Real Property

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apgiering
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Real Property
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2012-07-07 09:17:09
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  1. What are the present estates?
    • Fee Simple Absolute
    • Fe Tail
    • Fee Simple Determinable
    • Fee Simple Subject to Condition Subsequent
    • Fee Simple Subject to Executory Limitation
    • Life Estate
  2. What are the defeasible fees?
    • Fee Simple Determinable
    • Fee Simple Subject to Condition Subsequent
    • Fee Simple Subject to Executory Limitation
  3. Fee Simple Absolute
    Absolute ownership of potentially infinite duration that is freely devisable, descendible, and alienable.
  4. Fee Tail
    Passes directly to grantee's lineal blood descendants no matter what.

    "To A and the heirs of his body."

    Today creation results in a fee simple absolute.
  5. What language is required to create a defeasible fee?
    Clear language.  Words of mere desire, hope, or intention are insufficient to create a defeasible fee.
  6. When are defeasible fees void?
    When they create an absolute restraint on alienation.
  7. Fee Simple Determinable
    Grantor uses clear durational language where if the stated condition is violated, forfeiture to grantor is automatic.

    • "To A for so long as"
    • "To A during"
    • "To A until"

    Estate is devisable, descendible, and alienable but always subject to the condition.

    Accompanied by the possibility of reverter.
  8. What defeasible fee is always accompanied by the possibility of reverter?
    Fee simple determinable.
  9. Fee Simple Subject to Condition Subsequent
    Grantor uses clear durational lnguage and carves out the right to reenter.

    "To A, but if X event occurs, grantor reserves the right to re-enter and retake."

    Right to re-enter -- not automatic, at prerogative of the grantor.
  10. Fee Simple Subject to Executory Limitation
    Just like a fee simple determinable except that if the condition occurs the estate is automatically forfeited in favor of someone other than the grantor.

    "To A, but if X event occurs, then to B."

    Shifting executory interest.
  11. Life estate
    An estate that must be measured in explicit life time terms, and never in terms of years.

    "To A for life."

    Reversion or remainder
  12. Life estate pur autre vie
    A life estate measured by a life other than the grantee's.
  13. Waste
    The life tenant is entitled to all ordinary uses and profits from the land.

    But the life tennat cannot commit waste.
  14. Voluntary or affirmative waste
    Overt conduct that causes a drop in value.
  15. Voluntary or affirmative waste -- natural resources
    The life tenant must not consume or exploit natural resources on the property unless one of four exceptions applies.

    • 1) Prior Use
    • 2) Reasonable Repairs
    • 3) Grant
    • 4) Exploitation
  16. Prior Use
    Prior to the grant, the land was used for exploitation.

    Exception to the rule that the life tenant must not consume or exploit natural resources on the property (voluntary or affirmative waste).

    Open Mines Doctrine -- If mining was done on the land before the life estate began, the life tennat may continue to mine, but is limited to the mines already open.
  17. Open Mines Doctrine
    If mining was done on the land before the life estate began, the life tenant may continue to mine, but is limited to the mines already open.

    This is a subset of the prior use exception to the rule against voluntary or affirmative waste.
  18. Reasonable repairs (waste)
    The life tenant may consume natural resources for repairs and maintenance.

    Exception to the rule that the life tenant must not consume or exploit natural resources on the property (voluntary or affirmative waste).
  19. Grant (waste)
    The life tenant was granted the right to consume or exploit natural resources on the property.

    Excreption to the rule that the life tenant must not consume or exploit natural resources on the property (voluntary or afirmative waste)
  20. Permissive waste or neglect
    The land is allowed to fall into disrepair.

    • The life tenant must
    • 1) Maintain the premises in reasonably good repair
    • 2) Pay all ordinary taxes to the extent of income or profits, or the fair rental value
  21. Ameliorative waste
    The life tenant must not engage in interests that will enhance the property's value unless all future interest holders are known and consent.
  22. What are some future interests?
    • Possibility of Reverter
    • Right of Reentry
    • Reversion
    • Remainder
    • Executory interest
  23. Possibility of Reverter
    Accompanies a fee simple determinable.
  24. Right of Reentry
    Accompanies the fee simple on condition subsequent.

    "To A, but if X event occurs, grantor reserves the right to re-enter and retake."

    Not automatic, at prerogative of the grantor.
  25. Reversion
    A future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent.
  26. Remainder
    A future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.

