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Real Property - Coggle Diagram

- - - - Assuming an existing mortgage means the mortgage is transferred from the mortgagor/grantor to the grantee. The grantee assumes the mortgage via an agreement and must pay off the grantor's debt to the mortgage.
        
        Absent a later modification agreement between the grantee and mortgagee that removes the mortgagor/grantor from the dispute, the mortgagor/grantor remains on the hook for a default. Thus, when a default occurs, the mortgagee may:
        
        Sue grantee on the debt as the grantee is primarily liable; or
        
        Sue mortgagee/grantor on the debt as secondarily liable
        
        Mortgagor/grantor could then seek reimbursement from the grantee personally
        
        Foreclose on the real property;
      - Taking property "subject to" an existing mortgage also begins with a pre-existing mortgage on the property that is transferred from the mortgagor/grantor to the grantee.
        
        The difference is that the grantee does not sign an assumption agreement and so does not assume the existing mortgage, but takes the property "subject to the mortgage." In this case, the mortgagor/grantor remains on the hook to the mortgagee, but the grantee is not on the hook to the mortgage
        
        Thus, when a default occurs, the mortgagee may:
        
        Foreclose on the real property now owned by the grantee; or
        
        Sue the mortgagor/grantor on the debt
        
        Could then foreclose on the property, but may not successfully pursue a personal action against the grantee
    - - Every mortgagee may redeem "up" by paying off and acquiring any mortgages of higher priority. For example, mortgagee 2 could "redeem" from mortgagee 1, and mortgagor then owes both mortgages to mortgagee 2. In addition, a mortgagee can foreclose "down," thereby wiping out mortgages and other interests of lower priority
      - A foreclosure sale wipes out all later mortgages - those coming later in time than the mortgage being foreclosed - but does not wipe out prior mortgages
- - - - Exclusive
      - Actual
      - Continuous possession for the statutory period
        
        An adverse possessor must possess the premises for the requisite time period. The specific timing requirements are set out by state statute
        
        If the adverse possessor has not been in possession for the full statutory possession, he may still meet the time period by tacking his period of possession onto that period of possession of another possessor if the possessors are in privity of estate
        
        Privity of estate exists when there has been a voluntary transfer of possession from the first adverse possessor to the second adverse possessor, such as by deed.
        
        The statutory period may also be tolled if the owner has a disability at the time the adverse possessor enters
      - Non-permissive (hostile)
      - Open and notorious
  - - - In a special warranty deed, the grantor warrants that no title defects occurred during his ownership of the property, but does not warrant against title defects that occurred prior to his ownership
      - In a quitclaim deed, the grantor provides no warranties. The grantee takes whatever interest the grantor had
      - In a general warranty deed, the grantor warrants that no title defects exist in the chain of title
    - - Present covenants are broken, if at all, only at the time of conveyance, and a grantee has a limited time to make a claim. Present covenants generally do not run with the land to remote grantees.
      - Future covenants may be broken after the time of conveyance and do run with the land to subsequent purchasers
    - - Present covenants
        
        Covenant of right to convey: grantor has the right to convey the property. This differs from the covenant of seisin as a trustee be be seised of the fee but barred from conveying the property by the trust document
        
        Covenant against encumbrances: grantor promises that there are no encumbrances. No third person has a right that diminishes the value or limits the use of the land granted, including:
        
        Leases;
        
        Water rights;
        
        Taxes;
        
        Easements; and
        
        Mortgage and judgment liens;
        
        Restrictions on use
        
        Covenant of seisin: grantor owns and possesses the estate granted. Existence of an encumbrance does not breach the covenant
      - Future covenanrs
        
        Covenant of warranty: grantor covenants that he will assist in defending title against valid claims and will compensate the grantee for losses sustained by the assertion of superior title
        
        Covenant of further assurances: grantor promises to take whatever steps may be required to perfect title defects
        
