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Property Law
| Question | Answer |
|---|---|
| Property Definition | Property is a legal right among persons with respect to things. |
| The Bundle of Sticks | Aggregation of rights in a particular piece of property is often referred to as the "bundle of sticks". Property rights are relational. Includes 5 rights to property. |
| The Bundle of Sticks (5 Rights to Property) | 1)the right to possess or occupy, 2)the right to use or exploit, 3)the right to exclude others. 4)the right to transfer (by sale, gift, will, etc).) and, 5)the right to modify or destroy |
| Theories of Property Law (5) | 1)Economic efficiency, 2)Fairness, 3)Certainty, 4)Personhood, and 5)Democracy |
| Economic Efficiency | Protection of property gives people an incentive to produce and therefore leads to wealth maximization for society. Used to refer to the use of resources such as water or land in the manner that will maximize economic benefits. |
| Communal Property System | a group of ppl hold property rights in common in this system |
| Tragedy of the Commons | (Hardin) 3 aspects: 1)depletable, 2)excludable, 3)right to use, but no right to exclude. Externalities: defined as either a cost or benefit that the person taking the action does not have to consider. |
| Avoiding Tragedy of the Commons | private property rights, gov regulation. altruism (acting for the benefit of everyone), right to the resource to the ppl, trustee. |
| But do private property rights internalize all externalities? | No, transaction costs (which include any impediments that must be overcome to achieve a certain result), poorly defined property boundaries, and the nature of certain externalities can prevent complete internalization in all cases. |
| Fairness | A reward for labor spent in creating or improving property. Moral case for property ownership. Ex; Alice cuts down a tree in a communal forest, and turns it into a coffee table, she has increased its value due to her labor and therefore has a right to it. |
| Inheritance & Labor Theory | rights and benefits to something (property) you put labor into especially for a positive societal outcome. |
| Real Property | land and anything attached to or appurtenant to the land (immovable!) |
| Personal Property | all property other than real estate like your furniture, bank account, car, etc. (movable) |
| Certainty | Purchasers can easily determine that seller is the rightful owner of a particular piece of property and therefore lower costs of transactions. Property rules should be clear and easy to administer. Secure property rights to promote peace and order. |
| Positivism | (Bentham): property rights arose to serve human needs such as security, peace, and order and should be recognized only to the extent that they serve those ends. |
| Personhood | owning property allows ppl to express themselves and often has sentimental value attached. Autonomy. |
| Democracy | unless ones property is protected, all other freedoms may become meaningless. A nation of property owners provides stability and more ppl have stake in maintaining the rule of law. |
| 1st Cardinal Rule of Property Law | a social construct; property is a body of law that creates, protects, or denies rights for some ppl in something. This is why we recognize property rights in law! |
| 2nd Cardinal Rule of Property Law | when someone/thing obtains rights through a property law regime, someone/thing simultaneously is divested of rights. Property rights are relational, can be divided into 'sticks', and change over time. |
| 3rd Cardinal Rule of Property Law | Property rights are not and cannot be absolute. |
| Right to Transfer | physical thing but also the things property rights; transfer of rights |
| Right to Exclude | exercise your rights in a way to stop others from exercising their property rights. |
| Ad Coelum Doctrine | A person owns the property rights from the bottom of their land to the sky. Not an absolute right; Ex; (United States vs. Causby- gov. said that airspace must yield for gov/airplanes) |
| Unowned | 'res nullis', law of the finders. Common theme: importance of possession in establishing a legal right to property. Must be unowned property for law of capture to apply. |
| Adverse Possession | Statute of limitations on property rights. Violates right to exclude. Elements: 1)Actual entry, 2)actual entry gives exclusive possession, 3)possession is open & notorious, 4)continuous possession (tacking), 5)adverse & hostile under claim of right |
| Rule of Capture | governs the allocation of res nullis or owned property and awards ownership to the first possessor! |
| Pierson vs. Post | Property rights come about when someone wounds an animal when hunting it; this case gave us the rule that "Property rights procure under complete dominion and control by a person" |
| Constructive Possession | "being in a position to exercise dominion or control over a thing" (deemed to be in possession by law) |
| The Right to Destroy | usually always able to destroy your property as you see fit; in some exceptions you may not be able to (historic home case) |
| Finders Rule | Property is up for grabs until the true owner claims it. A person who finds lost property has an ownership interest in it superior to anyone else except the true / rightful owner of the property. |
| Locus in quo | place where the item is found males a big difference concerning the finders rule and apply it to property. |
| Hannah vs. Peel | Rule we derive from this case is that finder of lost chattel on another property has rights to that chattel super to the rights of the property owner (owner of the house in which the item was found). |
