Term
| Searching a Title process |
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Definition
Ascertain chain of title (back to the government grant)
Determine adverse conveyances
Study each document for problems
Check relevant documents in other offices: tax liens, judgment liens, probate records |
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Term
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Definition
1st grantee to record wins
Irrelevant that 1st to record knows about prior unrecorded interest
Used in only a few states |
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Term
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Definition
2nd grantee wins if:
no notice of prior interest at time of purchase and
records first |
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Term
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Definition
2nd grantee wins if:
no notice of prior interest
no filing needed to protect against prior interest |
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Term
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Definition
Use of land that is revocable by servient tenant
contract right not true interest in land
longer the term gets the closer it leans to an easement |
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Term
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Definition
right to a limited use or enjoyment of another's land
not a right to possess
protected against 3rd party interference including the land owner |
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Term
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Definition
Easement holder may do something on the servient tenement
(most easements) |
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Term
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Definition
| Easement holder may prevent something from being done on the servient tenement |
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Term
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Definition
| Land burdened by the easement |
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Term
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Definition
| Land benefited by the easement |
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Term
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Definition
Dominant tenant owns land benefited by the easement
Easement benefits the land |
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Term
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Definition
no benefited land
easement benefits a person, the dominant tenant |
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Term
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Definition
Dominant tenant also has right to remove a portion of servient land or its products
(soil, land, timber, crops) |
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Term
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Definition
Use of property which unreasonably interferes with the use and enjoyment of someone else's property.
Not required:
Physical intrusion
Negligence
Fault
Bad intent
Knowledge
Required:
Harm
based on ordinary person not "sensitive" |
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Term
| Nuisance factors to consider |
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Definition
Suitability of use to location
Compliance with zoning regulations
Priority of the offending activity (who was there 1st?)
Social utility of activity
Cost of avoiding the harm (plaintiff moving v. defendant stopping) |
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Term
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Definition
Injunction (stop nuisance)
Money damages (compensate for past harm)
Pay for ability to harm in the future (forced purchase of a servitude) |
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Term
| Lateral Support of Land (general rules) |
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Definition
Strictly liable for actions
No duty to protect land above
If replace natural support then have duty to maintain |
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Term
| Subjacent Support of Land (general rules) |
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Definition
| Duty to support underneath when sub-surface rights separated from surface rights |
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Term
| Surface Water (getting rid of approaches) |
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Definition
Natural Servitude (Civil Law Rule) (Natural Flow Rule)
Common Enemy Rule
Reasonable Use Rule |
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Term
| Natural Servitude (Civil Law Rule) (Natural Flow Rule) |
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Definition
landowner's right: water to flow away
landowner's duty: permit water to flow over
Can't change the natural contour (some courts permit reasonable alterations) |
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Term
| Common Enemy Rule (surface water) |
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Definition
| Landowner can take steps to remove water, and prevent water from coming onto land (some courts have reasonableness exception for artificial discharge) |
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Term
| Reasonable Use Rule (surface water) |
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Definition
Case-by-case evaluation
Like a nuisance based approach |
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Term
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Definition
| Can't divert or impound natural flow of surface water |
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Term
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Definition
| land physically adjacent to the watercourse AND in the same watershed as the watercourse (drains into same watercourse) |
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Term
| Surface Water (retaining) |
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Definition
| Rule of Capture: if you catch it you keep it |
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Term
| Riparian Land Absolute Rights |
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Definition
Unlimited, if no effect on flow
OR
Domestic use, even if it effects flow (not irrigation, or watering livestock) |
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Term
| Riparian Land Correlative Rights |
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Definition
common law: natural flow
Modern: reasonable use, factors to consider: purpose suitability, economic value, social value, harm to lower riparian, practicality of upper riparian avoiding the harm, and compromise possibilities |
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Term
| Source of Title approach (to changing riparian land size) |
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Definition
| cannot enlarge by purchasing adjoining land. Riparian land is decided when it's sectioned off by the government. to prevent inefficient use of resources |
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Term
| Unity of Title approach (to increasing riparian land size) |
