Property MBE

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RoughOne
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91999
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Property MBE
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2011-06-26 14:04:11
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Property MBE
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Property MBEa
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  1. Fee simple subject to a condition subsequent
    Power of termination upon the happening (or not) or an event (needs affirmative steps to take back)

    • *Words that create:
    • 1. "on condition that"
    • 2. "subject to the condition that"
    • 3. "but if"

    - must be coupled w/ a provision of re-enrty
  2. Fee simple determinable
    Automatically ends on the happening of an event

    • *words that create:
    • 1. "so long as"
    • 2. "during"
    • 3. "until"
    • 4. "while"

    - future interest called power of reverter
  3. Fee simple subject to executory interest
    FS estate, @ the happening of an inven, ownership is passed from one grantee to another than the grantor (shits automatic)

    shifting EI: right to possession shifts from one grantee to another

    springing EI: right to possession springs from the grantor to the grantee
  4. Fee tail
    Inheritance restricted to a partial group of lineal descedants

    *not freely alienable, fee owner may only alinate for the duration of his LT
  5. Life estate
    freehold estate where duratiion is measured by the life or lives of one or more human beings

    *Pure autre vie= duration measured by the life of someone other than the grantee
  6. Remainders
    Future interest created in a 3rd party that's intended to take effect after the natural termination of a LE

    • *Elements:
    • 1. must be in favor of 3rd party
    • 2. created @ the same time and in same instrument
    • 3. must be so limited to take effect immediately upon th happening of prior particular estate
    • 4. Prior estate must be lesser than interest of conveyor @ time of conveyance
  7. Contingent Remainder
    must follow the natural termination of a proceeding estate
  8. Rule in shelly's case
    • reqs:
    • 1. free hold estate (LE etc...)
    • 2. remainder must be limited to heirs
    • 3. FH + remainder must be of the same quality
  9. Joint Tenancy
    Must be clear expression of intent to create

    *Co-ownership, undivided interest in whole estate. Right to survivorship.