    Remainder NEVER follows a defeasible fee.
  27. Vested remainder
    Both created in an ascertained person and is not subject to any condition precedent.
  28. Indefeasibly vested remainder
    The holder of this remainder is certain to acquire an estate in the future, with no conditions attached.
  29. Vested remainder subject to complete defeasance
    Remainderman's taking is not subject to any condition precedent; however, his right to possession could be cut short because of a condition subsequent.
  30. How can you tell that there is a condition subsequent?
    You can tell because the conditional language is separated by commas and follows the grant.
  31. Vested remainder subject to open
    A remainder is vested in a group of takers, at least one of whom is qualified to take.  But additional takers can still join as class members.

    • --A class is open if it's possible for others to enter
    • --A class is closed when its maxmum membership has been set
    • --Rule of Convenience: the class closes whenever any member can demand possession (exception: a child in the womb will share with his siblings)
  32. When is a class open (vested remainder subject to open)
    When it is possible for others to enter.
  33. When is a class closed (vested remainder subject to open)?
    Its maximum membership has been set.
  34. Rule of Convenience
    The class closes whenever any member can demand possession.

    EXCEPTION: A child in the womb will share with his siblings.
  35. Contingent Remainder
    Created in an unascertained person or is subject to a condition precedent, or both.
  36. How can you tell that there is a condition precedent?
    You can tell because the conditional language appears before the language creating the remainder or is woven into the grant to the remainderman.
  37. Rule of Destructibility of Contingent Remainders
    At common law, a contingent remainder was destroyed if it was still contigent at the time the preceeding estate ended.
  38. The Rule in Shelley's Case
    At common law, the rule would apply where an interest was conveyed to A as a life estate, and then to A's heirs.  The present and future interests would merge giving A a fee simple absolute.

    Virtually abolished.
  39. The Doctrine of Worthier Title
    Grantor tries to convey a future interest to his own heirs.  Instead the conveyance to the heirs is void and he has a reversion in fee simple absolute.

    Rule of Construction -- the grantor's intent controls.
  40. Rule of Construction
    The grantor's intent controls.
  41. Executory interest
    Cuts short some interest in another person or the grantor.

    Shifting executory interest - Always follows a defeasible fee and cuts short someone other than the grantor

    Springing executory interest - Cuts short the grantor.
  42. Shifting executory interest
    Always follows a defeasible fee and cuts short someone other than the grantor.
  43. Springing executory interest
    Cuts short the grantor.
  44. The Rule Against Perpetuities
    Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.

    A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.

    Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.

    The charity-to-charity exception -- A gift from one charity to another does not violate the RAP.

    Wait and see -- the validity of any suspect future interest is determined on the basis of the facts as they now exist, the conclusion of the measuring life.

    USRAP - Provides for an alternative 90-year vesting period.

    Cy pres - As near as possible.
  45. Does a gift to an open class that is conditioned on the members surviving to an age beyond 21 violate the common law RAP?
    Yes.
  46. Do shifting executory interests violate the RAP?
    Many do.  Any executory interest with no limnit on the time within which it must vest violates the RAP.
  47. Charity-to-charity exception (RAP)
    A gift from one charity to another does not violate the RAP.
  48. Wait and see doctrine
    The validity of any suspect future interest is determined on the basis of the facts as they now exist, the conclusion fo the measuring life.
  49. USRAP
    Provides for an alternative 90-year vesting period.
  50. Cy pres
    As near as possible (to the grantor's intent)
  51. Concurrent estates (rights and responsibilities)
    • Each co-tenant is responsible for his or her fair share of carrying costs
    • Has to share rent from third parties
    • Absent ouster does nto ahve to pay co-tenant's rent
    • A right to contribution for reasonable and necessary repairs provided that he told the others of the need
    • No requirement to improve and no right to contribution for an "improvement" (however, at partition, the improving co-tenant is entitled to a credit equal to any INCREASE in value caused by his efforts, and at partition the so-called "improver" bears full liabiltiy for any DROP in value cause by his efforts)
  52. Joint tenancy
    Two mor more own with the right of survivorship.
  53. Right of survivorship (joint tenancy)
    When one joint tenant dies his share goes automatically to the surviving joint tenants.
  54. Is a joint tenancy alienable?
    Yes, you can transfer or sell during life.  It is not devisable or descendable.
  55. Is a joint tenancy devisable or decendable?
    No.  It is only alienable (you can transfer or sell during life).
  56. What are the four unities of a joint tenancy?
    • Time
    • Title
    • Identical interest
    • Possess the whole
  57. What creates a joint tenancy?
    The grantor must clearly express the right of survivorship.
  58. How can you sever a joint tenancy?
    • Sale
    • Partition, and
    • Mortgage
  59. How can you sever a joint tenancy by partition?
    • Voluntary agreement - a peaceful way to end the relationship
    • Partition in kind - a court action for physical division of Blackacre. Awarded if in the best interests of all.
    • Forced sale - A court action if in the best interests of all. Blackacre is sold and sale proceeds are divided proportionally
  60. Partition in kind (joint tenancy)
    A court action for the physical division of Blackacre.  Awarded if in the best interests of all.
  61. Forced sale (joint tenancy)
    A court action if in the best interests of all. Blackacre is sold and sale proceeds are divided proportionately.
  62. How can you sever a joint tenancy by mortgage?
    • Lien Theory (majority theory) - A joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy.
    • Title Theory (minority theory) - One joint tenant's execution of a mortgage or a lien on his share will sever the joint tenancy as to that now encumbered share
  63. Tenancy by the entirety
    A protected marital interest between married persons with the right of survivorship.