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Definition
| Adjoining tracts purchased become riparian. this causes lower riparians uncertainty |
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Term
| Prior Appropriation System |
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Definition
Traditional: prior use (use it 1st it's yours)
Modern: permit from the government to right to water
Colorado Doctrine: no riparian rights. everything is governed by permits
California Doctrine (TX): riparian rights combined with prior appropriations |
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Term
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Definition
Navigable
Tidal
federal government has superior rights to all "navigable waterways" |
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Term
| Percolating Ground Water (common law rules) |
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Definition
Absolute Ownership Rule
English Rule
Rule of Capture (TX)
(can withdraw unlimited amount so long as not malicious or wasteful) |
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Term
| Percolating Groundwater (modern rules) |
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Definition
American Rule: reasonable use
Prior Appropriation
(key factor: will rain/snow recharge the source) |
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Term
| 3 Ownership Approaches (oil and gas) |
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Definition
1. Not owned until extracted
2. Ownership in Place
3. Government owned |
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Term
| Government regulations (oil and gas) |
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Definition
Well spacing regulations
Well production regulations
Slant drilling (usually prohibited) |
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Term
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Definition
| Land owner has a right to receive rainfall |
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Term
| Real Estate K's (basic requirements) |
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Definition
Contractual capacity of the parties
K has a legal purpose
Offer
Acceptance
Consideration
Statute of Frauds compliance (specific performance is allowed remedy) |
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Term
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Definition
1677
agreement had to be in writing and signed |
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Term
| Part performance (real estate K's) |
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Definition
K enforceable if proof of oral K plus:
possession by purchaser
possession plus payment
possession plus valuable improvements
possession plus change in position causing irreparable injury |
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Term
| Contents of Writing (real estate K's) |
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Definition
Identity of Buyer and Seller
Description of Property
Key terms (price, date of sale, etc.)
Signature (TX signed by party to be bound)
TX: has to include 14pt. font bold or uppercase parole evidence exclusion |
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Term
| Sources of Real Estate K Forms |
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Definition
State Real Estate Commission
State Bar Association
Commercial Publications (form books, computer programs)
User developed forms |
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Term
| Cons and Pros (of real estate K forms) |
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Definition
+
predictability in results
efficiency
save time
reduce errors
-
encourages lazy lawyering
can't draft exactly what client wants
lawyers can abuse
may not be up to date |
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Term
| When no performance time is stated in real estate K |
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Definition
reasonable time from K date
look at the exact facts of the case |
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Term
| When exact time for performance is stated in real estate K |
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Definition
"Time is of the essence" (put exact words in K)
look at surrounding circumstances, nature of property, stableness of markets |
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Term
| Surety (for financing real estate purchase) |
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Definition
co-signer
accommodation party
guarantor |
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Term
| 2 types of Purchase-Money Mortgages |
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Definition
owner financing
bank financing |
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Term
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Definition
most common method in TX
the Lender is called the beneficiary
the Trustee is 3rd party authorized to sell property if Purchaser fails to pay |
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Term
| Installment Land K aka K for Deed |
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Definition
| Purchaser does not receive deed until pays in full |
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Term
| Failure to pay (common law) |
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Definition
| Mortgagor loses everything |
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Term
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Definition
| Mortgagor gets property back if pays note if full |
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Term
| Reasonable Person Test (to determine merchantable title) |
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Definition
| Title not subject to doubt by reasonable person purchasing the property. TX. |
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Term
| Specific Performance Test (to determine merchantable title) |
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Definition
| Title good enough that a court would order specific performance of sales K |
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Term
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Definition
| Mortgagee forgives the debt and keeps the property |
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Term
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Definition
| most common. Property is auctioned off. mortgagee gets amount left on the debt and the rest goes to pay the mortgagor's other debts. done 1st Tuesday of each month from 10-4pm in TX |
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Term
| Failure to pay Deed of Trust |
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Definition
| Trustee can sell without the court proceedings. faster and cheaper than traditional mortgages. If sale brings more money than the debt, the purchaser gets it. If sale brings less than the debt, the purchaser can be sued for the remainder |
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Term
| What makes a title un-merchantable? |
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Definition
Interest is less than FSA
Encumbrances (mortgages, tax liens, etc.)
Restrictions (covenants, easements, etc.)