| Abandonment/ Abandoned Property | Owner has voluntarily relinquished the rights to the property and finder obtains ownership against all others including the former owner who abandoned it. Elements: 1)physically vacating/leaving property and 2)lacking intent to return to the property |
| Lost Property | owner unintentionally and involuntarily parts with property. Finder obtains title subject to the rights of the original owner. |
| Mislaid Property | Owner voluntarily and intentionally places the property somewhere and then forgets where it is; owner of the locus quo (place where item is found) obtains rights to property against all but true owner of property. |
| Treasure Trove | Intentionally and concealed long ago property; including coins, gold, jewels, etc. |
| Bailment | A bailment is created when one person has possession of the personal property of another for some particular purpose. The bailment may be for the benefit of the bailor, or for the benefit of the bailee, or both. |
| Involuntary Bailment | For example when someone comes to your house for dinner and leaves w/o their purse, you have become an involuntary bailee. *Distinguishing between the types of bailments in determining the duty of care owed by the bailee is how courts judge liability ! |
| Voluntary Bailment | The bailee agrees to accept the property. |
| Gift Elements | 1)donative intent, 2)delivery of the gift to the donee, 3)acceptance of the gift by the donee. (There are then 3 methods of delivery) |
| Gift Methods of Delivery (3) | 1)Manual- actual physical transfer of the property, 2)Constructive- giving control (like a key to a car) over the property rather than the item itself, and 3)Symbolic- something that represents that gift (like a pic of the item) this is a last resort |
| Gift inter vivos | A irrevocable gift once its completed/given. |
| Gift causa mortis | A gift made in the contemplation of death and may be revoked if donor recovers. If revocable; elements include intent, delivery, acceptance, PLUS donor anticipation and donor death. |
| Intestate | dying w/o a will. |
| Privity | means some kind of legal relationship between people. |
| Concurrent ownership | When two or more people own a property at the same thing! Dividing ownership of the rights in the property. |
| 3 Types of Concurrent ownership in current use: | 1)Tenancy in Common, 2)Joint Tenancy, 3)Tenancy by Entirety |
| Tenancy in Common | Is the default form of co-tenancy and is created by a conveyance or devise to two or more ppl that does not create either a joint tenancy or a tenancy by the entirety. No will. Result of severance no right of survivorship. |
| Joint Tenancy | This form includes largely time, title, possession and interest. *Magic words, .." as joint tenants w/ rights of survivorship". Mistake results in tenancy in common. Intent and preferred language. |
| Tenancy by Entirety (TBE) | Exists only between married co-owners. Created by a conveyance, "a married couple as tenants by the entirety". Time, title, possession, interest, and MARRIAGE! Right of survivorship. No unilateral severance both spouses must act one cannot act alone. |
| Four Unities | Time-acquire interest in the property at the same time , title,-acquired interests by same instrument, interest-same type of interest for same duration, and possession-equal rights to possess the whole rather than say separate parts of the estate. |
| Probate | Legal process of proving validity of a will or determining heirs and distributing the decedents estate after paying claims against it. Process is lengthy. Creditors must be notified & court must enter orders. Formal estate distribution approval. |
| Severance | Action of a joint tenant that coverts the joint tenancy into a tenancy in common. Right to survivorship is severed from the estate- any action that destroys one of the four unities will effect a severance bc joint tenancy cannot exist if unities broken. |
| Partition | Ends co-ownership of property and divides the property between the co-owners. Applies to any of the forms of co-ownership. Right to partition at anytime. In absence of an exception only ? is how to divide property up. |
| Partition in kind | Actual or physical partition in which the property is physically divided into pieces and given to each co-tenant as separate property. |
| Partition by sale | Property is sold by the court and the proceeds divided among each co-tenant are divided according to the ownership shares. |
| Judicial partition | If parties cannot agree on an equitable division this type of partition may be obtained. |
| Law favors partition in kind (true or false) | True |
| Owelty Defined | equitable remedy of owelty can be used by courts to make partition in kind possible in many cases. Refers to a sum of $ paid to ensure that each party receives an equal share of property; used when not possible to equally divide the property. |
| Lien Theory State | a mortgage is treated as a lien or encumbrance rather than a transfer of title. Because no title transfer occurs, the four unities of a joint tenancy remain intact, and the joint tenancy is preserved. |
| Title Theory State | a mortgage is considered a transfer of title. When one joint tenant mortgages their interest, they effectively transfer their ownership rights to the mortgagee Transfer breaks the four unities, , results in the severance of the joint tenancy. |
| A TBE cannot be partitioned unless BOTH spouses consent (True or False) | True |
| Limited exceptions to partition include: (2) | 1)partition can be denied if it would violate public policy and 2)Deed or will creating the co-tenancy may prohibit partition (courts generally uphold such provisions as long as they are of reasonable duration) |
| Ejectment | Ejecting or ousting to secure or recover possession of real property by a true owner. |
