Assume Mortgage
When a grantee assumes the mortgage, the granteee expressly promoises the grantor-mortagor that he will pay the motrgage obligation as it become due.
- the mortgagee then becomes a 3rd party beneficiary of the grantee’s promise to pay and can sue the grantee directly if the grantee fails to pay.
- after the assumption, the grantor-mortgagor becomes a surety who is 2nd liable to the mortgagee on the note if the grantee fails to pay.
Tenancy By entirety (Mortgage)
This type of tenancy is a special joint tenancy held by married couples.
- it carries right of survivorship
- Terminates only with the death of the spouse, divorce, mutual agreement, or execution by joint creditors of both spouses.
- Both spouses must join in a mortgage, because one spouse acting alone cannot convey or encumber the property.
Natural Flow Theory
A landowner cannot alter the rate or manner of natural flow of surface water where such actions would injure others above or below him.
Adverse Possession: Hostile
Hostile intent does not require that the possessor realize that the land is not their own.
- for the purpose of adverse possession, the land owner possession was hostile by virtue of the fact that it was without permission and in in derogation of the neighbors rights.
Easement: Scope
Basic change in the nature of the use of an easement is not allowed.
Easement By Necessity (Common Owners)
Arises only when the owner of a single tact land sells a portion of tact that has no access to a public road or utility.
Marketable Title (Implied Covenant)
Violation of zoning even slight is unmarketable.
- There is an implied covenant in every land sale contract that at closing the seller will provide marketable title.
Constructive Eviction
Provides that where a LandLord does an act or fails to perform some service that he has a legal duty to provide, and thereby make the property uninhabitable, the tenant may terminate the lease and seek damages.
- To Claim Constructive Eviction
1) The injuries act was cased by the LandLord
2) The premises in uninhabitable, and
3) The tenant vacate the premises.
Fixture v. Real Si
Interest chattel affixed to land, whichever interest is first recorded local real estate record wins.
- While a purchase money SI can gain priority if it is recorded within 20 days of affixation.
Landlord Tenant (latent defect)
General Rule:
* Landlord is not liable for Latent defects unless the Landlord either knew or had reasonable to know of the defect.
Exception
*If the lease is for short term and the prop is furnished.
Landlord Tenant (latent defect)
Exception
If the lease is for short term and the prop is furnished.
Covenant of the Right to Convey
General Warranty Deed:
* Is one which the grantor convenants against title defect created both by himself and by all prior holder.
- Covenant of the Right to Convey:
a) a covenant that granters has the power and authority to make the grant.
b) is a present covenant that is breached at time of conveyance if grantor is not the owner of the interest of Property to convey.
Implied Habitability Warranty
Genearl Rule CL:
* The landlord was not liable to the tenant for damages caused by the failure to maintain the premises during the period of lease hold.
Majority:
* Provide for an implied warranty ofhabitiablity for resdiendtail tenatns.
- ** Standard:
- Conditions reasonablly suited for human residence.
- ** LL Breach
- Tenant May:
1) Terminate Lease
2) Make Repairs and offset teir cost for future rent
3) Abate Rent
4) Seek Damages
- Tenant May:
Subdivisions
Restrictive Covenant
On all lots in a subdivision can be voided if changed conditions have made the property unusable for the specified use, and this means that the entire subdivision must have changed so significantly that enforcement of the restriction would be inequitable .
Delivery of Deed
If grantor intends the recording of the deed to be final act in vesting title in the grantee, then such recording creates a presumption of delivery even where grantee did not know of recordation.
Class Gift
Gestation
A person in gestation at the time of distribution is included.
Commercial Hold Over
Unless a residential lease, a year to year tenancy resulting from holding over if the original terms was for a year or more.
Exception Unmarketable Title
Majority:
_ held that a Beneficial easement that was visible and known to the buyer does not constitute an encumbrance.
Conveyance by Co-Tenant (JT)
A Conveyance of a co-tenant interest in a joint tenancy property severs the joingt tenancy, and that interest is subsequent held as a tenancy in common with the other co-tenant.
General Warranty
Quite Enjoyment
Is a breach when the grantee is evicted by a 3rd party with paramount title.. i.e. title or ownership of the estate conveyance that is superior to grantors title.
Mistake or inconsistency description
Where there is a mistake or Inconsistency in the description of property in the deed, one rule of construction is that the physical description take precedent over the quantity description, unless grounds for reformation.
Condemnation: Non exclusive Profit
Profit:
- is a non possessory interest in land
- holder of the profit is entitled to enter servient tenanament and take.
Non Exclusive:
* may grant similar to other or take it self
Condemnation:
* is entitled to compensation in any condemnation proceeding.
Propert
Land Support
A landowner has a right to have his land supported in its natural state by adjoining land.
- if however, the land has a building on it, an excavating agacent landowner is Strictly LIable for damages to building cause by the excavation only if the excavation would have cause the land to subside even in its natural state.
- or liable for negligence.
Purchase Money Mortgage
- Will take priority over 3rd party purchase money mortgage.
- Modification will make it subject to junior lien, even if priority.