Lack of Vertical Privity (break in chain of title) |
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Term
| Before Seller is in breach for un-merchantable title, Buyer must: |
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Definition
Give seller notice of the defects and
Allow seller a reasonable time to fix and
One party must TENDER (buyer tenders money or seller tenders the deed) |
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Term
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Definition
Remedy for un-merchantable title,
bring all claimants to court and hash it out |
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Term
| Why would a seller ASSIGN her rights under the K? |
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Definition
| In order to get money their money early |
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Term
| Why would a buyer ASSIGN their rights under a real estate K? |
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Definition
they can make profit from someone wanting to pay more
or
just do not want property anymore |
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Term
| Purchaser's remedies (under a real estate K) |
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Definition
1. terminate K and recover down-payment and out of pocket expenses
2. Specific Performance (force seller to sell)
3. Damages |
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Term
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Definition
| Automatically ends when time runs out and the landlord's reversion kicks in |
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Term
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Definition
| For a fixed term that automatically renews unless steps are taken to terminate. month to month or year to year |
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Term
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Definition
| No definite term. Continues until either party terminates |
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Term
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Definition
| tenancy is over and tenant has been requested to leave |
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Term
| Access to Rental Market (common law) |
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Definition
| Landlord could refuse anyone for any or no reason |
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Term
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Definition
Landlord had to serve everyone with no discrimination at all.
modern law is the same but governed by federal, state, and local laws too |
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Term
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Definition
Landlord cannot refuse anyone based on:
race
color
religion
sex
family status (children, pregnant, etc.)
national origin
handicap |
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Term
| Tenant's right to possession (American view) |
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Definition
| Landlord has to deliver legal possession only. New tenant must evict holdover tenant. Minority view. |
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Term
| Tenant's right to possession (English view) |
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Definition
| Landlord's duty to deliver legal AND physical possession. Majority view. TX |
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Term
| Condition of the Premises (common law) |
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Definition
| Lease was a conveyance. Landlord not responsible for the condition but could not misrepresent the condition and had to reveal hidden defects. Tenant had to pay rent even if condition was not as expected and then sue for damages later |
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Term
| Implied Warranty of Habitability |
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Definition
| has to be suited for human living. primarily for residential properties. Modern view. |
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Term
| If government takes landlord's property |
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Definition
| Tenant pays rent to the government if they took the reversion. If government takes all the property, they only have to pay the tenant if the lease is lower than the market value (usually only happens with commercial leases) |
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Term
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Definition
Withhold rent
Repair and deduct
Sue for damages
Treat as constructive eviction and move out |
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Term
| Use of rental property (Lease is silent) |
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Definition
| Lease is silent = any legal use |
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Term
| Use of Rental Property (Lease indicates use) |
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Definition
| Lease indicates use = not a real limitation (unless residential) |
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Term
| Use of Rental Property (lease restricts use) |
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Definition
| Lease restricts use = only the use allowed |
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Term
| Tenant's illegal activities on property |
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Definition
Common law - did not forfeit lease
Modern law - forfeits lease (usually in the lease agreement) |
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Term
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Definition
Tenant can remove and take
as long as does not do substantial damage and repairs or pays for damage |
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Term
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Definition
| Stays with the property, tenant cannot remove |
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Term
| Personal Injury on rental property (common law) |
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Definition
Landlord not responsible unless:
fail to disclose known latent defects
Leased for admission of public
Short-term lease of furnished dwellings
Breach of express covenant to repair
Negligence in making repairs
Injury in common area under landlord's control
Breach of statutory duty to repair |
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Term
| Personal Injuries on rental property (modern law) |
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Definition
| Governed by tort law. Reasonable care and foreseeability. |
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Term
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Definition
Terminate lease
Sue for damages
Evict
Keep all or part of security deposit
Heavily regulated
Landlord can't cut off utilities if she isn't paying them
Can't change the locks (forcible detainer) |
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Term
| Statute of Forcible Entry |
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Definition
| 1381. self-help eviction was allowed but not forcible entry and it had to be peaceful. BEFORE this landlord could use force as long as there was no serious injury or death |
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Term
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Definition
| can sell all the tenant's stuff on the property to pay unpaid rent. highly regulated |
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Term
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Definition
| Landlord "gets even" with tenant who asserts her rights. Prohibited in TX. helps tenant's cause if they are paying rent and not committing waste |
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Term
| Landlord Transferring Property |
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Definition
| Can transfer reversion. tenant usually does not have to consent. |
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Term
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Definition
| Landlord had to get tenant's permission before transferring reversion. Abolished in 1705 |
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Term
| Tenant Transferring interest |
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Definition
Restricted by lease.
Assignments.
Subleases.
