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Flashcards in Real Property Deck (63)
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What is the Rule Against Perpetuities?

Any future contingent interest must vest within the time of a life named or implied in the instrument plus 21 years.

"Life in being" plus 21 years


What is an Unconstitutional Exaction?

Occurs when a government requires amenities (street lights, parks, meters) in exchange for permission to build.

These requirements are subject to a Rational Basis Review: exactions must be reasonably related to the nature and scope of the proposed development.


When May a Variance Be Granted From a Zoning Code?

A state or municipality may reasonably control land use under its general police power.

A variance may be granted if the proponent demonstrates 1) an undue hardship; 2) the variance won't create a detriment to the surrounding property values.

A non-conforming use is use of a parcel that was once legal but a new zoning ordinance has made it non-conforming. Such a use cannot be eliminated immediately without triggering the constitutional taking and eminent domain process.


What Rights do Property Owners Have to Surface Water?

At common law, a land owner may change the direction of drainage on his land so long as he does not cause unnecessary harm to others' property.


What Rights do Property Owners Have to Ground Water?

A surface owner is entitled to make reasonable use of ground water, but such use must not be wasteful.


What is the Theory or Doctrine of Prior Appropriation?

An individual may acquire riparian rights by being the first to beneficially use or divert a water source if no on else has a claim to it. This includes un designated, unclaimed state property.


What are a Property Owner's Riparian Rights?

Water belongs to those who own the land bordering the water's course. Each owner shares the right to reasonable use. Natural uses take priority over unnatural uses. An owner is liable to another for unreasonable interference.


What is the Right of Lateral and Subjacent Support in California?

Improved fixtures on land that collapse because of an adjacent owner's excavation are only reimbursable in the event of negligence.

Strict liability will attach if plaintiff shows that the subsidence would have occurred even if no structures were present on plaintiff's property.


What is the Statutory Right of Redemption?

CA statute providing mortgagor the right to redeem a property after a foreclosure sale for (?) days.


What is the Equitable Right of Redemption?

At any time prior to foreclosure sale, the mortgagor has the right to redeem the land by paying the mortgage. Foreclosure is the process that eliminates or forecloses this right. The right is exercised by making missed payments, interest, and costs associated with the foreclosure proceeding.


What is a Purchase Money Mortgage?

Mortgage given to secure a loan that enables mortgagor to acquire the land or property. Purchase money security interests always take priority over non-purchase money security interests.

An acquired collateral clause permits a mortgagee to take a security interest in the mortgagor's estate including later-acquired property.


What is the Order of Payment after a Foreclosure Proceeding?

Junior creditors are paid in descending order. All creditors and mortgagor are necessary parties; their claims survive foreclosure if not included in the proceeding.

Attorney's fees and interest are paid before anything else. A foreclosure does not affect security or debt interests senior to the mortgage.


How Does a Party Qualify as a Holder in Due Course?

To qualify as a HIDC, the note must we Negotiable and made payable to the named creditor; the note must be Indorsed and signed by the named creditor; the original note must be Delivered to the named creditor; and the creditor (transferee) must pay Value over a nominal amount.


What are the Consequences of a Transfer of a Mortgage by a Mortgagor?

If a buyer has assumed a mortgage, the buyer is primarily liable for the debt and the transferor is secondarily liable.

If the buyer takes subject to the mortgage, only the transferor is liable for the debt. Thus, if the transferor doesn't pay, the house may still be foreclosed on, and the transferor will be in breach of the sales contract.


What are the "Real Defenses" Available to a Mortgagor?


Material alteration; disability; fraud in the factum; incapacity; illegality; infancy; insolvency


What is a Bona Fide Purchaser?

Purchases property 1) for value that is substantial consideration 2) without notice that another had a previously claim to the property.

In a notice jurisdiction, the BFP will always get her property. In a race notice jurisdiction, the first BFP to record will get valid title.

A BFP may receive notice by AIR (actual, inquiry, record)


What is a Wild Deed?

A wild deed is one granted by an individual who has no title to the land.

A wild deed is incapable of providing record notice because the grantor is unconnected to the chain of title.


What is Estoppel by Deed?

One who conveys property in which he has no interest is estoppel from denying the validity of the conveyance if he later acquires an interest that he has power to convey.


What is the Shelter Rule?

One who receives title from a BFP will prevail against another that the transferor BFP would have prevailed against.

A BFP transfers her BFP status to the transferee.


What are the Characteristics of a Mortgage?

Conveyance of a debt secured by land intended as collateral. Mortgagor has right to possession and title. Mortgagee has a lien on the title and the right to receive payments. Mortgagee may transfer by indorsing the note or executing a separate assignment. The transferee of this transaction would then be a holder in due course.


What are the "Personal Defenses" Available to a Mortgagor?

Lack of consideration; fraud in the inducement; unconscionability; waiver; estoppel.

A holder in due course takes free from any of these defenses.


What are the Characteristics of a Special Warranty Deed?

Grantor makes 2 promises on his own behalf:

1) he has not conveyed title to anyone else other than the grantee;

2) the estate is free from any encumbrance made by the grantor.

CA statute:


What are the Characteristics of a General Warranty Deed?

Grantor covenants 1) seisin (ownership);

2) he has the power to convey and no restraints on that power;

3) there are no encumbrances on the property;

4) grantee will have quiet enjoyment;

5) grantor will warrant against Future claims;

6) grantor promises to make Further assurances and take steps to perfect an imperfect interest.


What is Accomplished by a Quitclaim Deed

Transfers whatever ownership the owner has to the transferee.

Provides an Implied warranty of marketable title for closing, but besides that grantor only gives grantee whatever title he owns.


What Must Be Present for a Closing Deed to be Valid?


Lawful execution (signed and in writing);

reasonably accurate description;

delivery of deed (legal or physical, by escrow, etc.)

Grantee may reject delivery and invalidate the closing deed.


What is a Property Owners' Duty to Disclose Defects in the Property?

A seller of property must not make false statements of material fact regarding the property and must disclose latent defects that he knows of.


What is the Implied Warranty of Title?

Conveyed title must be free from reasonable doubts as to marketability (such as litigation or the threat of it).

This implied warranty arises in 3 situations:

violation of zoning ordinance without a non-conforming use;


adverse possession.


Who bears the Risk of Loss in a Real Property a Transaction?

Is on the buyer. If real property is destroyed between the contract signing and the closing through neither party's fault, buyer loses land and money unless the contract provides otherwise.


What is the Doctrine of Part Performance?

A court will issue a remedy of specific performance for an oral contract for sale of real property if 2/3 of the following occur:
1) Plaintiff takes Possession;

2) Plaintiff Pays all or part of the purchase price;

3) Plaintiff makes substantial Improvements


What are the Requirements of the Statute of Frauds?

Contract for sale of land must 1) be in writing; 2) be signed by the party to be bound; 3) accurately describe the land; and state some consideration to be paid.