| Easement | right to cross or otherwise use someone else's land for a specified purpose. |
| Affirmative easement | allows someone to use another persons land for a specific purpose |
| Negative easement | prevents property owner from doing certain things on their land. Promise not to do something with a certain piece of property. |
| Ouster | Ouster is refusing a demand by the other cotenants to be allowed to use and enjoy the land. |
| Constructive Ouster | When a co-tenant is prevented from using property due to the relationship between the co-tenants or property itself. |
| Waste | Waste is when a tenant damages or alters the value of a property. Co-tenant may seek an injunction against or compensation for actions of other co-tenants. |
| Community Property | Minority system; treats the earnings of the either spouse or property purchased w/ those earnings as jointly owned, regardless of how it's titled. |
| Separate Property | Common law approach, most jurisdictions use this system. Upon marriage each spouse may continue to hold and manage separate, titled in his/ her sole name. Rights of asset will be determined only upon death or divorce. |
| Commingled | With community property or by being used in the marriage. Mixed or blend from one party w belonging to another person. |
| Dower | originally a protection for a wife in the event of her husband's death. To allow the wife to continue receiving support from the estate upon the husbands death regardless of his provisions of his will. 1/3rd of the life estate in all inheritable property |
| Curtsey | Similar protection as dower gave the husband a share of his wife's property at her death. |
| Elective Share | replaced older dower and curtsey rights in most separate property states. The basic idea is that on the death the surviving suppose is entitled to take a certain share of the deceased spouses estate regardless of the provisions of the will. |
| Inchoate | During the life of the husband he must die for her to actually gain the interest. |
| Prenuptial Agreement | settle ahead of time the expectations of the parties in the event of divorce or death. |
| Postnuptial Agreement | Harder to enforce bc consideration of the marriage doesn't exist at this time. Public policy pushes the enforceability os postnuptial agreeements however! |
| Time (Estates & Future Interests) | Often a property owner wants to give property to one person now; but then have the property go to another person or persons in the future; thus property rights need to be divided temporally by time between present & future owners |
| Life Estate | Ensures property goes to someone else if they outlive the person initially given the property for the remainder of their life. |
| Remainder Defined | It is the right to own and possess the land after the fixed interest of current holder expires. |
| Estate (2 definitions) | 1)property decedent owns at death and 2)refers to a possessory interest in land |
| Future Interest | idea that a person has something, a property interest, right now even tho she will not take possession of it until some time in the future. |
| Will | Legal instrument by which a person directs how his/her property is to be distributed at dear. Each jurisdiction had statutory requirements for valid execution of a will. |
| Testator | Any person who makes a will. |
| Devise | Gift of real property in a will. |
| Executor | Person named in the will and is appointed by the court to carry out its provisions. In intestacy or when the named executor cannot serve, court will appoint an administrator. |
| Intestate Succession | Distribution of the estate of a person who dies w/o a will |
| Issue | Any descendants of the decedent. The issue typically takes per stripes which means that a predeceased child's share would be split among her children. |
| Ancestor | Any predecessor in the family lineage, such as a parent, grandparent, etc. |
| Collateral | Descendant from the same ancestor. Take according to the degree of the relationship- sibling would aka before aunts and uncles, who would take before cousins. This word has multiple meanings in different contexts. |
| Escheat | If there are no heirs at law the intestate estate goes to the state treasury. |
| Revocation | Testator may revoke a will in many states either by drafting a will or by a physical act such as tearing it up or making a will |
| Deed | transfers ownership of real estate or other property assets from one party to another, proving ownership and serving as evidence of the transfer. .Once a deed is signed and delivered it may not be revoked by the grantor. |
| Fee simple absolute | Most complete estate, lasts forever. No future interests at all. Words to create: "to A" or "to A and her heirs". |
| Fee Defined | continue forever |
| Simple Defined | no limitations; alienable |
| Reversion (Reverter) Defined | Requires specific use of specific to indicate conveyance, a future interest retained by a grantor after conveying a lesser estate than their own, meaning the property automatically returns to the grantor when the lesser estate ends |
| Alienable | Life tenant may sell or give the estate to someone else. Property subject to a life estate is hard to buy or sell bc a purchaser will have to obtain both the present and future interests. |
| Successively | Means immediately one after another. |
| "W/o impeachment for waste" | This statement generally leaves the life tenant free to add w the property w/o interference or second guessing of management decisions by the remaindermen, |
| Two types of classifications of Remainders | 1)contingent remainder and 2)vested remainder |
| Contingent (Remainder) | Subject to a condition precedent thats not certain to happen or granted to a person that is not in existence or ascertained. Generally not devisable. |
