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Real Property Review

Terms in this set (162)

The landowner and the co-worker have not entered into any agreement under which the co-worker acquired the right to collect rents and profits upon default. When the mortgagor's (the landowner's) right to receive rents and profits is not expressly included in the mortgage agreement and there are no provisions to the contrary, the mortgagor's right to receive rents and profits until default is implied.

Upon default, the mortgagee (the co-worker) does not automatically succeed to that right. If the mortgage agreement had expressly provided that rents and profits were assigned to the co-worker in the event of default, then the co-worker could notify the tenants and collect rents. However, because the agreement between the landowner and the co-worker is silent as to the co-worker's right to receive rents in the event of default, the co-worker cannot demand rental payments from the tenants.

The facts state that all the tenants in the apartment complex took residence after the landowner and the co-worker entered the mortgage agreement. When the co-worker takes possession of the apartment complex from the landowner, he can evict such tenants, because their possessory rights are inferior to his, but he cannot demand rental payments.

Note, however, that if any tenants had taken up residence prior to the recording of the mortgage, those tenants would be required to pay rent to the co-worker, who could not evict them due to their superior right to possession, but who could collect rents on the leaseholds upon proper notification of the tenants.
The language in the deed conveying the forest property "to my brother, until such time as the land is used for the mining of marble or other stone" created a fee simple subject to an executory interest, where the durational language "until" provided that the present fee simple estate would terminate automatically upon the occurrence of a specified event (the mining of marble or other stone) and title would pass to a third party ("my sister and her heirs"). Executory interests are subject to the Rule Against Perpetuities.

In this case, it was possible that more than 21 years would pass before the interest vested; that is, mining might not occur within 21 years after some life in being at the creation of the interest. Thus, the executory interest in favor of the sister and her heirs violates the Rule Against Perpetuities and is void. With the executory interest stricken from the conveyance, the remaining language creates a fee simple determinable--a present fee simple estate limited by durational language ("until") so that the estate terminates automatically if the property is used for mining. The property reverts back to the grantor or his successor.

In this case, the cousin is the successor and takes the forest property. As to the beach property, the language in the deed conveying it "to my daughter, on condition that the property is not used for commercial purposes" created a fee simple subject to an executory interest, where the conditional language ("on condition that") provided that the present fee simple estate would terminate if the property was used for commercial purposes and title would pass to a third party ("my son and his heirs").

This executory interest, like the one in the forest property conveyance, violates the Rule Against Perpetuities, because it is possible that the beach property could be used for purely non-commercial purposes for more than 21 years after a life in being at the creation of the interest. Voiding the executory interest in the conveyance of the beach property, the remaining language creates a fee simple absolute in the daughter.

The language does not create a fee simple subject to condition subsequent because, while the conveyance contains conditional language ("on condition that"), it does not contain an express statement that the grantor reserves the right of re-entry upon the occurrence of the designated event. A right of re-entry cannot be implied. Thus, the beach property vested in the daughter in fee simple absolute.
The focal points of this question are the homesteader's adverse possession of the land and the legal effect of the document purporting to transfer the homesteader's interests in the corral to the welder. To acquire title to land by adverse possession, the claimant must meet the mental, physical, and time elements.

The physical element requires that the claimant's possession be "actual, open, and notorious," meaning that the true owner, acting reasonably, would become aware of the claim and could bring an action to eject the claimant. The mental element requires that the claimant's possession be "hostile" -- she must assert a claim to the property which is in derogation of the true owner's rights. It is the "hostility" toward the true owner's title that is important. The time element is statutory -- the claimant's qualifying possession must be continuous for the statutory period.

The facts state that the homesteader entered the land and began farming and raising alpacas, constructing a corral of stone in the process, all unknown to the landowner (the holder of title). This appears sufficiently actual, open, and notorious to satisfy the physical element of adverse possession. The homesteader's occupation and use of the land was also hostile -- she behaved as though she were the owner and paid no rent to the landowner -- so she satisfied the mental element. Finally, the homesteader's possession and use of the land from 2045 to 2051 -- at least five years -- satisfied the time element. Thus, when the homesteader gave possession of the land to the welder, she was the holder of title to the land by adverse possession.

To voluntarily transfer title to real property inter vivos, the grantor must deliver a valid deed to the subject property to the grantee, who must accept it. A valid deed must contain the grantor's signature, must evidence a present intent to transfer an interest in land, and must adequately describe the property being transferred. The document by which the homesteader purported to transfer her interest in the corral, alpacas, and sunflower crop to the welder did not meet these requirements because it did not describe the land. Therefore, the land was not conveyed to the welder.

The welder then occupied the land for less than five years from when the landowner executed his deed in favor of the pharmacist, so there is no possibility of his having acquired the land through adverse possession. Because the landowner had already lost his interest to the homesteader (and therefore could not have conveyed it to the pharmacist), and the welder obtained no ownership rights from the homesteader, title to the land remained with the homesteader.
Whether a chattel annexed to leased premises becomes a "fixture," and thus a part of the real property which the tenant may not remove, is determined by the intentions of the parties as revealed by the circumstances.

In practical effect, the intentions of the parties are found by application of the following four factors: (1) Are the chattels firmly embedded or connected to the soil or some pre-existing structure? (2) Are the chattels peculiarly adapted or fitted to the particular premises? (3) Would removal of the chattels largely destroy the chattels or damage the premises? (4) Did the person who annexed the chattels have a substantial and permanent interest in the land (e.g., owner of fee simple interest)? To the extent that each question is answered yes, the disputed chattels are fixtures.

Here, the fact that the firefighter's equipment was installed by someone who owned a fee simple interest in the real property makes the firefighter less likely to be able to remove the equipment than the receptionist. Factor (4) assumes great importance when the owner is the person who attaches the chattels--there is much less support for the argument that the person who annexed the chattels intended that they would someday be removed.

By law, a mortgagee has a lien on any fixtures attached to the real property that is subject to the mortgage. There need be no express mention of such an interest in the mortgage instrument itself. The critical issue is whether or not a particular attached chattel is a fixture, which is controlled by the intentions of the parties.