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23 Cards in this Set
- Front
- Back
Elements of a Mortgage
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1: a debt
2: a lien on debtor's land to secure the debt |
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Define: Equitable Mortgage
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Instead of executing a lien, the mortgagor hand the mortgagee the deed itself.
Equitable between the two parties. But only damages if the mortgagee goes and sells the property to a bona fide purchaser. |
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Rule: Transfer of Mortgages
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All parties may transfer. Mortgage follows a properly transferred note.
Can transfer by: 1: endorsement and delivery 2: separate document of assignment |
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Rule: Holder in Due Course
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Takes the note free of any personal defenses that could have raised against the original creditor-motgagee.
Holder in due course may foreclose despite the presence of PERSONAL defenses, but not REAL defenses |
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List: Real Defenses to a mortgage
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1: material alteration
2: duress 3: fraud 4: incapacity 5: illegality 6: infancy 7: insolvency |
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Requirements: Holder in Due Course
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1: note must be NEGOTIABLE
2: ORIGINAL NOTE is endorsed, signed by original mortgagee and delivered. 3: take note in GOOD FAITH--no notice of illegality 4: Pay VALUE for the note. |
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Rule: Liability and "assuming the mortgage"
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Both buyer and seller of the property are personally liable for the mortgage.
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Rule: Liability and taking "subject to the mortgage"
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Only the original mortgager is personally liable.
BUT, the mortgage remains on the land. |
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Rule: Foreclosure and Necessary Parties
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If a necessary party (those with interests subordinate the foreclosing party) is NOT joined, his interest REMAINS on the land.
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Define: Subordination Agreements
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By private agreement, a senior creditor agrees to subordinate its priority to a junior creditor.
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Rule: Equitable Redemption
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At any time prior to foreclosure, debtor has the right to redeeom the land and free it from the mortgage. Must pay off missed payments, plus interest, plus costs.
Acceleration clause may require paying off the full balance of the mortgage to redeem |
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Define: Statutory Redemption
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NOT IN NYS
statutory right to redeem after the foreclosure sale for a fixed period. Mortgagor retains possession during that period. |
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NYS Distinction: Statutory Redemption
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Does Not Exist in NYS
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Rule: groundwater
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may make reasonable use of groundwater.
may NOT waste it. |
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Rule: Riparian Doctrine
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Riparians share a right of reasonable use.
Natural uses prevail over artificial uses. |
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Rule: Prior Appropriation Doctrine
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individual acquire water rights by actual use. Prior appropriation takes precedence.
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Rule: Surface Water Theories
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1: natural flow--can't interfere with natural drainage
2: common enemy--can do anything to get rid of surface water 3: reasonable use--balance utility and harm. |
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Rule: Support of Land
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Strictly Liable if activities cause adjacent land to subside.
Strictly Liable for damage to adjacent buildings, unless the subsidence would not have occured with the land in its natural state--then negligence. |
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Rule: Mining and Support
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And underground occupant must support the surface and buildings present at the date the underground estate was created.
Liable only for negligence for damage to later buildings. |
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Rule: Zoning Variance
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Must Show
1: undue hardship 2: variance won't work a detriment to surrounding property values |
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Rule: Nonconforming Use
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was once lawful.
Cannot be eliminated all at once, or compensation must be paid as a taking. |
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Rule: Exactions and development permitting
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to be constitutional, exactions must be reasonably related in nature and scope to the impact of the proposed developments
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Rule: Mortgage Modification and Priority
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If the landowner enters into a modificatoin agreement witha senior mortgagee, raising it's interest rate or otherwise making the agreement more BURDENSOME, the JUNIOR mortgagee will be given PRIORITY OVER THE MODIFICATION.
Thus if the first mortgage debt is larger because of the modification, the second mortgage gains priority OVER THE INCREASE in the debt. |