Deck 49: Real Property

Question 1

To be enforceable against the mortgagor, a mortgage must meet all the following requirements except:
a. Be delivered to the mortgagee
b. Be in writing and signed by the mortgagor
c. Be recorded by the mortgagee
d. Include a description of the debt and land involved

Answer 1

a) Mortgage is a loan with security interest on real property. Delivery must occur for mortgages to be effective. Hence, this is correct.
b) Since, mortgage concerns interest in real property it must satisfy the statute of fraud's by means of writing and signing requirement. Thus, this is correct.
c) However, mortgage doesn't need to be recorded to be effective against the borrower. Hence, the recording requirement is thus an exception.
d) The debt and land involved in description is required as per statute of fraud. Hence, this is a correct statement.

Question 2

Bunn and his wife claimed that they had an easement to enter and use the swimming pool on neighboring land. A contract between the former owners of the Bunns' property and the adjacent apartment complex contained a provision that the use of the apartment complex's swimming pool would be available to the purchaser and his family. No reference to the pool was made in the contract between the former owners and the Bunns, nor was there any reference to it in the deed conveying the property to the Bunns. Decide. [Bunn v Offutt, 222 SE2d 522 (Va)]

Answer 2

Refer to the case Bunn v Offutt to answer question as below:
Facts to this case
•The former owners of a property had a written agreement with the neighbors to allow them to use the neighboring swimming pool.
•Plaintiffs purchased the above property and claimed easement on the pool.
•However, the sales contract of the property to the plaintiffs had no mention of the pool use.
Case Issue
The issue is whether plaintiff acquired the easement from purchasing the property, even though their purchase of the property did not stipulate the transfer of easement.
Relevant Terms, Laws, and Cases
Easement - right of someone to use a property for a certain purpose (such as right of way) owned by a different property owner. For example, G owns a grocery store and the parking lot which is surrounded by other stores; the other stores' owner and customers may have an easement for right of way to enter the stores via the parking lot.
License - in this case dealing with property, an owner's granting of rights to someone else to use their property for a certain purpose. For example, a neighbor may have a pool and give license (allow) to their friends to use the pool. This is different from easement, as easement would not require any permission.
Analysis and Conclusion
The court should hold for the neighbors. The argument is that:
•The former owners only had a license not an easement to the pool.
•License to use a property are not transferrable. Only the owners may grant licenses to others.
•Thus, it wouldn't have mattered if the sales contract to the plaintiffs contained mention of use of the pool.
Therefore, the plaintiffs don't have easement to use the pool. They may try to ask for permission.

Question 3

Ritz owned a building in which there was a duly recorded first mortgage held by Lyn and a recorded second mortgage held by Jay. Ritz sold the building to Nunn. Nunn assumed the Jay mortgage and had no actual knowledge of the Lyn mortgage. Nunn defaulted on the payments to Jay. If both Lyn and Jay foreclosed and the proceeds of the sale were insufficient to pay both Lyn and Jay, then:
a. Jay would be paid after Lyn was fully paid.
b. Jay and Lyn would be paid proportionately.
c. Nunn would be personally liable to Lyn but not to Jay.
d. Nunn would be personally liable to Lyn and Jay.

Answer 3

a) The priority for the proceeds of the sale of foreclosure goes to whoever records the mortgage first. L would receive payment first because she was the first to record the mortgage. Therefore, this statement is correct.
b) The priority for the proceeds of the sale of foreclosure goes to whoever records the mortgage first, not by proportion. Therefore, this statement is incorrect.
c) N is not liable to L because she doesn't hold a mortgage from L. Hence, this statement is incorrect.
d) N is not liable to L because she doesn't hold a mortgage from L. Thus, this statement is incorrect.

Question 4

After executing the various deeds, J. M. Fernandez Jr. placed them in a closet (with other valuable papers) for safekeeping until they could be physically delivered to the various grantees, including Sylvia Sheppard, when she returned to Key West. This closet was in the home that Fernandez shared with Betty DeMerritt. They were not married but lived together the final 15 years of Fernandez's life. Shortly thereafter, Fernandez was debilitated by a stroke and became a total invalid. He never regained his health and died before Sylvia Sheppard could return to Key West to receive physical delivery of the deed personally from him. When Sylvia Sheppard did arrive in Key West, Betty DeMerritt gave her the deed. This took place two or three days after the death of Fernandez. When questioned as to why she turned the deed over to Sylvia, Betty DeMerritt stated, "I knew he wanted me to do it... because he couldn't do it." She was speaking of Fernandez's physical disability. Does Sylvia have title to the property? Was there delivery? [Kerr v Fernandez, 792 So2d 685 (Fla)]

Question 5

Which of the following deeds will give a real property purchaser the greatest protection?
a. Quitclaim
b. Bargain and sale
c. Special warranty
d. General warranty

Question 6

Kenneth Corson, 10, lived with his mother, Lynda Lontz, in an apartment building owned by Bruno and Carolyn Kosinski. While playing with other children who lived in the same building, Corson was drawn to a stairwell that provided access to the building's laundry room and roof. Corson and the other children climbed to the roof and discovered an area where they could jump from the roof of their building to that of the building next door. The children engaged in roof hopping for several days. On the last day, Corson misjudged his jump and fell the three stories to the ground below. Corson and his mother filed suit against the Kosinskis to collect damages for Corson's injuries. What theory might be used to hold the Kosinskis liable? [Corson by Lontz v Kosinski, 801 F Supp 75 (ND Ill)]

Question 7

Determine whether the following would be fixtures or personal property.
a. Refrigerator in a home
b. Refrigerators in an apartment complex with furnished units
c. Refrigerators in a restaurant kitchen
d. Refrigeration/freezer units in a grocery store
e. Mini-refrigerator in a student dorm

Question 8

What is the relationship between trespass and adverse possession?