        Covenant of quiet enjoyment: grantor covenants that the grantee will not be disturbed by a superior claim
    - - Delivery is usually accomplished by the physical act of handling the deed over to someone else. Mere words including a declaration of intent and relinquishment of control can accomplish delivery
        
        A presumption of delivery arises if:
        
        The deed is later found in the grantee's possession;
        
        The deed is properly executed and recorded; or
        
        The deed contains an attestation clause that attests to delivery
        
        Handing the deed to an agent does not constitute delivery until the agent delivers the deed to the grantee or grantee's agent. That triggers the doctrine of relation back as long as the grantor relinquishes all control over the deed
        
        When delivery is accomplished through the agent, delivery relates back to the date the grantor handed the deed to the agent
      - Grantor must intend to transfer the interest immediately. Will formalities must be observed if the deed is to take effect only upon the grantor's death
    - - Courses and angles
      - Distances
      - Artificial monuments
      - Name and quantity
      - Natural monuments
  - - - Under a notice statute, an unrecorded conveyance is invalid against a subsequent bona fide purchaser for value and without notice
        
        To prevail under a notice statute, a claimant must prove:
        
        The claimant was a bona fide purchaser for value; and
        
        The claimant took the property without actual, constructive, or inquiry notice
        
        Constructive notice exists if the other party's deed is recorded in the proper chain of title in the record books.
        
        Inquiry notice exists if the appearance of the property is such that the claimant should have asked more questions about the property's title. A quitclaim deed gives rise to inquiry notice
        
        The claimant took subsequent in time to another person claiming ownership;
      - Under a race-notice statute, an unrecorded conveyance is invalid against a subsequent bona fide purchaser for value who takes without notice and records first.
        
        To prevail under a race-notice statute, the claimant must prove:
        
        The claimant took subsequent in time to another person claiming ownership;
        
        The claimant was a bona fide purchaser for value;
        
        The claimant took the property without actual, constructive, or inquiry notice; and
        
        The claimant recorded first
      - Under the race statute, the person who records first prevails
      - The Shelter rule provides protection for a subsequent purchaser who does not satisfy the applicable recording statute. Under the shelter rule, a person who is a successor in interest to a person protected by the recording statute is also protected
- - - - Periodic - set beginning and continues from period to period, such as month-to-month, without a set termination date until notice is given. Notice must be at the end of period. The required notice is measured by the rent payment clause (one full period), but no longer than six months
      - At will - no fixed duration. Terminates if either party dies; the tenant commits waste; the tenant attempts to assign his interest; the landlord transfers his interest; or the landlord transfers the premises to a third party for a term of years. Most states provide for 30 days' notice
      - Term of years - definite beginning and end. No notice required to terminate
      - Tenancy at Sufferance/Holdover Tenancy - tenant remains in possession of the leased premises after the end of the lease term. The landlord can recover possession and receive the reasonable rental value for the holdover period
    - - Duties of landlord:
        
        Deliver legal right to possession of premises
        
        Water and heat
        
        Duties in lease document
        
        Quiet enjoyment
        
        Implied warranty of habitability
      - Duties of tenant:
        
        Pay rent
        
        Repair
        
        Other duties as contracted
        
        Not commit waste
    - - A tenant abandons the premises if it vacates the premises without intending to return and fails to pay rent. The landlord may then retake the premises, ignore the abandonment, and continue to hold the tenant liable for rent or reenter and relet the premises.
      - The landlord has a duty to mitigate its damages. Retaliatory eviction in response to tenant's complaints about the landlord is prohibited in most states
  - - - Interests not subject to RAP:
        
        Charitable trusts
        
        Resulting trusts
        
        Present possessory estates
        
        Fully vested interests at creation, such as revisionary interests and completely vested remainders
      - Interests subject to RAP:
        
        Powers of appointment
        
        Rights of first refusal
        
        Options to purchase land
        
        Interests not fully vested at creation, such as:
        
        Contingent remainders
        
        Executory interests
        
        Remainders subject to open
        
        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
  - - - Tenancy in Common
        
        Possession - unity of possession: each joint tenant has the right to possess the whole
        
