real property Flashcards
(126 cards)
1
Q
fee simple absolute
A
“to A” or “To A and his Heirs”
- absolute ownership of potentially infinite duration
- freely alienable, devisable, and descendible
- A LIVING PERSON HAS NO HEIRS
2
Q
fee simple determinable
A
“to A so long as…” “to A during…” “To A until…”
(fee simple with a catch)
-if the stated durational condition is violated, then the forfeiture is AUTOMATIC
- devisable, descendible, and alienable
-ALWAYS SUBJECT TO THE CONDITION
3
Q
future interest which accompanies a fee simple determinable
A
the grantor gets the possibility of reverter!!!!
FSDPOR–> (FRANK SIANTRA DOESN’T PREFER ORVILLE REDENBAUKER)
-forfeiture is automatic
4
Q
fee simple subject to condition subsequent
A
“to A, but if X event occurs, grantor reserves the right to re-enter and retake”
- grantor has the right of re-entry and the power of termination (Britney Spears– it’s the grantor’s prerogative)
- future interest = the right of re-entry and termination
5
Q
fee simple subject to executory limitation
A
“To A, but if X event occurs then to B”
- now B, a third party will take if forfeiture occurs
- B (third party) will have a shifting executory interest
- A has a fee simple subject to B’s shifting executory interest
- if condition is broken, the forfeiture is automatic in favor of someone other than the grantor
6
Q
fee simple language
A
words of mere desire, hope, or intention are insufficient to create a defeasible fee
- “for the purpose”
- “with the hope that”
- “with the expectation that”
7
Q
can the grantor place an absolute restraint on alienation?
A
NO! ABSOLUTE RESTRAINTS ON ALIENATION ARE VOID
- an absolute restraint on alienation is ab absolute ban on the power to sell or transfer, that is not linked to ANY reasonable time-limited purpose
- “To A, so long as she never attempts to sell”
- -A would have a fee simple absolute
- -Grantor (o) would have nothing!
8
Q
the life estate
A
“To A for life”
- an estate that must be measure in explicit lifetime terms (never in terms of years)
- think of romantic Valentine’s Day (for life)
- A = the life tenant
- O grantor = a reversion
9
Q
life estate pur autre vie
A
a life estate measured by a life of other than the grantee’s
- “To A for the life of B”
- if the future interest is held by O the grantor= reversion
- if the future interest is held by a third party = remainder
10
Q
what are the characteristics of the life tenant?
A
- the life tenant is entitled to all ordinary uses and profits from the land
- the life tenant must not commit waste
11
Q
What are the three types of waste that a life tenant must not commit?
A
- Voluntary waste–> actual, overt conduct (destruction)
- Permissive Waste–> when the land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land (neglect)
- Ameloriative waste–> life tenant must not engage in acts that will enhance the property’s value, unless all future interest holders are known and consent
12
Q
voluntary waste
A
- general rule: the life tenant must not consume or exploit natural resources on the property (such as timber, oil, minerals) UNLESS ONE of 4 exceptions apply
EXCEPTIONS: (PURGE)
1. Prior use–> prior to the grant of land, the land was used for exploitation (for mining prior use– limited to the mines ALREADY open)
2. Reasonable repairs–> life tenant may consume natural resources for reasonable repairs and maintenance
3. Grant –> may exploit if expressly granted the right to do so
4. Exploitation–> when the land’s sole purpose is for excavating and exploitation
13
Q
Permissive waste
A
the life tenant must simply maintain the premises in reasonably good repair
- when income or value is generated from the property– then the life tenant must pay all the taxes to the extent of that additional valuable income
- when there is no income or value generated from the property– the life tenant pays taxes only to the extent of the premises’ fair rental value
14
Q
Reversion (future interest)
A
the future interest that arises in a grantor who transfers a estate of lesser duration than she started with
- ” O, the holder of a fee simple absolute, conveys “to A for 99 years.”
- O has conveyed less than what she started with
15
Q
What are the future interests called when it is in another person and not the Grantor?
A
- contingent remainder
- vested remainder
1. indefeasibly vested remainder
2. the vested remainder subject to complete defeasance
3. the vested remainder subject to open - executory interest
16
Q
contingent remainder
A
a remainder is contingent if :
1) it is created in an unascertained or unknown person
OR
2) it is subject to an unmet condition precedent
OR BOTH
1) created in an unascertained or unknown person
- “to A for life, then to B’s first child.” A is alive ad B has yet to have any children.