| Vested (Remainder) | Given to an ascertained person in existence and not subject to a condition precedent. Generally devisable and subject to open. |
| Defeasible | Means it could be completely taken away upon the happening of a particular condition |
| Defeasible fee simple | "only so long as its used for park or nature trail purposes"- magic language. Generally seen in conveyances including railroad grants, school grants, charitable donations, etc. There are two types FSD and FSS. |
| Two types of Defeasible fee simple (FSD) (FSS) | Defeasible fee simple is categorized into either Fee simple determinable or fee simple subject to a condition subsequent |
| Fee simple determinable | Possibility of reverter, its durational, and would revert back to grantor if violation |
| Fee simple subject to a condition subsequent | Conditional language, if violation occurs grantor has option of retaking property, right of entry or power of termination |
| Transferee | is the person or entity to whom property or an interest in property is transferred, essentially the recipient of the transfer. |
| Executory Interest | Follows a FSD or FSS when the future interest is created in a transferee |
| Estate for Years (days, wks, months) | Has a fixed duration or ascertainable unit of yrs, days, wks, etc. |
| Fee Tail | "to heirs of his body", reversion to transferor and remainder in transferee. Limit ability of property owners to control property after their deaths. This type of estate/future interest is rarely seen today. |
| Holographic Will | will that is entirely handwritten and signed by the person making it (the testator), without requiring witnesses or notarization, and its validity is determined by the laws of the state where the testator resides |
| Residuary Clause | provision in a will or trust that dictates how any remaining assets, not specifically mentioned in the document, are to be distributed after all debts, taxes, and specific bequests have been settled. |
| Heirs | Someone legally entitled to inherit property if a person dies without a will (intestate), with the inheritance determined by state's intestacy laws. |
| abrogates definition | means to formally annul, repeal, or cancel a law, right, or formal agreement, effectively making it void or inoperative |
| Treble damages (waste) | are a legal remedy where, in certain cases, the court is required to award the plaintiff three times the amount of actual damages determined by the jury . This remedy is often specified in statutes |
| forfeiture (waste) | refers to the loss of a property right or interest, typically due to a breach of duty or a failure to act, leading to the termination of that right or interest. |
| A remainder is vested subject divestment if the condition is subsequent rather than precedent (True/False) | True |
| Vested interests generally are devisable while contingent interest may not be (True/False) | True |
| Fee simple subject to an executory limitation (FSE) | Possession until condition is violated and automatically transfers to 3rd party. Magic words include "so long as", "while", "during", "until", "but if", "provided that", and "on condition that" |
| 6 possessory estates/ future interests | 1)Fee simple absolute, 2)life estate or finite estate, 3)fee simple determinable, 4)fee simple subject to condition subsequent, 5)fee simple subject to executory limitation, 6)fee tail |
| Right of Entry (concerning Future Interests) | It follows an estate subject to a condition subsequent. Future interest in the grantor retains after transferring ownership of property to the grantee. Reclaim property if condition is breached- renter and take back land for example. |
| Future Interests in the Transferor (3 types) | 1)reversion (life estate), 2)possibility of reverter (fee simple determinable), 3)right of entry (fee simple subject to condition subsequent) |
| Remainders (4 types) | 1)indefeasible vested remainder, 2)vested remainder subject to divestment, 3)vested remainder subject to open, 4)contingent remainder |
| Indefeasible vested remainder | ascertainable person and vesting is not subject to condition precedent or subsequent |
| vested interest | all possessory estates are vested! No condition precedent that must be met other than natural expiration of an estate. |
| Vested remainder subject to divestment | ascertainable person and vesting is not subject to a condition subsequent to the vesting. Comma use tells us this! |
| vested remainder subject to open | ascertainable person, not subject to condition precedent but might have to share interest, partial divestment via condition subsequent. Look for a class of people! |
| contingent remainders | unascertainable person or subject to condition precedent to vesting. This can be the most confusing one. |
| Words to Create Fee simple absolute: | "to A" "to A and her heirs" |
| Words to Create a Life Estate or Finite Estate: | "to A for life" |
| Words to Create a Fee Simple Determinable: | "so long as" "while" "during" "until" |
| Words to Create a Fee Simple Subject to Condition Subsequent: | "provided that" "on condition that" "but if" |
| Words to Create a Fee Simple Subject to Executory Limitation: | "so long as" "while" "but if" "during" "until" "on condition that" "provided that" |
| Right of Quiet Enjoyment | Also known as covenant of quiet enjoynment, a fundamental tenant right, ensures a tenant can possess and use their property without undue interference from the landlord or others, including excessive noise or unauthorized entry. |
| Constructive Eviction Elements | Not actual eviction; elements: 1)landlord substantially & materially deprives tenant of her use and enjoyment of premises, 2)tenant gave landlord notice and a reasonable time to repair, 3)after reasonable time , tenant acted premise |
