Real Property Speed

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  1. Contract stage.
    • Step one of sale of real property.
    • Any liability must be based upon a contract provision.
  2. Deed stage.
    • Step two of sale of real property.
    • Any liability must be related to a deed warranty.
  3. Doctrine of merger
    Covenants in contract are merged into the deed and are not enforceable unless the covenant is also in the deed.
  4. Writing to satisfy SOF.
    • (1) a writing
    • (2) including the essential terms of the agreement
    • (3) signed by the party against whom enforcement is sought.
  5. Essential terms of writing
    • (1) parties,
    • (2) description of the property,
    • (3) with price and payment info.
  6. Part performance doctrine
    • Exception to SOF
    • Evidence of partial performance by seller or buyer, such as (1) payment of part or all of the purchase price, (2) possession by purchaser, or (3) improvements made by purchaser.
  7. Promissory estoppel
    • (1) one party has made a statement which induces reasonable reliance by the other party,
    • (2) the other party has actually relied upon the statement to her legal detriment, and
    • (3) that party would suffer hardship if the contract is not enforced.
  8. Implied covenant of marketable title
    • Implied in every sale of land.
    • A promise that the title is free from unreasonable risk of litigation through defect in title.
  9. MD: Implied covenant of marketable title
    Implied into every kind of title absent contrary language.
  10. MD: duty to tell that someone died on property or that the previous occupant had HIV/AIDS.

    • Implied warranty of fitness or suitability
    • New construction
    • Initial or subsequent homeowner may bring suit to recover damages for repairs required to make the home suitable to live in.
  11. Duty to Disclose Defects
    • A seller has a duty to disclose to the buyer all known physical or material defects.
    • Hidden defects need not be disclosed.
    • Material defects must substantially affect the value of the home, health or safety of occupants or the desirability of the home.
  12. Seller's remedies for Breach of Warranty
    • Damages between contract price and market value on date of breach
    • Rescission
    • Specific performance.
  13. Buyers remedies for Breach of Warranty
    • Damages between contract price and market value on date of breach.
    • Rescission
    • Specific performance.
  14. Mortgages
    • A security device which is used to secure repayment of a debt.
    • (1) note, which is promise, and (2) mortgage, which is the instrument.
  15. MD: when buyer can get title?
    After paying 40% of purchase price.
  16. Purchase money mortgage
    • loan to purchase property
    • will trump other mortgage holders
  17. Future advance mortgage
    line of credit not related to purchase of property.
  18. Deed of trust
    A trustee holds title for the benefit of the lender.
  19. Installment land contract
    • The seller finances the purchase and retains title until buyer makes final payments on installment plan.
    • If buyer defaults, the seller keeps the property
  20. Absolute deed
    The mortgagor transfers the deed to the property instead of conveying a security interest in the home.
  21. Conditional sale and repurchase
    Owner sells property to the lender who leases the property back to the owner in exchange for a loan. Lender gives owner the option to repurchase once the loan is paid off.
  22. Liability of mortgagor
    • A mortgagor continues to be liable unless:
    • (1) released by the lender
    • (2) modification of the transferee's obligation.
  23. Due on sale clause
    lender option to speed up payment when property is transferred