    In those states to recognize the tenancy by the entirety, it arises presumptively in any conveyance to married partners unless clearly stated otherwise.

    Creditors of only one spouse can't touch this tenancy.

    Unilateral conveyance - neither tenant, acting alone, can defeat the right of survivorship by unilaterally conveying
  64. How does a tenancy by the entirety arise?
    In those states to recognize it, it arises presumptively in any conveyance to married partners unless clearly stated otherwise.
  65. Can creditors of only one spouse touch at enancy by the entirety?
    No.
  66. Can either tenant in a tenancy by the entirety defeat the right of survivorship by unilaterally conveying the tenancy?
    No.
  67. Tenancy in common
    • 2 or more own with no right of survivorship.
    • Each co-tenant owns an individual part and each has a right to possess the whole
    • Each interest is descendible, devisable and alienable
  68. Is a tenancy in common descendible, devisable and alienable?
    Yes.

    NOTE: A joint tenancy is alienable, but not descendible or devisable.
  69. Bruce Willis rule of property
    A living person has no heirs.
  70. Can a living person have an heir?
    No.
  71. Tenancy for years
    • A lease for a fixed period of time
    • Because it is for a fixed period of time, there is no notice needed to terminate
    • A term of years greater than one year must be in writing to be enforceable because of the Statute of Frauds
  72. Periodic tenancy
    Lease which continues for successive intervals until landlord or tenant give proper notice of termination.
  73. How do you create a periodic tenancy by implication?
    • Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals
    • An oral term of years in violation of the Statute of Frauds creates an  implied periodic tenancy measured by the way rent is tendered
    • Holdover- in a residential lease, if the L elects to hold over a T who has  wrongfully stayed on past the conclusion of the original lease, this  creates an implied periodic tenancy measured by the way rent is now tendered
  74. Which tenancy is created when land is leased with no mention of duration, but provision is made for the payment of rent at set intervals?
    Periodic tenancy.
  75. What happens when there is an oral term of years in violation of the Statute of Frauds?
    An implied periodic tenancy is created, measured by the way rent is tendered.
  76. How do you terminate a periodic tenancy?
    • Notice equal to the period of the periodic tenancy must be given in writing, unless the period is greater than a year in which case only six months notice is given
    • The periodic tenancy must end at the conclusion of a natural lease period
  77. Tenancy at Will
    No fixed duration.

    Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy.
  78. Tenancy at Sufferance
    Created when T has wrongfully held over past the expiration of the lease.
  79. Tenant's duties (landlord-tenant law)
    • When the lease is silent, T must maintain the premises and make ordinary repairs
    • T must not commit waste
    • Fixtures stay with the land
  80. Who is responsible for injuries sustained by third parties that the tenant invited (landlord-tenant law)?
    The tenant is liable for such injuries, even if the landlord promises to make all repairs.