- “to A for life, then to B’s heirs.” A is alive. B is alive. Because a living person has no heirs, while B is alive his heirs are unknown
2) it is subject to an unmet condition precedent
- condition precedent when it appears BEFORE the language creating the remainder
- “To A for life, then, if B graduates from college, to B.” A is alive. B is now in High School.
- A has a life estate
- B has a contingent remainder
- O has a reversion
- -> if B graduates from college during A’s lifetime, then becomes an indefeasibly vested remainder
17
Q
Vested Remainders
A
- Indefeasibly Vested Remainder
- N’Sync NO STRINGS ATTACHED
- “To A for life, remainder to B.” A is alive. B is alive.
- B has an indefeasibly vested remainder because he is known and has no strings (conditions) attached
- If B predeceases A, at common law, B’s future interest passes by will or by intestate - vested remainder subject to complete defeasance (subject to total divestment)
- remainder man is known, and not subject to any condition precedent, BUT his right to possession could be cut short because of a condition subsequent
- “to A for life, then to B, provided, however, that if B dies under the age of 25, to C.” A is alive. B is 20 years old.
- A = life estate
- B= vested remainder subject to complete defeseance
- C= shifting executory interest
- If B is under age 25 at the time of A’s death, B still gets to take but he has to live to be 25 (or else C and his heirs take) - Vested remainder subject to open
- remainder is vested in a group of takers, at least one of whom is qualified to take possession
- “to A for life, then to B’s children.” A is alive. B has two children, C and D.
- C and D have vested remainders subject to open because they are part of a group that is capable of increasing in size
- a class is still open when others can still join
- a class closes when any member can demand possession
- a child IN THE WOMB when A dies will share possession with C and D
18
Q
Executory Interests
A
- Shifting executory interest –> always follows a defeasible fee and cuts short someone OTHER than the Grantor
- Springing Executory Interest –> cuts short the interest of Grantor
19
Q
Shifting Executory Interest
A
“To A, but if B returns from Canada sometime next year, to B and his heirs.”
- B has a shifting executory interest
- A has a fee simple subject to B’s shifting executory interest
- RAP does not apply because of the one year limit
20
Q
Springing Executory Interest
A
O conveys: “To A, if and when he marries.” A is unmarried.
- A has a springing executory interest, b/c if A marries, her interest will cut the Grantor’s interest short
- O has a fee simple subject to A’s springing executory interest
- does not violate RAP because we will know by the end of A’s life whether she has married or not
21
Q
Rule Against Perpetuities (RAP)
A
- that the given interest could vest more than 21 years after the death of a measuring life
1. determine which future interest have been created (contingent remainder, executory interests, and certain vested remainders subject to open)
2. determine what has to happen for the future interest holder to take
3. look for the people alive at the date of the conveyance whose lives and/or deaths are relevant
4. determine whether the future interest will vest within 21 years of the death of the measuring life
22
Q
Which future interests does RAP not apply?
A
- indefeasibly vested remainders
- vested remainders subject to a complete defeasance
- future interest capable of vesting in O (grantor)
23
Q
Reforms of the RAP
A
- “wait and see” –> the validity of any suspect future interest is determined on the basis of the facts as they now exist, at the conclusion of our measuring life.
- Uniform Statutory Rule against Perpetuities (USRAP) –> provides for an alternative 90 year vesting period
*** Cy Pres doctrine applicable to both= a court may reform it in a way that most closely matches the grantor’s intent, while still complying with RAP
24
Q
Adverse Possession
A
COAH (objective view point)
C: continuous– the possession must be continuous and uninterrupted for the statutory period
O: Open and Notorious– the sort of possession the usual owner would make under the circumstances
A: Actual– the entry must be actual and not sharing possession with the owner
H: Hostile– the possessor does NOT ave the owner’s permission to be there
25
Tacking on for adverse possession
- one adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity between the possessors
- privity = by any non-hostile nexus between the possessors
- no privity= when the possessor acquires possession by OUSTING his predecessor in possession
26
disability implicated in adverse possession
the statute of limitations will not run against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession
- insanity
- infancy
- imprisonment
27
what are the three Concurrent Estates?