| Implied Warranty of Habitability | Tenant has to prove: 1)whether conditions are reasonably suitable for human habitation, OR 2)has there been a violation of a local code |
| Theory of Caveat Lessee | Theory that the tenant assumes the risk of defective conditions existing at the time the lease is executed. Buyer be ware. |
| Constructive Eviction elements | Constructive evictions occur when a landlord does not physically or legally evict a tenant but takes actions that interfere with the tenant's use and enjoyment of the premises significantly enough to constitute “eviction in fact.” |
| Lease Transfers Types (2) | Sublease and Assignment |
| Assignment | Everything must go, space, time , and use! refers to the transfer of rights and obligations under a contract, often a lease or purchase agreement, from one party (the assignor) to another (the assignee). |
| Sublease | If not an assignment transfer is this. Things of yours may still remain in the space, or you can come back after some designated time. A tenant temporarily rents their leased property to a subtenant. |
| Privity of Contract | means that only the parties directly involved in a contract (like a lease or sale agreement) have rights and obligations under that contract, and third parties generally cannot enforce it or be sued under it. |
| Privity of Estate | refers to the legal relationship between parties who hold concurrent or successive ownership or leasehold interests in the same real property, such as a landlord and tenant, or a landlord and an assignee of the tenant. Two or more parties hold interest. |
| Release | refers to a legal document or action that extinguishes a claim or obligation related to a property, such as a mortgage or easement, freeing the property from that specific burden. |
| True or False-- General rule is that a tenant may transfer his lease right by assignment or sublease. | True- tenants generally have the right to transfer his lease rights by assignment or sublease. |
| Actual Eviction | the legal process where a tenant is physically removed from the rental property, typically after a court order, due to a breach of the lease agreement or other valid reasons. |
| Partial Eviction | this occurs when a landlord interferes with a tenant's use of a portion of the leased premises, potentially leading to a reduction or suspension of rent obligations, but not necessarily a full eviction. |
| Absolute Defined | not defeasible, will have actual (not merely potential) infinite duration |
| Equitable Conversion | worry of property suffering a "casualty" prior to closing. |
| 4 Phases of the Purchase & Sale Transaction | 1)pre-contract period, 2)contract/executory period, 3)closing, 4)post-closing |
| Precontract Period | getting property prepped and putting it on the market. Investigations of property/ appraisal, etc. Brokers/sellers find each other. Create contract for sake. Equitable conversion takes place in between this stage; title splits! |
| Executory Period | "Due diligence period". You really take on appraisals, title inspections, etc. here. If buyer finds some form of defect, that seller doesn't have marketable title, seller must be notified. |
| Closing the Contract | "check all the boxes". Make sure everyone has performed their contract duties. Merger Doctrine. |
| Postclosing | Buy can move in to property now. Payments must be made on the note, if not then that's where foreclosure can come back into play. |
| 2 Lender Documents | Note and Mortgage |
| Note | If you don't pay under the note, they can go after you personally. Agreeing to pay bank back at some rate over period of time; to the lender (unsecured). |
| Mortgage | If breach if note, you can then foreclose on the property. Involves property rights; gives lender interest. Lender assurance that buyer will pay them back. |
| Marketable Title | Implied or can be expressly stated in contract. Reasonably free form doubt as to its validity. No encumbrances or they have been waived. If buyer would pay fair market value for the property then title is marketable. |
| Encumbrances defined | (covenants, liens, etc.) |
| Tenancy for Term of years | a lease for a fixed period of time. For a tenancy for years lease, no notice is needed for termination, the lessee knows the termination date from the outset of the lease. |
| Periodic Tenancy | a tenancy that continues for successive periods (e.g., month-to-month, week-to-week) until terminated by proper notice, rather than a fixed-term lease with a specific end date. |
| Tenancy at Will | a property tenure that can be terminated at any time by either the tenant or the owner/landlord. It exists without a contract or lease and it usually doesn't specify the duration of a tenant's rental or the exchange of payment. |
| Deed | legal document that transfers ownership of real property from one party to another. |
| Junior to (junior interests) | means subject to. refers to claims or debts that are subordinate to other, higher-priority claims or debts, meaning they are paid after the senior interest are fully satisfied. |
| Equitable Conversion | when title splits; happens when you sign the contract for sale. 3 'Types' depending on jurisdiction and explains who would be at fault. |
| 3 'Types' (Jurisdictions) | 1)Majority- buyer on hook for L. 2)Minority / Mass. Rule- seller bares risk of loss. 3)Modern Minority Loss- equitable owner assumes the risk of the destruction or injury to the property where she is in possession &loss is not proximately caused by seller |
| Merger Doctrine | Marketable title at closing; when parties exchange money for the deed they exchange legal rights and contract is irrevocable. |