    • Due on encumbrance clause
    • lender option to speed up payment when a second mortgage is taken out.
  24. If transferee assumes mortgage
    • The mortgagor is secondarily liable.
    • Both parties are liable upon default.
  25. If transferee doesn't explicitly assume the mortgage
    • Transferee is not personally liable upon default.
    • Presumption
  26. Foreclosure - Lien theory
    Lender cannot take possession prior to foreclosure because this is just a lien.
  27. Foreclosure - Title theory
    • Lender has right as the owner of title to possess property at any time.
    • MD?
  28. Foreclosure - Intermediate title theory
    Mortgagor retains title until default, and then the lender may possess.
  29. Waste
    • The owner cannot commit affirmative, voluntary or permissive waste to the property.
    • Ameliorative waste is typically permitted, since it improves upon the value of the security interest.
  30. Redemption
    When facing a default sale, a mortgagor can reclaim title by paying the full value of debt at any point before the foreclosure sale.
  31. Deed in lieu of foreclosure
    A mortgagor can convey property to lender in exchange for releasing her from any outstanding debt.
  32. Foreclosure
    A foreclosure is a forced sale of an asset to pay off a debt.
  33. Notice of foreclosure sale
    Mortagee must given notice before foreclosure.
  34. Methods of foreclosure
    May be done by judicial sale (court) or power of sale (private sale).
  35. Excess proceeds of foreclosure sale
    • Used to pay off other debtors
    • Remainder is given to the mortgagee.
  36. Senior interests - foreclosure
    Survive the foreclosure
  37. Junior interests - foreclosure
    Extinguished by the foreclosure.
  38. Purchase money mortgages priority
    Over all other mortgages (even if first in time).
  39. Modifications which make a senior mortgage more burdensome
    Subordinates its interest but only to the modification - future-advance mortgages.
  40. Effect of foreclosure
    Eliminates mortgagor's interest in the property
  41. Statutory redemption
    • statute which allows mortgagor to redeem property after foreclosure sale by paying what purchaser paid.
    • Not MD
  42. Valid Deed
    Delivered and accepted with present intent to transfer the property.
  43. Physical transfer of deed
    • Not required
    • Delivery can be completed via an agent.
  44. Contents of the Deed
    (1) identify parties, (2) signed by grantor, (3) include words of transfer, and (4) provide sufficient description of property.
  45. Types of interests covered by Recording Acts
    • Deeds
    • Mortgages
    • Leases
    • Option contracts
    • Judgments affecting title
    • Easements
    • Covenants.
  46. Persons protected by Recording acts
    • Subsequent purchasers are protected by recording acts
    • Not person who acquire title by gift, intestancy or devise.
  47. Notice and recording acts
    • (1) actual notice
    • (2) constructive notice - prior interest is recorded;
    • (3) inquiry notice - reasonable investigation would disclose
  48. Race Statute
    First to record wins - language of "first recorded" or "first to record."
  49. Notice Statute
    • Subsequent purchaser has good title if she has no notice of a prior, unrecorded conveyance.
    • Language "in good faith," or "without notice."

    • Race-Notice Statute
    • (1) Purchase without notice
    • (2) Record first.
    • MD is a race notice state.
  50. Shelter rule
    A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor.
  51. Estoppel by deed
    A grantor cannot repossess on grounds that he didn't have title when he made the original conveyance.
  52. General warranty deed
    • Present covenant
    • Seller warrants that there are no defects to the warranty of the deed, whether caused by him or another.
  53. Covenant of Seisin
    • Present covenant
    • The deed describes the land in question.
    • Remedy: lesser of purchase price or cost to perfect.
  54. Covenant of right to convey
    • Present covenant
    • Grantor has the right to convey property.
    • Remedy: lesser of purchase price or cost to perfect.
  55. Covenant against encumbrances
    • Future covenant
    • No undisclosed encumbrances on property.
    • Remedy: difference in value or cost of removing encumbrance.
  56. Covenant of quiet enjoyment
    • Future covenant
    • Promise to defend against all future challenges to grantee's title to property.
    • Remedy: lesser of purchase price or cost to defend MD: cannot be waived.
  57. Covenant of Warranty
    • Future covenant
    • Promise to defend against future encroachments.
    • Remedy: lesser of purchase price or cost to defend
  58. Covenant of Further assurances
    • Future covenant
    • Promise to fix future title problems.
    • Remedy: lesser of purchase price or cost to perfect.
  59. Specialty warranty deed
    Guards against defects caused by grantor.
  60. Quitclaim deed
    Makes no warranties as to the health of the title.
  61. Breach of Present Covenants of Deed
    Occurs at the time of the conveyance
  62. Breach of future covenants
    Occurs after the conveyance when there is interference with possession.
  63. Fixtures
    • Tangible personal property that is affixed to real property in a manner that is treated as a part of the real property.
    • Part of the real property.
  64. Sale of Fixtures
    • Buyer generally entitled to the chattel
    • Seller may reserve, in contract, the right to keep the property.
  65. Equitable Conversion - seller
    • Seller retains legal title and holds property in trust for the buyer.
    • Seller has right to possess the property
  66. Equitable Conversion - buyer
    • Buyer acquires equitable title upon entering the contract.
    • "The buyer becomes the owner of the land and the seller becomes the owner of the purchase money"
    • However, as the holder of legal title, the seller has the right to possess the property.
  67. Equitable conversion and invalid sales
    Does not apply if the contract is not specifically enforceable.
Card Set:
Real Property Speed
2015-07-23 02:25:56

speed MBE
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