1. the joint tenancy = two or more own with the right of survivorship
2. the tenancy by the entirety = a protected marital interest between spouses with the right of survivorship
3. the tenancy in common = two or more own without the right of survivorship
28
The joint tenancy
THE RIGHT OF SURVIVORSHIP
- share passes to the surviving joint tenant
- alienability = joint tenant can sell or otherwise give away her respective share
- NOT devisable or descendible (cannot pass through a will or intestacy because right of survivorship)
29
How do you create a joint tenancy?
(4 unities) T-TIP w/ clear expression of the right of survivorship
T: created at the same time
T: by the same title (same instrument)
I: with identical interests (interests have to be equal)
P: with the right to possess the whole
-- must use "straw man" to create joint tenancy so that the parties get possession at the same time and through the same instrument
30
how do you sever a joint tenancy?
SPAM:
S: Sale --a joint tenant may sell or transfer her interest during her lifetime (even without the other tenant's knowledge)
-- the buyer becomes a tenant at common b/c 4 unities destroyed
-- mere contract of entering into a sale will sever the joint tenancy
P: partition --
1. by voluntary agreement
2. partition in kind- judicial action for a physical division (farm land)
3. forced sale- judicial action for best interest of all parties (home or single building)
A: AND
M: Mortgage --either title theory (minority states) or lien theory (majority of states)
31
Title theory of mortgages
minority of states follow this
| - giving a creditor a lien is the equivalent of transferring title to that creditor
32
lien theory of mortgages
majority of states follow this
- a joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy
- in line with the reasonable expectations
33
tenancy by the entirety
can be created ONLY BETWEEN MARRIED PEOPLE
- contains the right of survivorship
- very protective form of co-ownership 9CANT TOUCH THIS song)
- creditors--> creditors of only one spouse CANNOT touch this tenancy for satisfaction of the debt
- unilateral conveyance--> one spouse, acting alone, CANNOT defeat the right of survivorship by unilaterally conveying to a third party
34
tenancy in common
- each co-tenant owns an individual part, and each has a right to possess the whole
- each interest IS devisable, descendible, and alienable (b/c NO RIGHT OF SURVIVORSHIP)
- when in doubt, the presumption favors tenancy in common because it does not escape probate
35
Rights of Co-Tenants
- Possession-- each co-tenant has the right to possess the whole (cannot exclude co-tenant or else that is OUSTER)
- Rent-- if one of the co-tenants leases all or part of the premises to a third party, he must account to his co-tenant the fair share of the rental income
- cannot acquire title through Adverse Possession because hostility element is missing (unless OUSTED)
- each tenant must pay his fair share of carrying costs (per his percent interest in the whole)
- REPAIRS--> if one co-tenant makes a reasonably necessary repair and puts the other co-tenant on notice of it, then he gets the right of contribution from that co-tenant
- Improvements--> one co-tenant's improvement could be the other's worst nightmare!!
- Waste--> a co-tenant must NOT commit waste
- Partition--> co-tenant has a right to bring an action for partition
- partition in kind, voluntary agreement, or partition in sale
36
Tenancy for years
-whenever you have a fixed, determined period of time
(Taylor Swift end game)
-"A leases Blackacre to B from January 1-July 1 2018"
-no notice to terminate is needed because terms tells you when it will end
37
Statute of friends for leases
a term of years greater than one year MUST be in writing to be enforceable
38
periodic tenancy
lease which continues for successive intervals until L or T give proper notice of termination
- "Taylor conveys to Calvin from week to week; from month to month"
- periodic tenancy can also arise by implication when no mention of duration but the payment of rent is set at intervals
- -termination by notice (usually in writing)
- -> must give notice in length at least equal to the interval itself (renting month to month-- must give one months notice EXCEPT for year to year leases only need 6 months notice!!)
39
tenancy at will
tenancy for no fixed period of duration
- "To T for as long as L or T desires"
- can be terminated by either party at any time but today probably after a reasonable demand to vacate the premises
40
tenancy at sufferance
created when the tenant has wrongfully heldover past the expiration of the lease
-last only until L either evicts T or decides to elect to hold that tenant to a new term of lease
41
Tenant's three primary duties
1. liability to third parties
2. duty to repair
3. duty to pay rent
42
Tenant's liability to third parties
tort law
- Tenant is liable for injuries sustained by third parties she invited, even where Landlord has expressly promised to make all repairs
- T can seek indemnification from L is third party sues T
43
Tenant's Duties to repair
1. T's duty to repair when lease is silent
- T must make routine repairs other than those due to ordinary wear and tear (ONLY NEED TO MAINTAIN THE PREMISES)
2. T's duty to repair when T covenanted in lease to make repairs
- common law--T was responsible for any loss to the property, including that from natural disasters such as hurricane and earthquakes
- majority view today-- T may end the lease when the premises are destroyed without the tenant's fault!