    *Surviving tenant(s) own the whole propery, nothing passes to the heirs

    • UNITY (Chapelle lol!), 4 unities:
    • 1. time
    • 2. title (same instrument)
    • 3. interest
    • 4. possession
  10. Extinguishment of an easement appurtenant
    When an easement apputenant exist and both dom & serv tenements come under the same ownership, the easement is terminated by operation of law ds
  11. Easement by Implication
    • Proved by circumstances surroundng, based on intent
    • Reqs: 1. quasi- easement
    • 2. Conveyance of one part of the prop& rentention of another by the grantor
    • 3. quasi- easement must be apparent
    • 4. quasi servant tenement must be perminately adapted to serve the quasi- dominant tenement
    • 5. quasi reasonably necessary if the quasi- dominant tenement is retained by the grantor
  12. Transfer of the Mortgage of Properties
    • "Subject to" = grante is not personally liable
    • "Assumes the mortgage" = purchase or grantee personally liable
  13. Title established through Adverse Possesion
    • Title is free from encumbrance& of a character to assure quiet& peaceful enjoyment of property by the vendee
    • However, it is not "marketable" title of record until there has been a judicial determination of such title. ( SUIT& RECORDING OF DEGREE)
  14. A/P disability of the Successor
    has no affect on possessor who fullfills the statutory reqs
  15. Common Enemy Rule
    • Surface water (NATURAL WATER) floods,snow&rain
    • lower test is not burdend w/ any servitude in favor of higher land, owner of lower tract entitled to protect tract from flow of surface water by making any emprovements that are suitable for that purpose unlimited discretion to handle it
  16. Doctrine of estoppel by Deed ( "After- acquired tilte")
    When a person excutes a deed purporting to convey an estate in land that he does not have, and such person at a later date acquires such estate in land, then the subsequently acqured estate will pass to the grantee
  17. Covenant to Pay Rent
    Runs w/ the land
  18. Tenant's Covenant to keep lease hold premises in good repair
    • Tenant is liable for all defects regardless of their cause.
    • Tenant lable for demage by her or 3rd party
    • Keep same as landlord delievered
  19. Ouster ( TiC)
    • look @ conduct
    • occurs when one co- tenant
    • manages to wrongfully exclude her co- tenants from possession
  20. Rule in Spencer's Case
    • an assignee of the leasehold estate cannot be held liable for breach of covenant if the covenant does not touch or concern the land
    • original tenant still liable
  21. Assignments
    • Does not release the original tenant from his contract/ lease obligations to the landlord under the terms of his original lease hold agreement
    • Even if assignee asigns
    • Privity of K
  22. Rule in Dumpor's Case
    • If a LL grants consent to one transfer he waives his right to avoid future transfers, assigns, or subleases in vio of a prohibition in the lease against such transfer
    • if lease/assignee pays rent& LL accepts, prohibition is waived
  23. Eminent Domain
    • Power may be delegated to a private person or enterprise if:
    • 1. for public use
    • 2. just compensation is given
  24. Title to Gov owned Property
    cannot be gained thru adverse possession
  25. Assignee Relationship w/ landlord
    the assignee falls into privity of estate w/ the ladlord and he is liable on all covenants in the original lease that 'run w/ the land"
  26. Sublease Relationship to Landlord
    No privity of K or estate
  27. Assignment Definition
    a transfer of a tenant's entire lease hold estate to another
  28. Sublease
    A transfer of anything less than a tenant's entire leasehold
  29. CIL Caveat Emptier
    • LL generally not impliedly warrantly that leased premises are suitable for a particular purpose& is not liable for a dangerous condition exsting on the leased premises
    • Exceptions:
    • 1. conditions LL tenant& 3rd parties knows about (or should) &discovery would not likely occur by tenant
    • 2. lease of completly furnished dwellings for a short period of time impliedly warrants the fitness of the premises& furnishings
  30. Commom Law Right to Lateral Support
    • One who by excavation, or other methods w/ draws lateral support from her neighbors land is liable for the injury done to such land in it's natural condition regardless of negligence
    • D may be liable for damages if proof of negligence
  31. Possessor of Real Property Rights
    • Right to exclussive possession of the surface of the ground,airspace& soil, the extent of which is determined by exterior boundres
    • any use by another that is unreasonable improper, or interferes w/ the use & enjoymentof the srface can constitute trespass
  32. Deed Absolute intended for Security will
    in equity construed as a mortgage
  33. Mortgages& Redemption
    a mortgages cannot circumscribr the mortgagoris right to redeem by disgusing the trasaction as an outright conveyance
  34. Mortgagee under Deed Absolute Tranfer to bonafied Purchases
    Montgagor has n right against bonafied purchaser but he does have a cause of action for redemption against the mortgagee for the value of the land or the proceeds of the sale
  35. Rule in Wild's Case
    " To B& his children" will be construed to mean a LE to B& a remainder to B's children if B has no children @ the time of the divise If B does they will be T:C
  36. Vested Remainder Subject to Complete Divestiture
    When complete divesture is contingent on a condition
  37. Springing Executary Interest
    Divest the interest of the transferor