NOT TX. |
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Term
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Definition
Assignee is the new tenant
but original tenant is still liable to the landlord (unless assignee signs new lease) |
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Term
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Definition
Subtenant owes duties to tenant not landlord and landlord owes duties to tenant not subtenant.
modern trend to treat like assignment |
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Term
| Implied Easement (generally) |
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Definition
implied from circumstances (not in the deed)
must have a severance of commonly owned parcels:
deed conveys some but not all of grantor's land
OR
deed conveys grantor's land to different grantees
NOT allowed over stranger's land |
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Term
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Definition
| grantor conveys grantee a piece of land surrounded by grantor's land. includes utilities too. only exists while necessity exists |
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Term
| Implied Easement by Prior Use |
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Definition
use must exist prior to the severance of the land AND satisfy court that it's just to enforce the easement
Factors considered:
obvious evidence of an easement
permanent or continuous
necessary and beneficial
price paid
reciprocal benefits
exact language of the deed |
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Term
| Express Easements (creation methods) |
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Definition
1. Grant (from servient tenant to dominant tenant )
2. Reservation to Grantor (coveys land and keeps easement in the deed)
3. Exception to Grantor (conveys land except easement, did not work at common law)
4. Reservation to 3rd party (NOT in TX, instead grantor reserves to himself and then grants to the 3rd party) |
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Term
| Prescriptive Easements (elements) |
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Definition
1. Open and notorious
2. Adverse to Owner's Claim
3. Exclusive (majority NO)
4. Uninterrupted Use
5. Continuous (specified by statute) |
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Term
| Prescriptive Easements (generally) |
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Definition
Like adverse possession
Land need not be in common ownership
Use not required before severance
Only affirmative prescriptive easements are allowed |
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Term
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Definition
| Dominant and servient tenements reunited owned by same person |
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Term
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Definition
| Dominant tenant conveys easement back to servient tenant |
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Term
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Definition
| Oral release by dominant tenant followed by servient tenant's detrimental reliance (like building something over the easement) |
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Term
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Definition
| Dominant tenant abuses the easement and injunction remedy ineffective |
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Term
| Real Covenants (generally) |
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Definition
Promise which is enforceable not only between the original parties, but also between successors of either party because they are not the new owners of the land.
Future owners bound even thought they didn't agree |
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Term
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Definition
1. Enforceable under K law
2. Intent for Promise to "run with the land"
3. "Touch and concern" land (burden touches land and benefit touches land)
4. Privity of Estate (mutual privity- original parties had mutual interest in same land, like landlord tenant. modern law not required)
(horizontal privity- land-based relationship between original parties. modern law often not required)
(vertical privity- new owner must obtain property from the prior owner that was burdened or benefited) |
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Term
| Real Covenants (TX elements) |
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Definition
1. Enforceable K
2. Intent to run with the land
3. Proof of intent (relate to something in existence at time of covenant or use "assigns" language)
4. Mutual privity or horizontal privity
5. Promise must touch and concern land |
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Term
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Definition
| a covenant enforced as "running with the land" by a court of equity even though it does not meet all the requirements of a real covenant |