    The tenant is responsible for keeping the premises in reasonably good repair.
  81. What losses is the tenant liable for if he covenants to maintain the property in good condition?
    • Under common law, historically, T was liable for any loss to the property including loss due to a force of nature.
    • Today, T may end the lease when the premises are destroyed without T's fault
  82. Fixture (landlord-tenant law)
    A fixture is a once movable chattel that, by virtue of its annexation to realty objectively shows the intent to permanently improve the realty.
  83. How do you determine that an installation is a fixture (landlord-tenant law)
    • Express agreement controls
    • Removal would cause substantial harm to the premises and in objective judgment T has shown the intent to install a fixture
  84. What are the landlord's options if the tenant fails to pay rent and remains in possession?
    • Landlord can evict through the court, or
    • Continue the relationship and sue for rent
    • Landlord may not engage in self help!
  85. What are the landlord's options if the tenant breaches the duty to pay rent and is out of possession?
    • Ignore and hold tenant responsible for unpaid rent as if he were still there (minority!)
    • Re-let the premises on the wrongdoer tenant's behalf, and hold him or her liable for any deficiencyt (majority rule, mitigation)
    • SURRENDER: Tenant shows by words or actions that she wants to give up
    • the lease (must be in writing if remaining term is over 1 year)
  86. Surrender (landlord-tenant law)
    Tenant shows by words or actions that she wants to give up the lease (must be in writing if remaining term is over 1 year)
  87. What are the landlord's duties to the tenant?
    • Duty to deliver possession
    • Duty to control common areas
    • Duty not to permit a nuisance on the premises
    • Duty not to breach by wrongful eviction
    • Duty not to constructively evict tenant
    • Implied warranty of habitability
    • Implied covenant of quiet enjoyment
  88. Duty to deliver possession (landlord-tenant law)?
    • English rule - L must put T in actual possession of the premises
    • American Rule - does not require L to provide T with actual physical possession, just legal possession
  89. Implied covenant of quiet enjoyment (landlord-tenant law)
    T has a right to quiet use and enjoyment of the premises without interference from L
  90. Breach by Wrongful Eviction (landlord-tenant law)
    L wrongfully evicts T or excludes T from the premises
  91. Constructive Eviction (landlord-tenant law)
    • Substantial Interference - due to L's actions or failure to act
    • Notice - notify L of the problem and L fails to act meaningfully
    • Goodbye - T must vacate within a reasonable time after L fails to fix the problem
  92. When is the landlord liable for the acts of other tenants?
    • L must not permit a nuisance on the premises
    • L must control common areas
  93. Implied warranty of habitability (landlord-tenant law)
    The premises must be fit for basic human dwelling.

    Applies only to residential leases.

    Is non-waivable.

    • Tenant may:
    • 1) Move out
    • 2) Repair and deduct
    • 3) Reduce rent (should put rent in escrow to show good faith)
    • 4) Remain, pay rent and seek money damages
  94. Does the implied warranty of habitability apply to commercial leases?
    No, only residential leases.
  95. Can a tenant waive the implied warranty of habitability?
    No.
  96. What are a tenant's options if the landlord violates the implied warranty of habitability (i.e., not fit for basic human dwelling)?
    • Move out
    • Repair and deduct
    • Reduce rent (should put rent in escrow to show good faith)
    • Remain, pay rent and seek money damages
  97. Retaliatory eviction (landlord-tenant law)
    If T lawfully reports L for housing code violations, L is barred from penalizing T.
  98. Assignments v. Sub-Leases (landlord-tenant law)
    • Assignment - you give someone your entire remaining term (asignee is in privity of estate with landlord)
    • Sublease - you provide only part of your remaining term (subleasee is neither in privity of estate nor contract with landlord)
  99. What are the exceptions to the general rule that the landlord is under no duty to make the premises safe (caveat leasee)?
    • Common areas - L must maintain all common areas
    • Latent defects rule - L must warn T of hidden defects that L knows about or should know about
    • Assumption of Repairs - A landlord who voluntarily makes repairs must complete them with reasonable care
    • Public Use Rule - L who leases public space and who should know, because of the nature of the defect and the length of the lease that T will not repair is liable for any defects on the premises
    • Short term lease of furnished dwelling - L is liable for any defect which harms T
  100. Caveat leasee
    Renter beware.  General rule that the landlord is under no duty to make the premises safe.  Several exceptions.
  101. What are the types of servitudes?
    • Easements
    • The license
    • The profit
    • The covenant
    • Equitable servitude
  102. Easement
    The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land called the servient tenement.

    • Affirmative easement/
    • Negative easement
    • Easement appurtenant/
    • Easement in gross
  103. Affirmative easement
    The right to do something on servient land.

    • Can be created by
    • 1) Perscription
    • 2) Implication
    • 3) Necessity
    • 4) Grant
  104. Affirmative easement by perscription
    An easement may be acquired by satisfying the elements of adverse possession.

    • Continous use for the statutory period
    • Open and notorious
    • Actual use
    • Hostile use - without consent
  105. Affirmative easement by implication
    The easement is implied from existing use.

    • 1) The previous use was apparent, AND
    • 2) The parties expected that the use would survive division because it is reasonably necessary to the dominant land's use and enjoyment.
  106. Affirmative easement by necessity
    An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over part of grantor's remaining land (e.g., "landlocked" property)
  107. Affirmative easement by grant
    An easement to endure for more than one year must be in writing that complies with the formal elements of a deed.
  108. Negative easement
    The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.