  38. Shifting Executary Interest
    • Divest the interest of another transferee
    • X can only take if Y fails to meet a particular condition
  39. Equitable Conversion Doctrine
    • Purchaser of real prop becomes equitable owner of title @ the time she signs the K binding her to purchase land @ a later date ( Legal title remains w/ seller)
    • Purchaser takes the benefits of all subsequent increase in value& becomes subject to all loses not caused by fault of the seller (must procure own insurance or provision K cast risk on seller) However, not entitled to insurance $ payable to vendor
  40. Limitations of Doctrine of Equitable Conversions
    • Cases where the INTENT of the parties change& will not produce an equitable result
    • i.e: zoning laws
    • Unduly harsh& oppressive; unjust enrichment
  41. Pure "Notice" Reording Statutes
    • an unrecorded conveyance or other instrument is invalid as against a subsequent bonafied purchaser for value & w/ out notice
    • Subsequent Bonafied purchaser prevails over prior interest whether the subsequent purchaser records or not
  42. Quit claim Deed
    whether a grantee took-title via a quiet cliam or warranty deed is only irelevant when a grantee is suing a grantor under a deed covenant
  43. Recording Statues Exceptions
    do not protect subsquent claimant who has not paid more than nonminal cinsideration because he is not the purchaser
  44. Adverse Possession
    • Reqs: LE FT FS
    • 1. Actual& Exclusive
    • 2. Open& Notorious (for whole world to see)
    • 3. Hostile
    • 4.Continuous
    • 5.Peaceable (no eviction)
    • statute begins to run when trespasser enters onto the record titlteholder's property& begins to possess it in a manner that satifies the Reqs
  45. Right To Lateral Support
    • Natural Condition= no buildings or artificial strutures
    • Right a land owner has to have land physically supported in its natural state by both adjourning land& underground strutures.
    • withdrawl lateral support= S/L
    • English rule= damages to land& artificial structures
    • American rule= damage to land in its natural condition
    • Negligent excavation= liable for all damages
  46. Easement (or Profit) Appurtenant
    • Attached to a piece of land& benefits the owner of such land in his use or enjoyment thereof.
    • Easement in appurtenant runs w/ the land
  47. Easement (or Profit) In Gross
    its intended to benefit the owner or possessor personally rather than in connection w/ any land the holder owns
  48. Affirmative Easements
    • Entitle the easement holder or owner to make affirmative use of serviant tenement
    • doing something or having a right of way
  49. Negative Easements
    • Prevents the servient tenement owner from doing some act or making a particular use of her own land
    • not build a fence etc...
  50. Creation by Implication
    • Generally aries when the owner of 2 or more adjacent parcels sells 1 or more of them& its clear that on easement was intended
    • Reqs: 1. @ time of conveyance 1 part of the land is beinf used for the benefit of another (aparent)
    • 2. Existing use in apparent
    • 3. Eisting use is continuous
    • 4. Existing use is either reasonably or strictly necessary the enjoyment
  51. Creation by Writting
    Must satisfy the S/F
  52. Implied by Grant& Reservation
    • Implied grant= if the implied easement is in favor of the CONVEYEE& is aaprtenant to the tract conveyed
    • Implied reservation= if the easement is in favor of the CONVEYOR& is appurtenant to the tract retained
  53. How easement or profits can be created
    • 1. Express provision in deed or will
    • 2. By implication (necessity, or conveyances)
    • 3. By prescription (adverse use- same elements as A/P)
    • 4. Estoppel (promises made,$ spent in reliance)
    • 5. Eminent domain
  54. Extinguishment of Profits or Easements
    • Creating instrument may state; if not its considered to be on going
    • May be terminated by: 1. Release: holder may exerise relase(must be n writing S/F)
    • 2. Merger: when the fee simple title to both the servient& dominant tenements comes into the lands of a single person
    • Condemination,Abandonment,Destruction of the servient tenement, Prescription, Estoppel
  55. Covenants Running w/ the land
    • Reqs: 1.S/F
    • 2. Intent to run w/ land
    • 3."touch& concern" the land (make the land more or less valuble) -affet parties as landowners
    • Must be privity of estate= one of the K tracting parties succeeds to an interest in the land of the other party (eig LL- tenant)
  56. Tyes of Covennants running w/ land
    • 1. Pay rent
    • 2. to insure
    • 3. Pay taxes
    • 4. Option to purchase
    • 5. Not to sell liquor
    • 6. Not to build a sructure
    • 7. Not to assign or sublease
    • 8. to supply water,light& heat
  57. Equitable Servitudes
    • a restriction on the use of land enforceable in a court of equity; its an interest in land; applies to chattel property (a buisness)
    • Reqs: 1. Writing (S/F)
    • 2. Intent to bind the land
    • 3. Notice (actual or constructive)
    • Not enforceable to BFP w/out notice
  58. " Assmption" of Mortgagee
    • Purchaser is personally liable. Original mortgagor remains secondarily liable
    • When deed languge is sient "subject to" is assumed
  59. Collaeral Doc. Rule
    Developer has common scheme, 1 deed doesnt mention, dude may be bound if othen deeds contain the scheme
  60. Boundry Line Agreements
    • Judicial recognition requires;
    • 1. parties not aware of true location
    • 2. express or implied agreement of location
    • 3. possession conformed to the agreement