44
the law of fixtures
- when a tenant removes a fixture, she commits voluntary waste
- a fixture = a once movable thing, that by virtue of its attachment to the realty, objectively shows an intent to improve the realty (heating systems, furnace, lighting installations)
- FIXTURES PASS WITH THE OWNERSHIP OF THE LAND
- TEST:
1. any agreement between the Landord and Tenant is binding as to fixtures
2. Tenant may remove a chattel she installed as long as removal WILL NOT substantially harm the premises
- --> if substantial harm to the premises will result from the removal of the chattel-- then it's a fixture and stays with the property
45
Tenant's duty to pay rent
1. when T breaches duty to pay rent and is in possession of the property
- Landlords only options are to EVICT through the courts OR continue the relationship and SUE for rent owed
* *LANDLORD MUST NOT ENGAGE IN SELF HELP--> flatly outlawed and can be punishable civilly and criminally
2. T breaches duty to pay but is out of possession
- SIR
- S: Surrender-- can treat tenant's abandonment as a surrender
- I: Ignore the abandonment and hold the tenant responsible for the unpaid rent
- R: re-let the premises and old the wrongdoer tenant liable for any deficiency
* *majority rule: landlord must try to at least re-let because mitigates damages
46
Landlord's Duties
- implied covenant of quiet enjoyment
| - implied warrant of habitability
47
Implied covenant of quiet enjoyment
Tenant has a right to quiet use and enjoyment of the premises without interference from the landlord
-breach by either wrongful eviction of by constructive eviction
48
constructive eviction (breach of implied covenant of quiet enjoyment)
SING
SI: substantial interference-- chronic or permanent problem due to Landlord's actions or failures
N: notice-- tenant must give landlord notice of the problem and landlord must file to respond meaningfully
G: goodbye-- tenant must vacate within a reasonable time after landlord failed to fixe the problem
ex: every time it rains, the apartment gets flooded
49
is landlord liable for the acts of other tenants?
generally NO
- EXCEPTIONS:
- -Landlord has duty to abate a nuisance on site
- -landlord must control common areas
50
implied warrant of habitability
APPLIES TO RESIDENTIAL LEASES ONLY
- non-waivable because against public policy
- the premises must be fit for basic human dwelling (bear living requirements must be met)
ex: no heat in winter, no running water no plumbing
51
What are a tenant's entitlements when landlord breaches the implied warranty of habitability?
MR(3)
M: Move-- move out and end the lease (BUT TENANT DOES NOT HAVE TO MOVE OUT)
R: Repair--repair and deduct the repairs from future rent
R: Reduce-- reduce the rent or without rent until the court assess the premises fair rental value in view of the problems
R: Remain-- remain in possession, pay rent, and SUE for money damages
52
Assignment
when a tenant transfer his interest in whole (the entire lease)
- "T1 has 10 months left on his lease and he transfer the entire 10 months to T2."
- - the landlord and T2 are now in privity of estate
- - landlord and T2 are liable to each other for ALL covenants I the original lease that run with the land
* **Landlord and T2 are NOT in privity of contract because they never exchanged the original promissory words (Landlord and T1 remain in privity of contract!!)
- - which means if T2 fails to pay rent or is unavailable-- landlord can go after T1 for the damages
53
Once landlord consents to one transfer by tenant...?
landlord waives the right to object to future transfers by that tenant unless landlord expressly reserved that right to begin with
54
Sublease
when the tenant transfers LESS then her entire interstate to T2
- Landlord and T2 are NEITHER in privity of estate nor privity of contract here!!