| "Binder" | a document that commits the title insurance company to issue a title insurance policy so long as certain conditions are met |
| Elements for Delivery of a Deed | 1)hand written, 2)manual delivery, 3)words indicating transfer, 4)record of deed presumes delivery (*1)intent by grantor to make transfer and 2)a transfer of dominion and control) |
| Statute of Wills | it requires a will, subject to formal requirements such as witnesses to effect a transfer at time of a persons death. |
| Rule: (from Rosengrant v Rosengrant case) | Where a grantor delivers a deed under which he reserves right of retrieval and attaches a condition that its operative only after the death of the grantors and continues to use the property as if no transfer occurred; no intent |
| Title Assurance | any form of assurance to prove property has a clear and valid title free from liens, encumbrances or other defects achieved through methods like title searches, abstracts, or title insurance |
| 3 Types of Deeds | 1)Quitclaim deed, 2)General Warranty Deed, 3)Limited (special) warranty |
| Quitclaim Deed | No promises what so ever about title. Enforceable to convey title, have magic words used to convey. |
| General Warranty Deed | Contain specific protections for the grantee of the deed. Two sets of warranties future + present. Most popular type of deed. |
| Limited (special) warranty | Similar to general deed however, time period of coverage is limited to defects created by the grantor of the deed or during her ownership. Grantor makes no promises about the defects that arose prior to grantors ownership. |
| 3 Types of Recording Statutes | 1)Race statute, 2)Notice Statute, 3)Race-Notice statute |
| Future warranties | Defense, quiet enjoyment, further assurances. Triggered when 3rd party asserts some interest. Statute of limitations doesn't start tolling until 3rd party asserts their interest. |
| Present warranties | Seisin, authority to convey, no encumbrances. triggered during the deed delivery, statute of limitations when deed is delivered. |
| Race Statute | Gives title to the party who wins the race to record the instrument conveying the property interest |
| Notice Statute | subsequent purchasers interest is superior to earlier conveyance from the same grantor if the subsequent purchaser took the property w/o notice at the time of the purchase. Ask what did subsequent purchaser know and when did he know it? |
| Race-Notice Statute | combines both of the other statutes; subsequent purchaser must show that she recorded her interest first and she took it w/o any notice of prior convenience at the time of her purchase |
| Deed form requirements | Deed must contain identification of the real property w/a legal description; grantor & grantee granting clause, some also require a recitation of the consideration. |
| Deed Legal Requirements | 1)intent, 2)delivery, 3)acceptance |
| True or False | True: Deed is binding even if not recorded! Deed transfers title not the recording, as soon as intent, delivery and acceptance are proven then it becomes binding. Doesn't need to be recorded to be legally binding between the parties. BUT should record ! |
| Bona fide purchaser | this is is someone who purchases property for value, without notice of any other party's claim or defect in the seller's title, and in good faith. |
| 3 Types of Notice | 1)Actual, 2)Constructive Recorded Notice, 3)Inquiry Notice |
| Actual Notice | verbal/physical notice |
| Constructive Recorded Notice | recording in office (most common type ) |
| Inquiry Notice | If a subsequent purchaser has 1)notice of facts that would cause a reasonably prudent person to investigate further and 2)he is deemed to know the additional facts that investigation would uncover whether he inquired or not |
| Loan Transaction (basic overview) | Loan transaction contains two documents: promissory note and mortgage |
| Default defined | what occurs if the borrower fails to make a payment when it becomes due |
| Non-recourse loan defined | means that the lender agrees that if the borrower fails to repay the loan, lender will be limited to taking the mortgaged property and will not pursue the personal assets of the debtor |
| Usurious defined | a loan that requires payment at an interest rate higher than the maximum specified by state law is called usurious. Usury laws are provided either in a states statutes or in the state constitution |
| Fixed Rate Loan defined | Interest stays the same over the life of the loans |
| Adjustable Rate Loan Defined | meaning that at some point during the terms the loan "resets" at a different usually higher interest rate |
| Equity of Redemption defined | practice of granting an extension to borrower for loan repayment |
| Foreclosure Defined | Final due date and the process by which the equity of redemption is terminated |
| 6 Controlling Rules of Foreclosure Sales | (see pg 603 of property law textbook) |
| Two ways mortgage may foreclose on its lien: | 1)judicial foreclosure and 2)non-judicial foreclosure |
| Judicial Foreclosure | process carried out by the lender or its nominee known as non-judicial foreclosure. Upon default = lawsuit. Terminates the mortgagors equity of redemption |
| Non-judicial Foreclosure | Authorizes lender to foreclose on the property w/o going to court and can be done only pursuant to a power of sale provision in the mortgage doc. Terminates al junior interests to the lien |
| Acceleration Provision | placed in promissory notes to require borrower to pay the entire amount of the outstanding debt to redeem her property and stop the foreclosure. |
| True or False | True: junior mortgagees are considered necessary parties. A party is necessary if the foreclosure will wipe out that party's interest |
