Quiz 49: Real Property

Business

A) Mortgage is a loan with security interest on real property, thus, it would need to meet the requirement of statute of fraud and be signed. The mortgagee is offering the mortgage, so only the mortgagor needs to sign. Hence, this is correct. b) Mortgage is effective against the original mortgagor; it doesn't need to be recorded. Hence, this is incorrect. c) However, mortgage has to be recorded to be effective against a third party, e.g. someone who purchases the property from the original mortgagor. Hence, this is incorrect. d) Delivery must occur for mortgages to be effective. Hence, this is incorrect.

Refer to the case Carnahan v Moriah Property Owners Association to answer question as below: Facts to this case • Plaintiffs owned property that included part of a lake. • Plaintiffs used the lake for play, including motorboats. • Most portion of the lake was also purchased by defendant. • Defendant limited the use of the lake, prohibiting motors on the lake. • Plaintiffs claimed they have a prescriptive easement to use the lake for their activities. Case Issue The issue is whether plaintiff has a prescriptive easement over the lake. If they do, then they will be able to use the lake for their activities. 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 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. Easement by prescription - It is the grant of easement to someone who had used the property in a certain way, in an adverse, continuous, and open manner for a number of years. For example, if G didn't grant easement to the other stores, but the others used the parking lot to enter their stores anyway and continuously for years, then they may be granted easement by prescription. Analysis and Conclusion In order to determine whether the plaintiffs had an easement by prescription, the court should look at whether the use of the lake by plaintiffs was adverse or not : • The court defined adverse use by others as, using a property in an exclusive way without asking permission from anyone. • There was evidence that plaintiff's use of the lake was not adverse. • Such as, neighbor's acknowledgement of the plaintiff's boating on the lake. • The plaintiff's deferring from using their ski boat was not to bother the neighbors. • Also not using the lake when others were fishing. The evidence showed that the plaintiff's use of the lake were not adverse- a requirement to show for easement by prescription. Thus, the plaintiffs don't have an easement by prescription.

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.

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