- - the relationship between landlord and T1 remains FULLY intact here
55
landlord's tort liability under the common law
caveat lessee
| -- under common law, the landlord was under no duty to make premises safe
56
landlord's tort liability today
CLAPS!! (when tenant learns of these she claps from excitement)
C= Common Areas-- landlord must maintain common areas
L= Latent defects rule -- landlord must WARN tenant of hidden defects that landlord knows about or should know about (duty to warn; no duty to repair)
A= assumption of repairs-- once the landlord undertakes to make repairs, landlord must complete them with reasonable care (if done negligently- landlord is liable)
P= Public Use Rule -- landlord who leases a public space is liable for any defects on the premises (because of short duration of the lease of convention hall or museum)
S= short-term lease of furnished dwelling --- landlord is responsible for any defective condition which proximately injures the tenant
57
easement
a grant of a non-possessory property interest that entitles its holder to some form of use or enjoyment of another's land
1. affirmative easement --> the right to do something on servient land (the right to tap into neighbors drain)
```
2. Negative easements--> entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible (LASS)
L: light
A: air
S: support
S: stream water from an artificial flow
```
(minority of jx-- allow a negative easement for scenic view)
58
negative easements
can only be created expressly, by writing signed by the grantor
59
an easement appurtenant
when it benefits its holder in his physical use or enjoyment of his property (2 properties involved!!)
- -dominant tenement--land being benefited by the easement
- -servient tenement-- land serving the easement
60
an easement in gross
confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land (ONLY ONE PARCEL INVOLVED---SERVIENT TENEMENT)
-- the right to place a billboard in someone front yard or the right to fish in someone's lake
61
can an easement appurtenant be transferred?
yes!! it passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance or not
the BURDEN of the easement appurtenant also passes automatically with the servient estate UNLESS
-the new owner is a B.P. without notice of the easement
62
can an easement in gross be transferred?
NO, unless it is for commercial purposes
63
how do you create an affirmative easement?
```
PING
P: prescription
I: implication
N: necessity
G: grant
```
64
creating an affirmative easement by grant
an easement to endure more than 1 year must be in writing for statute of frauds
- the deed of easement
65
creating an affirmative easement by implication
"easement implied from existing use"
1. previous use must be apparent
and
2. the parties expected it to survive division because reasonably necessary to the now dominant land's use and enjoyment
66
creating an affirmative easement by necessity
when the grantor conveys part of his land with no way out except over part of the other part of grantors remaining land.
--guy's gotta be able to get to the road
67
creating an affirmative easement by prescription
COAH
C: continuous use for the given statutory period
O: open and notorious use
A: actual use (DOES NOT NEED TO BE EXCLUSIVE)
H: hostile-- without the servient owner's consent
*** permission defeats the acquisition of an easement by prescription
68
What are the ways in which to end an easement?
```
END CRAMP ("you wanna end them cramping your style")
E: estoppel-- servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced
```
N: Necessity--expire as soon as the necessity ends unless reduced to a writing in which case it will persist
D: Destruction -- destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement
C: Condemnation-- condemnation of the servient land by the gov. will terminate an easement
R: Release-- release given by the easement holder to the servient land owner will terminate the easement
A: Abandonment-- must have physical action by the easement holder --the intent to never use the easement again (mere non-use or words are insufficient here)
M: Merger--easement extinguished when tilt to the easement and title to the servient land are vested in the same person (easement not automatically revived upon re-sale)
```
P: Prescription--COAH
C: continuous interference
O: open and notorious use
A: actual use
H: hostile to the easement holder
```
69
license
a mere privilege to enter another's land for a certain purpose
- - does not need to be in writing
- freely revocable at any time unless estoppel applies (think about tickets to a game)
- -estoppel will bar revocation only when the licensee has invested substantial money, labor, or both in reasonable reliance on the license's continuation
70
profit
entitles its holder to enter the servient land and take from it the soil or some product of the soil
- -minerals
- -timbers
- -oil
- -> may be terminated the same way as an easement
71
restrictive covenant
- - a promise to refrain from doing something related to land
- -WHEN PLAINTIFF IS SEEKING MONEY DAMAGES
- -covenants will run with the land when they are capable of binding successors
72
When will the burden of a covenant run with the land??
WITHN
W: writing -- original promise between A and B was in writing
I: Intent-- the original parties intended the covenant would run with the land
T: Touch and concern the land -- the promise must affect the parties as land owners and not simply as members of the community at large (covenants for HOA and covenants not to compete DO NOT touch and concern the land)
H: Horizontal AND vertical Privity --
horizontal privity between A and B= requires that they were in a grantor/grantee; landlord/tenant; or mortgagor/mortgagee relationship when the covenant was created (SUPER HARD TO ESTABLISH)
vertical privity between A and A1= simply requires non hostility nexus
N: Notice -- A1 must have had notice of the promise when she took the land
73
When will the benefit pf the covenant run??