| Amortization | payments are made over time |
| 3 Types of Notes | 1)fixed- fixed rate over time, 2)adjustable-2 time frames; fixed market rate, ARM, and 3)balloon -no principle payments are made; come maturity date you have to pay off all the principle. |
| Road to Foreclosure | 1)Event of default , 2)Acceleration of debt, 3)foreclosure |
| 4 statutory protections (pertaining to foreclosure) | 1)designated value, 2)one action rule, 3)statutory redemption statutes, 4)delay |
| Designated Value | of the property was achieved at the foreclosure sale. • Irregularities in the sale (such as, lack of notice)? Did those irregularities lead to a grossly inadequate price? |
| One Action Rule | where the lender is limited to a single action that must include foreclosure and no rights to any additional deficiency |
| Statutory Redemption Statutes | where the mortgagor has the right to pay the debt and obtain a release of the mortgage for a set time. |
| Delay | statutes in which the foreclosure process is halted pending a certain time limit. |
| Redlining Defined | Home owners loan corp. was a gov corporation. Empowered to say which loans were going to be covered/ insured federally; to decide which loans to back they drafted maps to decide which areas to back. Embedded in physical landscape & facially discriminatory |
| A real covenant defined | refers to a promise relating to the land, which adheres to the title and "runs w/ the land" rather than remaining with the original promisor or promisee |
| Easement defined | gives holder right to do something on the property of another or right to keep the owner from doing something on his property. |
| Dominat parcel or tenement defined | is a property that benefits from an easement over another property |
| servient tenement | is a piece of land that is burdened by an easement, meaning the owner must allow another party |
| Appurtenant | benefits of particular property & is attached to the title rather than belonging to someone personally |
| Affirmative Easement | positive; holder of the easement can do something on the property |
| Negative Easement | holder of easement prevent the servant landowner from making otherwise permissible use of her own land |
| Conservation Easement | leaves the fee ownership of the property in the landowner but prevents the development of the property. |
| 4 Ways to create an Easement | 1)express, 2)estoppel, 3)implied (by prior use, by necessity), 4)prescription |
| Express (easement) | A WRITING meeting the requirements of the statute of frauds |
| Estoppel (easement) | the dominant tenant reasonably relied to his detriment on the servant tenants promise. Substantial injustice. |
| Implied (easement) | These situations arise when a grantor splits a piece of property into pieces and conveys one of the parcels. The court might determine that an easement was implied in the conveyance in two situations : by prior use or by necessity |
| By prior use (implied easement) | If a particular use of the servient parcel already existed and was reasonably necessary to the use and enjoyment of the dominant parcel |
| By necessity (implied easement) | if an easement became necessary due to the conveyance |
| Prescription (easement) | Similar to adverse possession, the dominant tenant uses the servant parcel w/o permission for the prescriptive period. Also related on this category are easements established by custom and implied dedication |
| Rule: | The common law rule is that a grantor cannot create an interest in a third party, a so called stranger to the deed |
| Rule: (from Kienzle v. Myers case) | An easement by estoppel happens when a property owner lets another person make changes based on a supposed right to use the property even if the owner didn't trick the other person |
| Creation of Easements (Steps) | An easement, a legal right to use someone else's property, can be created in several ways (5), express (contractual), estoppel, prior use, necessity, and prescription |
| Express (creation of an easement) | Contracted for. 1)Scope, 2)maintenance and improvement, 3)termination (Cochran v. Hoffman) |
| Estoppel (creation of an easement) | 1)permission to use the land, 2)reliance, 3)its reasonable to force/know servienant would know dominant may take an action and that permission would be revoked (Kienzle v. Myers) |
| Utility Easement | For things like pipelines, electric, etc. |
| Scope of Easements | The scope of a property easement defines the permissible use of the servient estate (the property burdened by the easement) by the dominant estate (the property benefiting from the easement). |
| Termination of Easements (7 ways) | 1)Release, 2)Expiration, 3)Abandonment, 4)Merger, 5)Estoppel, 6)Condemnation, 7)Prescription |
| What is an easement? | Gives holder the right to do something on the property or to keep someone from doing something on the property. Talking abt the use not possession! A non-possessory right too use land in possession of another. |
| Right of Way Easement | Gives someone the right to be on/cut through someone else's property. |
| License defined | Not an interest in land but rather is a transient, personal privilege. A license constitutes permission to enter the property for a particular purpose. A license is usually held to be revocable and unassignable (w/o consent) unless parties agree otherwise |
| Appurtenant Defined | benefit the dominant tenant not servient tenant. Need the land bc using for a driveway to get to and from house. Possessory interest. |
| Gross (Defined in relation to easements) | deals w a nonpossessory interest. Need the land bc electricity runs or bc railroad has been there for a long time, don't really need the land (think about it like this). Some entity will hold this. |
