and signed by the grantor
-identify the grantor and the grantee
-contains words of transfer (deed over, transfer, give, etc.)
-describe the property interest being transferred
Note: if the deed transfers to a nonexistent grantee (e.g., a corporation that has not been legally formed), the deed is void and the property interest remains with the grantor
Breach of implied warranty of habitability
To claim a breach of implied warranty of habitability, the tenant must:
-provide the landlord with notice; and
-allow the landlord reasonable time to repair the problem
Assignment vs. sublease
Assignment: tenant transfers all of the remainder of the interest (rental obligation) to a new party
Sublease: tenant transfers less than the entire interest in the contract
What is marketable title?
Marketable title is title that is reasonably free from doubt and under no threat of litigation such that a reasonable person would accept and pay for it.
Tenancy by the entirety and partition actions
A tenancy by the entirety is a type of cotenancy available only to married couples. As a result, the TBE terminates upon divorce and becomes a tenancy in common. While tenants in common can unilaterally request a partition, a TBE can only be partitioned if both spouses consent.
Equitable servitude
Covenants regarding land that are enforceable in equity (by injunction) against the promising parties and their successors in interest. Typically express, but one can be implied from a common scheme in a planned subdivision if three elements are met:
-intent to create common scheme
-restrictive servitude
-notice