    • An oral agreement made btwn adjoining landowners to settle an uncertain boundry line or one in dispute valid& binding& does not come w/ in the S/F
  61. Land Description Rules of Construction
    • 1. Natural monument trump of then description terms
    • 2. Artificial (buildings etc) beat all but natural
    • 3. Corse (angles) beat descriptions of distances
    • 4. General descriptions are the least useful
  62. Reformation
    • Available where a deed does not represent intent of parties& when there is typographical ever or parties were mutually mistaken as to terms
    • unilateral mistake= only appropriate if the non-mistaken party mis repped a material term
    • Not available to BFP who relies on language of original deed
  63. Covenants Runing w/ the land
    • 1. Quiet enjoyment
    • 2. futher assurances
    • 3. warranty
    • may be enforced by remote parties on the basis of privity of estate
  64. Recording Statutes
    • Dont apply to AP pr Perscriptive easements/Profit
    • Only apply to derivative titles (profit,easement,E/S= acquired by grant) recording serves as constructive notice
    • Recording Error: Person who files is under duty to examine the record to make sure instrument to verify its properly filed& indexed. If improperly filed& indexed, courts treat the instrun=ment as if has not been recorded= NO CONSTRUCTIVE NOTICE
  65. Notice
    • Unrecorded conveyance invalid against a subsequet BFP for value w/out notice
    • BFP- Prevails over prior interest whether BFP records or not
    • - Not preminum for BFP to race to recorders office
    • - Look @ status of purchaser @ the time the deed or mortgage is acquired
  66. Race
    • No conveyance is valid against purchase (including lien creditors or other parties) for a valuble consideraton but from the time of recordation; The first to record wins
    • Subsequent purchaser need not be bonofied& w/out notice since she will prevail if she records first
  67. Race- Notice
    • An unrecorded conveyance in invalid as against a subsquent BFB for value w/out notice& who records first.
    • Subsequent party to prevail must be BOTH BFPfor value w/out notice of prior interest AND RECORD first
  68. Mortgage
    • interest in land created by a written instrument providing security for the performance of a duty or payment of a debt
    • If mortgagor doesnt pay,mortgage(or party who debt is owned) can: 1) assume title of property
    • 2. sell& take proceeds
    • Assignable, should be recorded
  69. Title Theory
    • Common Law
    • Mortgage operates as a conveyance of the legal title to mortgage, Title subject to defeasance upon payment of mortgage
    • Mortgage is actually entitled to possession. Can take possession immediatley upon defaut.No foreclosure needed
  70. Line Theory
    • Majority
    • Mortgage creates only a lien on the land regardless of the words of the instrument
    • Mortgagor remains owner, mortgagee holds security interest...unless foreclosure take place
  71. Exoneration
    • One who personally stands as surety (one who stands by debt obligation if borrower defaults), or whose interest is mortgaged property occupies that position,is entitled to exoneration against the person or property prmarily bound to pay the debt
    • Such persons, if it will not prejudice the rights of the mortgage creditor or 3rd parties, may compel the morgage creditor to enforce his claim against the person or property primary liable
  72. Right of Redemption
    • Allows a mortgagor in default to pay off the amount owned& any interest prior to foreclosure
    • If mortgagor "redeems" he takes land free of mortgage even though previously defaulted
  73. Equitable Redempton
    Mortgagor must redeem before foreclosure
  74. Statutory Redemption
    Mortgagor may redeem even after forclosure. Usually 6months-1year
  75. Clogging
    • Provision in mortgage waiving the right to redeem. Invalid
    • can waive the right to redeem after foreclosure
  76. Priority of Montgages
    • 1st,2nd,3rd,etc....
    • Priority can change if: 1. M1 doesnt record
    • 2. M1 K's away his priority
    • 3. Purchase money mortgages is in effect
    • 4. M1 changes condition on mortgagor to pay
  77. Junior& Senior Interest
    • Senior cant be made a party to Junior forclosure action.( senior unaffeceted)
    • Juniors become apart of Seniors
    • In this case Jr's right to foreclose wipes out
  78. Purchase Money Mortgage
    • Mortgagor takes out a loanin order to buy property
    • Takes priority over other types of mortgages, even if those other types of mortgages were recorded earlier in time
  79. Installment Land Contracts
    • Title to property does not transfer to buyer until a series of ayments has been made
    • Buyer makes periodic payments and doesnt become the owner of the property until installments have all been paid [Doesnt take ownership until debt is fully paid]
  80. Default in an Installment Land sale K
    • 1. Forfeiture (buyes forfeits property& all prior payments)
    • 2. Grace Period (buyer granted period to pay off loan; may keep land)
    • 3. Forfeiture and restituition (seller gives back payments if> damages)
    • 4. fpreclosure (treated as mortgages)
    • 5. waiver of strict performance (when seller accepts late payments, seller may have waived right to timely payments. seller must send notice and allow reasonable time if selled wants on time payments again.
  81. RAP
    • Period of the rule begnds when creatng the instrument
    • Applies to: CR,EI,Options to purchase land not incident to lease,Powers of appointment,Rights of Refusal,Class Gifts.

