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Property (Rights in Real Property (Covenant (Equitable servitude (Exists…
Property
Rights in Real Property
Easements
Can be terminated by:
End of a time period
When the holder of the dominant estate releases their interest to the holder of the servient estate
When the dominant and servient estates come into common ownership
Abandonment
Estoppel
Prescription
Government body acquires it
License
Privilege to do something on someone else's land
Covenant
Promise that attaches to the land
Equitable servitude
Exists if the plaintiff can establish all the elements for a covenant that runs with the land
Zoning
State can regulate for health, safety, and welfare concerns
Taking
When the government exercises its eminent domain power to take private property
Real Estate Contracts
Statute of Frauds
Writing must include
Description of the property
Description of the parties
Price
Any conditions of price or payment agreed upon
Marketable title
Title is not reasonably free from doubt if it contains any of the following defects:
Defects in the chain of title, such as adverse possession, defective execution of a dead, or significant variation of the description of the land.
Encumbrances such as mortgages, liens, easements, leases, and covenants
Caution: Seller may satisfy a mortgage or lien at closing with the proceeds
Enroachment of your improvements onto another's land, or enroachments of another onto your land
Zoning and other land use restrictions do not render title unmarketable unless zoning violation exists
Covenants merge into the deed at closing
Seller must disclose all material latent defects known to the seller
Remedies must include:
Expectation damages
Foreseeable consequential damages
Reasonable reliance damages
Retaining the down payment
Liquidated damages
Ownership of Real Property
Life Estates
Duty to not adversely affect the future interest (waste):
Duty to repair and maintain
Duty to pay mortgage interest
Duty to pay all ordinary taxes
Duty to pay the full cost of special assessments if the life of the public improvement is less than the duration of the life tenant's estate.
Equitable apportionment is applied to improvements likely to last longer
Rule Against Perpetuities (RAP)
Identify whether or not the interest is subject to RAP:
Interests not subject to RAP:
Presents possessory estates
Charitable trusts
Resulting trusts
Fully vested interests at creation, such as reversionary interests and completely vested remainders
Interests subject to RAP:
Option to purchase land
Powers of appointment
Rights of first refusal
Interests not fully vested at creation, such as:
Remainders subject to open
Contingent remainders
Executory interests
Identify the life or lives in being, express or implied
Determine whether the interest will for certain either vest or fail to vest within 21 years of the life or lives in being
Concurrent Estates
Tenancy in Common: Each co-tenant owns an undivided interest in the whole with no right of survivorship. Presumed form of co-ownership
Possession: Unity of possession
Transfer: co-tenant may transfer their interest inter vivos
Divisibility: Co-tenant may devise their interest and the interest and the interest descend by intestacy
Joint Tenancy: Each co-tenant owns an undivided interest in the whole and has a right of survivorship
Four unties:
Unity of time
Unity of title
Unity of interest
Unity of possession
Right of survivcrship
Severed: Once severed it becomes a tenancy in common
Tenancy by the Entirety: Reserved for married couples
Landlord-tenant
Terms of years: Beginning and end
Periodic: period to period
At will: no fixed duration
Tenancy at Sufferance/Holdover Tenancy: tenant remains in possession of the leased premises after the end of the lease term
Duties
Tenant
Pay rent
Not commit waste
Repair
Any contracted duties
Landlord
Deliver legal right of possession of premises
Water and heat
Duties in lease document
Quiet enjoyment
Implied warranty of habitability
Mortgaged Security Devices
Three mortgage theories:
Title theory: Mortgages receives legal title to the mortgaged real property and has the right to take possession
Lien theory: Mortgages receives a lien and the mortgagor retains legal and equitable title and possession to the mortgaged property unless and until foreclosure occurs
Intermediate theory: Mortgagor retains legal title until default occurs
Waste
Fails to pay taxes or governmental assessments
Makes physical changes to property that reduces its value
Fails to maintain and repair the property in a reasonable manner, except for repair of casualty or acts of third parties not the fault of the mortgagor
Fails to comply materially with mortgage covenants respecting the physical care, maintenance, construction, demolition, or insurance against casualty or the property
Fails to comply materially with the mortgage covenants respecting the phsycial care, maintenance, consruction, demolition, or insurance against casualty of the property or improvements on it
Retains rents to which the mortgage has a right of possession
Assuming
When a default occurs:
Foreclose on the real property
Sue grantee on the debt as the grantee is primarily liable
Sue mortgagor/grantor on the debt as secondarily liable
Subject to
When a default occurs:
Foreclosure
Sue the mortgagor/debtor
Titles
Adverse Possession
Open and notorious
Continuous possession for the statutory period
Exclusive
Actual
Non-permissive (hostile)
Deeds
General Warranty Deed
Special Warranty Deed
Quitclaim Deed
Recording: Deed not required to validate the transfer of title
Three Recording Statutes:
Race statute
Notice Statute
Race-notice statute
Shelter Rule provides protection for subsequent purchaser