How is a joint tenancy created?
"To A & B with the right of survivorship"
What are the 4 unities required for joint tenancy creation?
(1) same interest (2) same document / instrument (created by) (3) both people (or more) have an equal right to possess / use property (4) same time
What are the requirements for a deed to be valid?
(1) in writing (SOF) (2) adequate description of land (3) identification of grantor and grantee (4) deed shows intent to convey (5) Signed by Grantor
What happens of the grantee's name is not shown in a deed?
May be invalid. However, some states allow grantees to add themselves to the writing.
Adverse possession elements? (Easy one)
(1) Continuous
(2) Open
(3) Notorious
(4) actual
(5) Exclusive
(6) Hostile
Requirements for a covenant benefit to run with the land?
(1) in writing
(2) intent for it to run
(3) vertical privity
(4) touch and concern
Note: Horizontal privity is not required
Requirements for a covenant burden to run with the land?
(1) parties intended the burden to run
(2) touches / concerns the land
(3) party burdened has notice of it
(4) Horizontal AND vertical privity
What are the requirements to create an equitable servitude?
(1) in writing
(2) buyer has notice
(3) intent that the an equitable servitude be created
(4) the equitable servitude touches / concerns the land
What is the holdover doctrine? When is it implicated? What is the term of the new lease? What rent amount does the tenant have to pay if rent was increased?
(1) Holdover when: Tenant stays beyond the term of a lease
(2) Rent:
If Tenant was notified of rent increase => pays NEW rent amount
If Tenant was no notified of rent increase => pays OLD rent amount
(3) Term
If residential holdover => periodic month-to-month term
If commercial holdover => year-to-year term
Can fixtures be removed from a property when the lease is finished?
What happens if a deed is slightly incorrect? Example: Deed says 1329 acres, when the land is actually 1319 acres. Is the deed invalid?
Not invalid. However, the physical description (not the quantity shown in the deed) will be used to determine the size of the property.
What is the difference between "Assuming a mortgage" and taking "subject to" the mortgage? Bank can sue the buyer or foreclose, but not sue the seller.
Assuming the mortgage: seller is released from liability on them mortgage.
Taking subject to the mortgage: the seller of the property remains personally liable and primarily liable (must pay the lender if the buyer doesn't). Bank can foreclose or sue the buyer or sue the seller.
What are the three types of future interests to which the rule against perpetuities (RAP) applies?
(1) Executory interests
(2) Any remainders that are contingent
(3) Vested remainders subject to open
What is the effect (discount) on rent when there is a complete or partial condemnation of the property being rented?
Complete: (1) the lease is automatically terminated, (2) there is no further rent owed
Partial: Amount of rent do is proportional to the loss of use. If 50% of the rented land is no longer usable, 50% of the rent is owed. Lease is not automatically terminated.
Must owners of an easement keep the easement in good condition?
Yes.
What are the 2 types of zoning schemes?
(1) Cumulative: land may be used for zoned purpose or any higher purpose
(2) Non-Cumulative: land may be used ONLY the zoned purpose
How is a new non-conforming use of land grandfathered?
In most situations, non-conformance can continue indefinitely — any change in use must comply with NEW zoning.
What are fixtures?
Items that are sufficiently / permanently attached to the land such that no longer are considered personal property.
May fixtures be repossessed?
Only if they can be moved without difficulty (without causing damage to the property).
What is the status of a property seller if they sell the house, deliver the deed, and have not left the premises?
They may be a licensee. However, upon notice, they are a trespasser.
Dan leases a property to Jen in Gulfport FL for 300 years. The lease includes a right of first refusal if Dan decides to sell the property. Jen assigns the remainder of the 300 year lease to Krissy. Dan puts the property up for sale. May Krissy enforce the Right of first refusal to her own benefit?
Yes, because this is a covenant that would run with the land.
What effect is caused when a senior mortgage is modified substantially (i.e., interest rate or amount of principle)?
The senior mortgage becomes junior to then existing junior mortgages.
What is a material modification?
Altering the interest rate or changing the principal balance.
May mortgage agreements prohibit early payment or charge an early payment fee?
Yes, both are valid and enforceable.
What are 2 examples of non-material mortgage modifications that will not change priority?
(1) Extending the length of the mortgage term
(2) Rescheduling mortgage payments
Define the shelter rule.
If a person obtains a property from a bona fide purchaser, their priority is superior to others to the same extent that the bona fide purchaser's priority would be. Essentially, the priority of the bona fide purchaser transfers to the person (even if they were aware of previous unrecorded interests).
Joint Tenancy: What is the lien theory?
A unilateral mortgage by one of the joint tenants DOES NOT destroy the joint tenancy.
Joint Tenancy: What is the title theory?
A unilateral mortgage by one of the joint tenants DOES destroy the joint tenancy.
If a tenant assigns their lease to another, who is responsible for adhering to covenants on leased property?
Both the first tenant and the assignee tenant.
When are negative equitable servitudes implied and binding on ALL parcels in a subdivision when only some of the parcels included the servitude in their deeds?
The equitable servitude is still binding when . . .
(1) a common scheme of development exists
And
(2) the purchaser has notice of the negative equitable servitude (actual, inquiry, or record notice).
What is a profit?
In the context of real property, a profit is an interest in land that is no possessory. It allows a person to enter the land and use and or remove resources (fishing, diamond mining, wheat harvesting, etc.).
Title Insurance: Who does an Owner’s policy protect and who does it not protect?
An owner's policy protects ONLY the person who owns the policy (go figure . . . ).
Who does a lender’s policy protect and not protect?
A lender's policy will still protect after the mortgage is assigned.
If someone mortgages their life estate, is it binding on the remaindermen?
Generally no. However, it will be binding on the remaindermen IF they consent.
What is the statutory right of redemption?
The SROR gives the borrower the right to redeem the property even AFTER a foreclosure sale (at the foreclosure price).
What level liability is used when determining a neighbor's liability for not providing lateral support to the land of the surrounding properties.
Strict liability.
May person recover under a nuisance claim even if they were not personally annoyed?
Yes. The standard is whether a reasonable person would be annoyed, not whether the property owner was actually annoyed.
Tenants in common: what is the common law rule for sharing profits?
Co-tenants don’t owe one another for rental value or the property OR income from the property.
What is the primary exception to the general rule that tenants and common do not owe profits to one another?
When the profit is the result from rental to a 3rd party.
When someone validly obtains title to property via adverse possession, is the land subject to previous covenants that ran with the land?
Nope. Covenant free.
When does a purchaser of land take title free of previous / valid easements?
When they are a BFP without notice
BFP = Bona Fide Purchaser
After a foreclosure sale, what is the priority of debts to be paid off?
First Priority: Incidental costs of the foreclosure sale
Second Priority: the interest that was itself foreclosed
Third Priority: junior interests
Fourth (last) Priority: any surplus goes to the mortgagor
Are future advance mortgages valid and enforceable?
Yes. The same property can be used as collateral for loans in the future.
What is the difference between arguing the covenant of and the implied ?
Quiet enjoyment: the tenant MUST vacate
Habitability: the tenant need not vacate (can argue it either way)
Watch out when a grantor reserves an easement to someone else. . .
Easements may only be reserved for the benefit of the grantor. Attempts to obtain easements for anyone that is not the grantor is void.