WITV
W: Writing-- the original promise between A and B must be in writing
I: Intent-- the original parties must have intended the benefit to run
T: Touch and concern the land-- the promise must affect the parties as land owners
V: Vertical Privity ONLY!
--requires some non hostile nexus between B and B1
74
equitable servitudes
-accompanied by injunctive relief
WITNES: to create an equitable servitude
W: Writing-- generally, but not always, the original promise was in writing
I: intent-- the original parties intended that the promise would be enforceable by and against the assignee
T: Touch and concern-- the promise affects the parties as land owners
N: Notice-- the assignees of the burdened land had notice of the promise
ES: Equitable Servitude
*** PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS TO AN EQUITABLE SERVITUDE
75
conveyancing
1. the land contract-- conveys equitable title
| 2. the closing -- the deed passes legal title
76
Exception to the statute of frauds for land contracts
(MUST HAVE TWO OF THE THREE BELOW)
1. B takes possession of the land
2. B pays all or significant part of the price
3. B makes substantial improvements to the land
77
who bears the risk of loss when a land contract is signed?
the buyer bears the risk of loss the moment the contract is signed (equitable conversion)
78
what are the two implied promises in every land contract?
1. the seller promises to provide Marketable Title
| 2. the Seller will not make false statement of material facts
79
Marketable Title
title free from reasonable doubt (free from lawsuits)
- -3 circumstances that will render title Unmarketable
1) adverse possession
2) encumbrances (servitudes and mortgages render title unmarketable unless buyer waives them)
3) zoning violations (title is unmarketable when Blackacre violates a zoning ordinance)
80
does a land contract include an implied warranty of fitness or habitability?
NO-- buyer beware!!
--EXCEPT: the implied warranty of fitness applies to the sale of a new home by the builder (the builder of the home sells it to you)
81
How do you pass legal title to the buyer of land?
LEAD
"Lawfully Executed And Delivered"
- deed must be signed by the grantor
- the description of the land just need to be unambiguous and provide a good lead
- the delivery can be satisfied when the grantor physically or manually transfers the deed to the grantor (TEST OF PRESENT INTENT ONLY)
82
what is the standard test for whether a grantor delivered a deed to land?
present intent
-- ask--> did the grantor have the present intent to be bound IMMEDIATELY regardless of whether or not the deed instrument itself was handed over?
*** reaction defeats delivery of a deed
83
What is a quitclaim deed?
contains NO COVENANTS (WASN"T ME)
- - worst deed a buyer could hope for
- - STILL contains promise to provide marketable title (only lasts up until the moment of closing and then dies right afterwards)
84
what is the general warranty deed?
the BEST deed a buyer could hope for (Mother Theresa)
--warrants against all defects in title including those due to the grantor's predecessors
1. present covenants (breached if ever at the time of delivery)
- the covenant of seisin--> grantor promises she owns the estate
- the covenant of the right to convey-->grantor promises she has the right to transfer title
- the covenant against encumbrances--> grantor promises there are no servitudes or liens on Blackacre
2. future covenants (breached if eve until the granite is disturbed in possession)
- covenant for quiet enjoyment--> grantee will not be disturbed in possession by a 3rd parties claim to possession of Blackacre
- covenant of warranty -->grantor will define grantee against any superior title claims
- covenant of further assurances--> grantor promises to do whats needed in the future to perfect the title it it turns out to be imperfect
85
What is the Special Warranty Deed?
provided for by statute in many states
--contains 2 promises the grantor makes ONLY ON BEHALF OF HIMSELF
1. grantor promises she hasn't conveyed Blackacre to anyone other than grantee (not a dirty double crosser)
and
2. the estate is free from encumbrances made by grantor
86
Notice Jurisdictions
If B is a bona fide purchaser, B will win if he was the last to show up REGARDLESS of whether or not she recorded before A
87
Race-Notice Jurisdictions
if B is a bona fide purchaser, B will win only if she records properly BEFORE A
88
what is a bona fide purchaser?
- someone who buys Blackacre for value
| - without notice (at the time of closing) that someone else got there first
89
how can you establish notice/no notice to be considered a bona fide purchaser?