        Transfer - co-tenant may transfer its own interest inter vivos (gift between living people)
        
        Divisibility - co-tenant may devise its own interest and the interest can descend by intestacy
      - Joint Tenancy - each co-tenant owns an undivided interest in the whole and has a right of survivorship
        
        Four unities required
        
        Unity of time - joint tenants must take at the same time
        
        Unity of title - joint tenants must take by the same instrument
        
        Unity of interest - joint tenants must take equal shares of the same type
        
        Unity of possession - each joint tenant has the right to possess the whole
        
        Severed - joint tenancy is severed if one joint tenant conveys his interest voluntarily or involuntarily (creditor forces sale). Tenancy in common then results
        
        Right of survivorship - at the death of one joint tenant, the interest of the surviving joint tenant absorbs the interest of the deceased joint tenant. Only the last surviving joint tenant has an interest that is devisable
      - Tenancy by the Entirety - reserved for married couples. Presumed in some states if conveyance to a married couple. Gives each spouse an undivided interest in the whole and a right of survivorship
  - - - Duty to pay mortgage interest
      - Duty to pay all ordinary taxes
      - Duty to repair and maintain
      - 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
      - Duty to not adversely affect the future interest (waste)
- - - - Most easements are affirmative, which gives the holder the right to do something on the land of another
      - A negative easement gives the holder the right to prevent a landowner from doing something on the land. The common law recognizes negative easements regarding light, air, water, and lateral and subjacent support. A writing is always required for a negative easement.
      - An easement appurtenant requires a dominant and servient tenement.
      - An easement in gross is personal in nature, resulting in a servient but not a dominant estate
    - - The Statute of Frauds applies to a writing
      - An affirmative easement may be created by implication either by prior use or by necessity. An affirmative easement may also be created by prescription, which is similar to adverse possession, requiring use of the property that is open and notorious, continuous, exclusive, actual, and non-permissive (hostile). These are the same requirements as adverse possession
      - Creation of an easement by estoppel requires proof of an act or representation by the owner of the burdened estate in respect to the easement, justifiable reliance on that act or representation by the owner, and damages suffered by the owner of the benefited estate
    - - Estoppel;
      - By prescription; or
      - When the dominant and servient estates come into common ownership;
      - When a governmental body acquires the servient estate through an exercise of the eminent domain power
      - When the holder of the dominant estate releases his interest to the holder of the servient estate;
      - End of a time period, if easement created for a specific term;
      - Abandonment;
  - - - In contrast to easements, most running covenants are negative in nature
      - Running covenants include promises to pay rent, condominium common charges, and maintenance fees These are said to touch and concern the land.
      - Covenants run with the land when there is a writing, intent, horizontal and vertical privity, touch and concern, and notice
        
        Horizontal privity refers to the relationship between the original covenantor and covenantee. This requirement is satisfied by a conveyance of land between the covenantee and covenantor, which occurs by the same deed that includes the covenant
        
        Vertical privity refers to the relationship between an original party to a running covenant and the successor in interest to the original party. The successor steps into the shoes of the original party.
        
        A covenant touches and concerns the land when the covenant exercises direct influence on the occupation, use, or enjoyment of the premises
    - - An equitable servitude also exists when the plaintiff cannot establish at law all of the elements, but the plaintiff can demonstrate the relaxed requirements for an equitable servitude. For example, as an equity doctrine, if one of the covenant requirements is not met, a court may impose an equitable servitude such as when the covenant is not in writing. The plaintiff may prove the covenant through part performance or estoppel
- - - - Encumbrances such as mortgages, liens, easements, leases, and covenants
        
        Be careful: Seller may satisfy a mortgage or lien at closing with the proceeds
      - Encroachment of your improvements onto another's land, or encroachments of another onto your land
      - Defects in the chain of title, such as adverse possession, defective execution of a deed, or significant variation of the description of the land
      - Zoning and other land use restrictions do not render title unmarketable unless a zoning violation exists