Question 9

Bradham and other members and trustees of the Mount Olivet Church brought an action to cancel a mortgage on the church property. The mortgage had been executed previously by Davis and other former trustees of the church and given to Robinson as mortgagee. The court found that the church was not indebted to the mortgagee for any amount. Should the mortgage be canceled? [Bradham v Robinson, 73 SE2d 555 (NC)]

Question 10

Miller executed a deed to real estate, naming Zieg as grantee. He placed the deed in an envelope on which was written "To be filed at my death" and put the envelope and deed in a safe deposit box in the National Bank that had been rented in the names of Miller and Zieg. After Miller's death, Zieg removed the deed from the safe deposit box. Moseley, as executor under Miller's will, brought an action against Zieg to declare the deed void. Decide. [Moseley v Zieg, 146 NW2d 72 (Neb)]

Question 11

Henry Lile owned a house. When the land on which it was situated was condemned for a highway, he moved the house to the land of his daughter, Sarah Crick. In the course of construction work, blasting damaged the house. Sarah Crick sued the contractors, Terry Wright, who claimed that Lile should be joined in the action as a plaintiff and that Sarah could not sue by herself because it was Lile's house. Were the defendants correct? [Terry Wright v Crick, 418 SW2d 217 (Ky)]

Question 12

Bradt believed his backyard ran all the way to a fence. Actually, a strip on Bradt's side of the fence belonged to his neighbor Giovannone, but Bradt never intended to take land away from anyone. Bradt later brought an action against Giovannone to determine who owned the strip on Bradt's side of the fence. Who is the owner? Why? [Bradt v Giovannone, 315 NYS2d 96]

Question 13

Robert E. Long owned land in the City of Hampton that he leased to Adams Outdoor Advertising Limited Partnership. Adams had an advertising billboard placed on the property. On October 6, 1993, Long notified Adams that he was terminating the lease. Adams accepted the termination and told Long that it would have the electrical service disconnected and would schedule demolition of the billboard for the first week in November. Long wanted to use the billboard to advertise his own business and filed suit to enjoin Adams from destroying the billboard. Long maintained the billboard was part of the land and belonged to him. Adams asserted that it owned the billboard as a lessee. The trial court found for Long, and Adams appealed. Decide. [Adams Outdoor Adv., Ltd., Part. v Long, 483 SE2d 224 (Va)]

Question 14

Smikahl sold Hansen a tract of land on which were two houses and four trailer lots equipped with concrete patios and necessary connections for utility lines. The tract Hansen purchased was completely surrounded by the land owned by Smikahl and third persons. To get onto the highway, it was necessary to cross the Smikahl tract. Several years after the sale, Smikahl put a barbed wire fence around his land. Hansen sued to prevent obstruction to travel between his land and the highway over the Smikahl land. Smikahl's defense was that no such right of travel had been given to Hansen. Was he correct? [Hansen v Smikahl, 113 NW2d 210 (Neb)]

Question 15

Martin Manufacturing decided to raise additional long-term capital by mortgaging an industrial park it owned. First National Loan Co. agreed to lend Martin $1 million and to take a note and first mortgage on the land and building. The mortgage was duly recorded. Martin sold the property to Marshall, who took the property and assumed the mortgage debt. Does Marshall have any personal liability on the mortgage debt? Is Martin still liable on the mortgage debt? Explain.

Question 16

Which of the following statements is correct with respect to a real estate mortgage?
a. It must be signed only by the mortgagor (borrower).
b. It must be recorded in order to be effective between the mortgagor and the mortgagee.
c. It does not have to be recorded to be effective against third parties without notice if it is a purchase money mortgage.
d. It is effective even if not delivered to the mortgagee.

Question 17

Christine and Steve Mallock buried their son in a burial plot purchased at Southern Memorial Park, Inc. Each year the Mallocks conducted a memorial service for their son at his burial plot. On the seventh anniversary of their son's death, the Mallocks went to their son's grave at 11:00 A.M. for the annual service, which generally took 30 minutes. When they arrived, they discovered that a tent and chairs set up for funeral services on the plot next to their son's grave were actually resting on his gravesite. The Mallocks asked Southern's management if the tent and chairs could be moved until they could conduct their service. The managers refused, and the Mallocks went ahead with their ceremony, cutting it to five minutes, after they moved the chairs and tents by themselves.
Southern's managers called the police and had the Mallocks evicted. Southern claimed the Mallocks had no rights on the property except for the grave and that their deed for the plot did not award an easement for access. Did the Mallocks have the right to access to the gravesite? [Mallock v Southern Memorial Park, Inc., 561 So2d 330 (Fla Ct App)]

Question 18

The federal government was taking property near Roanoke, Virginia, for public purposes. The government proposed to pay the Tobiases for the property because they were the title-holders of record. However, the Johnsons had been using the land and claimed they were the actual title holders. Are the Johnsons entitled to compensation under eminent domain? Why or why not? [ United States v 3 69.31 Acres of Land in Roanoke County, VA, 696 F Supp 185(WD Va))

Question 19

O conveys property to A on December 1, 2006. O conveys the same property to B who does not know about A and who records his deed on December 2, 2006. O then conveys the same property to C. Who has title to the property?