1. Actual Notice --> prior to B's closing, B gets litcheral knowledge of As existence
2. Inquiry Notice-(constructive notice)--> whatever an exam of the land would show (whether B examined the land or not)
3. Record Notice (constructive notice)--> if at the time B takes, A's deed was properly recorded within the chain of title
90
Notice Statute Language
"...UNLESS THE CONVEYANCE IS RECORDED"
| -- therefore the last BFP to enter wins
91
Race-Notice Statute Language
"...WITHOUT NOTICE THEREOF, WHOSE CONVEYANCE IS FIRST RECORDED"
--therefore must be a BFP and record first to win
92
Chain of title problems
1. the shelter rule
2. the problem of the wild deed
3. estoppel by deed
93
the shelter rule (chain of title problem)
O conveys to A, who does not record. O later conveys to B, a BFP, who records. B then conveys to C, who is a mere donee or who has actual knowledge of the O to A transfer.
-- C would win in both a race and race notice jx because C would step into the shoes of B (a BFP who recorded first)
94
the Wild deed (chain of title problem)
O sells Blackacre to A, who does not record. Then, A sells to B. B records the A to B deed.
- -missing the link in the chain of title!!
- -rule: if a deed, entered on the records (A to B) has a grantor unconnected to the chain of title (O to A) the deed is a wild deed and is INCAPABLE OF GIVING RECORD NOTICE
--O, the dirty double dealer, then sells black acre to C.
-C would prevail over B in either race or race-notice jx because C is last BFP to enter and wins race to record
95
Estoppel by deed (chain of title problem)
in 1950 O owned Blackacre. O was thinking about selling it to X but never did. X, didn't own Blackacre, but decided to sell it to A anyways. A records.
in 1960, O finally sells black acre to X. X records.
in 1970 X, dirty double dealer, sells Blackacre to B. B records.
-- in 1960--> A would own black acre because of estoppel by deed
rule: one who conveys realty in which he has no interest (X to A) is estopped from denying the validity of that conveyance if he subsequently acquires title that he previously had transferred (O to X sale)
BUT.. B owns black acre in 1970 as long as he is a BFP and records (because his title search would not find A's record)
96
debtor
borrower (mortgagor)
97
creditor
lender (mortgagee)
98
purchase-money mortgage
when the lender takes as collateral an interest in the very real estate that the loan money enables the debtor to acquire
99
non-purchase money mortgage
when the borrower uses the money for purposes OTHER than purchasing the property that the lender's interest is tied to
(grant the bank an interest in their hoe to help finance their children's education)
100
does the mortgage have to be in writing ?
```
yes.
the mortgage typically has to be in writing to satisfy the statute of frauds
--legal mortgage
-- note
--mortgage deed
---deed of trust
```
101
equitable mortgage
when you hand the creditor (lender) a deed to the land Blackacre in exchange for the money lended
102
who may properly transfer their interests in a mortgage
all parties can transfer their interests in a mortgage
| -- the mortgage automatically follows a properly transferred note
103
how can the mortgagee (lender) transfer his interests in a mortgage?
1. by indorsing the note and delivering it to the transferee
or
2. by executing a separate document of assignment
- - the transferee then becomes A HOLDER IN DUE COURSE
- -> a holder in due course takes that note free of any personal defenses that could have been raised against the original creditor
104
what may the holder in due course do?
- may foreclose the mortgage despite the presence of any such personal defenses
- he is still subject to real defenses that the debtor might raise such as: (MAD FIFI4)
MA: material alteration -- a change in the instruments terms
D: duress--
FIF: fraud in the factum-- a lie about the instrument
I: incapacity
I: illegality
I: infancy
I: insolvency
105
what are the requirements for a holder in due course?
to be a holder in due course, the following must be met:
1. the note must be negotiable
2. the original note must be indorsed (signed by the mortgagee)
3. the original note must be deliered (photocopy is unacceptable)
4. the transferee must take the note in good faith
5. the transferee must pay value for the note (consideration!!)
106
if O, the debtor/mortgagor, sells the land, does the lien stick?
YES!! the lien sticks with the land as long as the note was properly recorded
107
who is personally liable on the lien (debt) when O sells Blackacre?
