ESTATES IN LAND
How is a joint tenancy severed?
- conveyance (mortgages in title jurisdiction; foreclosure in lien jurisdiction)
- contract to convey
Tenancy for Years and Periodic Tenancy: how are these two connected?
A tenancy for years that is not in writing is a periodic tenancy.
Tenancy for years is automatically terminated whereas a periodic tenancy requires notice prior to termination.
In what ways may an easement be created?
- writing
- reservation (owner sells land but reserves right to use tract of land for special purpose; may not be conveyed)
- necessity
- implication
- prescription
How can a land contract be executed in absence of a writing?
Part performance by the seller by doing 2/3 things:
- possession
- improvement
- payment
Assumption of Mortgage v. Subject to Mortgage
Assumption = personal liability; original mortgagee is secondarily liable
Subject = no personal liability
What interests do RAP apply to?
- executory interest
- contingent remainder
- class gifts
- options and rights of first refusal
- powers of appointment
If landlord notifies tenant of an increase in rent prior to tenant's holding over, does the tenant have to pay the new rent price or the price of their original lease?
The new rent price.
What is required for an easement to be terminated by abandonment?
There must be a physical act showing an intention to abandon.
When is a deed effective?
Upon delivery.
What is the right to redemption? Statutory right to redemption?
Statutory right to redemption allows a mortgagor the right to redeem for a fixed period (specified by statute) after the foreclosure sale.
What is an ouster and what is the remedy if it occurs?
Ouster is the wrongful exclusion of a co-tenant from their right to the property.
If an ouster happens the harmed tenant may receive fair rental value for the time they were ousted.
Is a residential tenant bound by a covenant to repair? How about a commercial tenant?
A landlord is still liable for repairs in a residential tenant under the implied warranty of habitability, even where the residential tenant has agreed to a covenant to repair.
A landlord is not liable for repairs in a commerical contract where a the tenant agrees to a covenant to repair.
If an easement is required to be in writing but isn't, what happens to the easement?
It becomes a license.
What are the three types of deeds?
Warranty, quitclaim, and special warranty
Yes, but not in the actual mortgage itself. (that is called "clogging the equity of redemption")
The right can be waived in a separate document for consideration.
What are the three types of waste?
Ameliorative (change that increases the value of the property)
Permissive (failure to make required repairs or payments like taxes)
Affirmative (exploitation of natural resources)
When a lease has been assigned, may the original tenant be held liable for rent?
Yes because of privity of contract.
May a license be transferred by conveyance? A profit? A non-exclusive profit?
No.
Yes. Yes.
What are the six warranties in a warranty deed?
- Seisen (grantor has interest they purport to convey)
- Right to Convey (grantor has power to convey)
- Encumbrances (no encumbrances on the land, includes mortgages)
- Quiet Enjoyment (no disruption by lawful third party claim)
- Warranty (grantor will defend on behalf of grantee and compensate for any loss)
- Further Assurances (to correct any mishaps that cause imperfect title)
What effect does an acceleration clause have on the right to redeem?
Where an acceleration clause is in effect, instead of paying the delinquent amount, the mortgagor must pay the full amount owed to redeem property.
What are the three types of restraints on alienation?
Disabling (NEVER VALID; complete restraint)
Forfeiture (valid in fee simple (if reasonable) & life estate; restraint on attempts to convey)
Promissory (valid in fee simple (if reasonable) & life estate; conveyance violates condition of conveyance)
Is a sublessee liable to the landlord for any of the convenants in the lease?
No, but a sublessee may assume the covenants of the lease and thereby be held liable for them. Assumption must be express.
What are some defenses to enforcement of an equitable servitude?
- unclean hands
- estoppel
- changed neighborhood conditions
- BFP
Race - first to record
Notice - last grantee with no knowledge or record
Race Notice - first to record w/o notice
What may a mortgagee do if the balance is not satified after the foreclosure sale?
Deficiency judgment.