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Term
| Equitable Servitude Elements (TX) |
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Definition
1. Successor to burdened land took with NOTICE of the restriction
2. Covenant LIMITS use of burdened land
3. Covenant BENEFITS land of party seeking enforcement |
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Term
| Implied Reciprocal Equitable Servitude (Elements) |
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Definition
1. Lots in residential subdivision originally owned by common owner/developer
2. Owner/developer imposed restrictions on deeds of most conveyed parcels
3. Developer imposes general plan upon subdivision (uniform restrictions on most deeds, recorded declaration, etc.) |
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Term
| Construction of Covenants (traditional approach) |
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Definition
| strict construction (exactly as written) |
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Term
| Construction of Covenants (modern approach) |
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Definition
| broad approach (includes similar unstated limits consistent with purpose) |
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Term
| Termination of Covenants (reasons) |
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Definition
1. Express time stated in covenant
2. Statutory duration
3. Release
4. Merger
5. Estoppel, prescription, laches, etc.
6. Unclean hands
7. Acquiescence
8. Changed conditions |
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Term
| Risk of Loss when buying/selling real property (prior to K) |
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Definition
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Term
| Risk of Loss when buying/selling real property (after closing) |
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Definition
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Term
| Risk of Loss Allocation (if K silent) |
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Definition
Majority (English) - purchaser has risk of loss b/c of equitable conversion
Minority (Massachusetts Rule) - seller has risk of loss because of implied condition that premises will be transferred as they existed on date of K |
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Term
| Uniform Vendor and Purchaser Risk Act |
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Definition
| Seller has risk of loss unless purchaser has taken possession |
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Term
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Definition
| way to transfer real property when grantor is alive |
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Term
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Definition
1. In writing
2. Signed by the grantor
3. Delivered to the grantee
a. by grantor
b. by grantor's agent |
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Term
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Definition
| Grantor personally makes the "standard" warranties regarding the title being transferred |
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Term
| Special or Limited Warranty Deed |
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Definition
| Grantor personally makes some, but not all, the "standard" warranties |
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Term
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Definition
| Grantor conveys what the grantor has but does not warrant that the grantor has anything. It's a release |
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Term
| Elements of a Typical Deed |
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Definition
1. Premises
designation of parties
words of grant
description of land
estate granted
consideration paid
2. Habendum
statement of limitations if estate not fee simple
3. Reddendum
portions of estate the grantor is retaining
4. Warranties of Title
5. Signatures
6. Acknowledgement
7. Unique document identifier number |
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Term
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Definition
1. Seal (locus sigulai, modern not required)
2. Signatures (grantor only)
3. Witnesses (not TX)
4. Acknowledgement/Notarization (required to file in TX)
5. Delivery to Grantee
6. Acceptance by Grantee |
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Term
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Definition
| seller provides the agent clear title, buyer provides money to agent (a neutral 3rd party) |
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Term
| Metes and Bounds (survey method) |
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Definition
| describe the perimeter of the land starting from a certain point ("monument"). monument has to be permanent. the description has to close where it started (closure). |
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Term
| Rectangular Survey System (Government System) |
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Definition
| land is divided into 36 sq. mile pieces called townships. Townships are divided into sections |
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Term
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Definition
| everything is referred to by lot number and separated into subdivisions |
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Term
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Definition
| Resolve priorities between competitors for the same property |
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Term
| Recording Deed (proper form) |
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Definition
Notice of confidentiality on 1st page (12pt. bold, uppercase)
Notarized
Blank section on bottom of last page |
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Term
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Definition
1. Evil Grantor sell to X and Y
2. Y has priority in a notice state
3. Y then gives or sells to Z who has notice of X's interest
4. Who wins between X and Z?
5. Z
(once Y gets BFP protection can do what wants with the land) |
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Term
| Methods of Title Assurance |
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Definition
1. Personal Covenants for Title (warranty deed)
2. Title Examination
3. Title Insurance
4. Title Registration (NOT TX) (liens are noted on the title)
5. Statutes of Limitations/Adverse Possession |
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Term
| Personal Covenant of Title |
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Definition
Grantor warrants that the title is good.
1. Covenant of Seisin (grantor owns)
2. Covenant of Good Right to Convey (grantor has rights to transfer)
3. Covenant against Encumbrances (has no non-agreed easements, mortgages, liens, etc.)
4. Covenant of Quiet Enjoyment (no one with better title will evict grantee)
5. Covenant of Warranty (grantor will defend quiet title)
6. Covenant of Further Assurance (grantor will reasonably protect or perfect title) |
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Term
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Definition
| Investigate title to rely on more than the grantor |
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Term
| Title Registration (Torrens Registration System) |
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Definition
| Everything written on the title. Originated in Australia. Used optionally in Mass., Chicago, OH, HI, and MN |
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Term
| Title Insurance (generally) |
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Definition
Paid for by seller traditionally.
only a guaranty from date of purchase back in time. |
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Term
| Title Insurances (protections) |
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Definition
Grantor's disability
Marital rights
Forgeries
Errors in recording
Undisclosed heirs & pretermitted children |
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Term
| Title Insurance (not protected) |
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Definition
Specifically mentioned exclusions
Current purchaser who isn't BFP
Defects revealed by inspection
Boundary problems
Current taxes and assessments |
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Term
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Definition
| adverse possessor sells land to someone else, new owner gets to add the time the 1st adverse possessor possessed the property to the statutory period |
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Term
| Adverse Possession (elements) |
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Definition
1. Actual possession for required number of years
2. Open, visible, and notorious
3. Exclusive (tacking allowed)
4. Continuous and peaceable
5. Hostile (no permission from owner and can't adverse possess government land)
6. Under claim of right (like forged deed unaware, not a squatter) (not always required element but helps cause)
7. Cultivation (not always required but helps cause)
8. Pay property taxes (helps cause) |
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Term
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Definition
| from 3 to 25 yrs. depending upon type of deed, recording of deed, use of land, and paying of property taxes |
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