- -> if B has "assumed the mortgage"--> then O and B are personally liable for the lien
- - B is primarily liable
- - O is secondarily liable
- -> If B takes "subject to the mortgage"--> O is the only personal liable party (B assumes no personal liability
- - but if the mortgage is recorded, the mortgage stays on the land, and thus, if O does not pay, then the mortgage can be foreclosed
108
Foreclosure
the mortgagee must foreclose by proper judicial proceeding
- -if there is not enough to satisfy the debts of the forfeiture then the mortgagee can bring a personal deficiency judgment against the debtor
- - if there is a surplus from the foreclosure, then after every junior lien is paid, the debtor gets the leftover monies
taken off the top of the foreclosure sale price is:
- attorney's fees
- foreclosure expenses
- any accrued interest on the foreclosing mortgage
- then all of the mortgagees are paid off in order of priority
109
What is the effect of foreclosure on junior interests?
foreclosure will terminate interests junior to the mortgage being foreclosed but will NOT effect senior interests
- -then those junior lien holders can no longer look to Blackacre to satisfy their debts
- -junior lien parties must also be NOTIFIED of the suit and added as NECESSARY PARTIES to the suit ---> failure to include a necessary party results in the preservation of that party's claim to Blackacre despite the foreclosure and sale
110
what effect does foreclosure have on senior interests?
NONE
- - senior interests will stay with the land when it is sold
- -senior interests will have the right to foreclose the land if the OG landowner does not pay off the debt (much to the new landowner's dismay)
- - therefore the new buyer should only bid as high as he will have money left over to pay off the senior mortgages on the land (at the foreclosure sale)
111
Priorities of creditors
YOU MUST RECORD YOUR MORTGAGE TO HAVE PRIORITY!!
- - priority is determined by first in time- first in right
- -> EXCEPT: purchase-money mortgages have super priority as to the foreclosure of the land that their debt money was used to finance (IF THEY RECORDED)
112
redemption in equity
prior to the foreclosure sale, a debtor has the right to redeem the land and free it of the mortgage (pay off the mortgage)
-- would need to pay off the missed payments plus any accrued interest
113
acceleration clause of a mortgage
permits the mortgagee to declare the full balance, plus accrued interest, plus costs due from the debtor in the event of a default on the mortgage
114
may a debtor/mortgagor waive the right to redemption?
NO-- this is void as against public policy
| --clogging the equity of redemption is prohibited
115
what is statutory redemption?
- recognized in one half of the states
- allows the debtor/mortgagor a statutory right to redeem for some fixed period AFTER the foreclosure sale has occurred
- - debtor would pay the foreclosure sale price rather than the amount of the original debt
116
lateral support rule
if land is improved by buildings and an adjacent land owner's excavation causes that improved land to cave in--> the excavator will be liable ONLY IF NEGLIGENT
117
when does strict liability apply to lateral support rule?
strict liability will apply where the plaintiff can show that the improvements on her land (shrubs, structures, fountains) did NOT contribute to her land's collapse
118
What are the two doctrines of water rights?
riparian doctrine and prior appropriation doctrine
119
riparian doctrine
- the water belongs to those who own the land bordering the water course
- these people are called "riparians"
- - riparians share the right of reasonable use of the water
- -one riparian will be liable to another when his use reasonably interfere with the other's use
120
prior appropriation doctrine
- the water belongs to the state but then is determined by priority of who puts the water to beneficial use
- - normally first in time, first in right
- -any productive or beneficial use of the water, including for agriculture, is sufficient to create the appropriation right
121
what are the surface owner's rights to groundwater?
--the surface owner can make reasonable use of groundwater but that use must not be wasteful
122
surface water rule
- -those waters which come from rain, springs, or melting snow
- -"common enemy rule"--> a land owner may change drainage or make other changes to fight the flow of surface water
- -many courts prohibit harm to a neighbors land tho
123
what is a variance
- -it allows for an owner of land to depart from a zoning ordinance
- -the plaintiff must show undue hardship and that the variance won't cause a drop in value to neighboring property values
- -variance is granted or denied by administrative action (zoning board)
124
what happens when a once lawful use of the land is now deemed unlawful per a new zoning ordinance?
--cannot eliminate the once lawful use without just compensation otherwise it would be an unconstitutional taking of private land
125
cumulative zoning
creates a hierarchy use of the land
--single family home is the highest use
--may be used for that use and any use higher in the hierarchy
126
noncumulative zoning ordinance
--land may be used only for the purpose for which it is zoned