| Affirmative Easements | easement grants the easement holder the right to perform a specific action on another person's property. It allows the easement holder to use the land in a particular way, such as by providing access, utilities, or other rights. |
| Negative Easements | Rarely seen today but when they are they are in the form of a conservation easement, non-profit, local gov, etc. |
| Dominant Tenement | Has benefit of the easement. Property that uses an easement over another property, |
| Servient Tenement | bears the burden of easement. Has the easement on their property. |
| Easement by Prescription Elements | The use of another's property must be 1)adverse, 2)open, notorious and notorious, and 4)continuous for specified period of time (period of prescription) (articulation of starting & end point of the easement physical, manner and its purpose) |
| Easement by Prior Use | 1)severance, 2)existing (appurtenant), and 3)reasonable necessary and continuous |
| Easement By necessity | 1)unity of title, 2)severance (necessary), 3)show of necessarily strict |
| O'dell v. Stegall | This case gives us the elements of a prescriptive easement. The Stegalls objected to O'Dell's use of the gravel lane because it caused wear and tear to the lane, which the Stegalls were contractually obligated to repair. Jury found for O'dell. |
| Easement by Use Test | 1)intent, 2)reasonableness, 3)no burden on servient land |
| Release (Termination of Easement) | Expressly (contractually) released through deed or termination agreement |
| Expiration (Termination of Easement) | Original easement expired upon time period in easement agreement. Expressly contracted for or by necessity largely. |
| Abandonment (Termination of Easement) | 1)dominant tenant, 2) is no longer using it and 3)intends to abandon it and takes 4)affirmative steps such as pull up some of the boards on a deck. |
| Merger (Termination of Easement) | Common owner; y-->x and now x owns both property's; largely by necessity. n easement is terminated by merger when the same person becomes the owner of both the property benefited by the easement and the property burdened by the easement. |
| Estoppel (Termination of Easement) | A termination method that may apply if the easement holder engages in non-contractual conduct that results in the servient estate owner responsibly believing that the easement has been abandoned. |
| Condemnation (Termination of Easement) | n easement by condemnation is the process by which a government or an entity acts on its behalf. Acquires a particular right over private property to benefit a broader public good. |
| Prescription (Termination of Easement) | occurs when the property owner takes actions that are inconsistent with the easement holder's rights for a specified period of time, which is typically five years. |
| Recording Acts | Recording acts in property law are state statutes that establish the procedures for filing, recording, and inspecting real property documents like deeds and mortgages. |
| Misuse | misuse generally refers to the unauthorized, improper, or unlawful use of property for purposes other than those for which it was intended. In almost every case of misuse it results in an injunction |
| Real Covenants | Most seen in HOA's, subdividing; painting; whether you can hang our laundry outside to dry or not, etc. |
| 3 Levels of Real Covenants | 1)Declaration, 2)Covenants, 3)Rules & Regulations |
| Declaration (3 Levels of Real Covenants) | Hardest to amend; HOA creation/declaration. |
| Real Covenants (3 Levels of Real Covenants) | True agreements between servant and tenement; substitutive binding standard. A real covenant is a promise concerning the use of land that: 1)benefits and burdens the original parties of the promise and their successors and 2)is enforceable in an action |
| Rules & Regulations (3 Levels of Real Covenants) | By the HOA which are authorized through the Declaration and covenants. Whoever is running the HOA will be able to amend the rules & regulations. |
| Injunction | A court order that compels a party to do or refrain from doing a specific act related to property. |
| Running with the land | 1)OG parties intend to bind/successors, 2)touch and concern the land, 3)notice, 4)horizontal privity (only between OG parties) must exist and , 5)vertical privity must exist |
| Equitable Servitude | (run w/ the land) 1)OG parties intend to land successors, 2)touch and concern the land, 3)Notice |
| A Real Covenant 5 Part Test | 1)Intent, 2)touch & concern, 3)horizontal privity, 4)vertical privity, 5)Notice |
| Intent (Real Covenant) | Intend for covenant to run with the land. |
| Touch & Concern the land (Real Covenant) | Promises that are personal in nature and those that have to do with the use and enjoyment of the land itself |
| Horizontal Privity (Real Covenant) | Connection between the original promisor and promisee beyond the covenant itself. Courts accept 3 Types: 1)grantor/grantee or successive privity or 2)Mutual Privity, OR 3)landlord tenant privity |
| Vertical Privity (Real Covenant) | Connection between the successive owners of the benefited property and burdened property. This requires that the party succeed to the same interest in land burdened or benefited by the covenant. |
| Notice (Real Covenant) | A bonda fide purchaser who takes w/o notice of the covenants is not bound by them. A subsequent owner is entitled to the benefit of covenants even if she had no notice of them. |
| Equitable Servitude | A restriction on land use that's enforceable in a court of equity even if it's not explicitly written in a deed. A promise regarding land use that binds OG owner and subsequent owners fo the property. |
| Tulk v. Moxhay case |
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