    Doesnt Apply to: Present interest in possession,Reversions,Vested remainders,Possibilities of reverters,Powers of termination,Charitable trust,Resulting trust
  82. FS Subject to condition subsequent
    How to excercise right to rerentry
    • It may be accomplished by either making an entry on the and on bringing an action to recover the waste
    • Merely demanding not enough
  83. Restraint Against Alienation of an inheritable future Interest
    If the future interest will result in a fee simple, the restraint is void from its inception
  84. Options in a Lease hold K
    RAP does not apply
  85. Joint Tenancy
    When one tenants motgages holding under "Title theory"
    • Results in a termination of the joint tenacy because it terminates the unity of tile as well as the unity of interest
    • Other tenants interest not Encumbered by mortgage (takes free of mortgage)
  86. Joint Tenants
    (Death of a tenant)
    Joint tenancy is severed and the survior owns an undivided interest in the property
  87. Partition Proceedings
    Equity court has judicial athority over partition proceedings. Individual property owners cannot over ride. The jurisdiction of the equity court
  88. Estopeel by Deed
    only apples when a person conveys large estate than he has and later acquires
  89. Profits
    When regarded as real property?
    • Regarded as real property if:
    • 1. its for an indefinite time
    • 2. its for the life of a human being
    • Holder is entited to share in a condemnation award where profit interest is extinguished by imminent domain
  90. Just Compensation
    Must always be paid to landowner on EMINENT DOMAIN and INVERSE CONDEMNATION
  91. Assignee Back Rent
    Not liable for previous assignnees unpaid rent
  92. Tenant's Transfer Right of Possession
    • entire interest= assignment
    • Less than entire= sublease
  93. (Common Law)
    Independence of Covenants
    • Tenants rights independent of LL rights and duties
    • tenant not relieved of duties if LL doesnt do their (separate K suit)
  94. Trade Fixures
    • chattels annexed to the land by a tenant for pecuniary gain during tenancy
    • - Removable by tenant unless accession occurs.
    • Accession (built it enough to lose identity of trade fixture) - structually attached
  95. Damages:
    lateral support
    (American Rule)
    • limited damages may not include artificial structures
    • if negligence may be liable
  96. Fructus Industrials
    (Emblements)
    Growing crops are generally classified as personal property and will pass w/ a sale or mortgage of the land
  97. Riparian Water Rights
    Domestic use> commercial and aggriculture
  98. Pror Appropriation Water Rights
    • 1st in time, 1st in right
    • Reqs: 1. Intent to apprpriate water
    • 2. Divdrt water from source
    • 3. Put water to beneficial use may use on riparian and non- ripiran lands
    • no distinction on type of use
  99. Tenancy in Common
    • No unity of possession; Each tenant owns an undivided fractional part of the property
    • no right to survivorship
  100. 3 ways
    Conveyances are commonly validated
    • 1. Unrecorded deeds
    • 2. Forged deeds
    • 3. Non- delivery of deeds
  101. Uniform Vendorn& Purchaser's
    Risk Act
    • risk of loss on seller during period after K signed UNTIL: 1. The purchaser take possession
    • 2. When legal title passes.

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