    • Light
    • Air
    • Support
    • Stremwater from an artificial flow
    • Scenic view - minority view

    NOTE: Negative easements can only be created expressly, by writing signed by the grantor.  There is no natural or automatic right to a negative easement.
  109. What are the five types of negative easements?
    • Light
    • Air
    • Support
    • Streamwater from an artificial flow
    • Scenic view - minority view
  110. Easement appurtenant
    It benefits the holder in his physical use or enjoyment of the property.

    • Dominant tenement - derives benefit of the easement
    • Servient tenement - bears burden of the easement

    The appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.

    EXCEPTION: the purchaser of the servient land is a bona fide purchaser without notice
  111. Does the appurtenant easement pass automatically with the dominant tenement?
    Yes, regardless of whether it is even mentioned in the conveyance.

    EXCEPTION: The purchaser of the servient land is a bona fide purchaser without notice.
  112. Easement in gross
    Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.

    NOT transferable unless it is for commercial purposes.
  113. Is an easement in gross transferable?
    No, unless it is for commercial purposes.
  114. How do you determine the scope of an easement?
    Determined by the terms of the grant or the conditions that created it.
  115. How can you terminate an easement?
    • Estoppel - the servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced
    • Necessity - easements created by necessity expire as soon as the need ends.  However, if the easement, attributable to necessity, was nonetheless created by express grant it does not end automatically when the necessity ends
    • Destruction of the servient land, other than through the willful conduct of the servient owner, will end the easement
    • Condemnation of the servient estate by eminent domain will end the easement
    • Release - A written release, given by the easement holder to the servient owner
    • Abandonment - The easement holder must demonstrate by physical action the intent to never use the easement again -- mere nonuse is not enough
    • Merger doctrine - The easement is extinguished when title to the easement and title to servient land become vested in the same person
    • Perscription - The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (continuous use, open and notorious, actual use, hostile to the easement holder)
  116. The license (servitudes)
    A mere privilege to enter another's land for some delineated purpose.

    • Not subject to the Statute of Frauds
    • Are freely revocable
    • An oral easement creates a freely revocable license
    • Estoppel bars revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the licensee's continuation
  117. Can estoppel bar revocation of a license?
    Only when the licensee has invested substantial money or labor or both in reasonable reliance on the licensee's continuation.
  118. Can an oral easement create a freely revocable license?
    Yes.

    (An easement to endure for more than one year must be in writing that complies with the formal elements of a deed.)
  119. The profit (servitudes)
    Entitles its holder to enter the servient land and take from it the soil or some substance of the soil such as minerals, timber, oil, etc.

    Shares all the rules of easements
  120. Are there different rules for easements and profits?
    No, the profit shares all the rules of easements.

    (Licenses, however, are freely revocable and not subject to the Statute of Frauds)
  121. The covenant (servitudes)
    A promise to do or not do something related to land.  A contractual limitation or promise regarding the land.

    • Restrictive Covenant - A promise to refrain from doing something related to land.
    • Affirmative Covenant - A promise to do something related to land.
  122. Restrictive Covenant
    A promise to refrain from doing something related to land.
  123. Affirmative Covenant
    A promise to do something related to land.
  124. What is the test for determining whether the burdens of a covenant run with the land?
    • Writing - the original promise was in writing
    • Intent - the original parties intended that the covenant would run
    • Touch and concern - the promise must affect the parties' legal relations as land owners, and not simply as members of the community at large
    • Horizontal and vertical privity
    • Notice
  125. What is the test for determining whether the benefits of a covenant run with the land?
    • Writing - the original promise was in writing
    • Intent - the original parties intended that the benefit would run
    • Touch and concern - the promise effects the parties as landowners
    • Vertical privity - non-hostile nexus between B and B1
  126. Horizontal privity (covenant)
    Horizontal privity refers to the nexus between the original parties (A and B) and requires that they be in succession of estate (meaning grantor/grantee, landlord/tenant, or mortgagor/mmortgagee)

    NOTE: Horizontal privity is hard to establish.
  127. Vertical privity (covenant)
    Refers to the nexus between A & A-1.  It requires some non-hostile nexus.
  128. Which is harder to establish, horizontal or vertical privity?
    Horizontal privity.  This is why the benefits of a covenant are more likely to run than the burdens of a covenant.  (Also, in order for the burdens to run there must be notice)
  129. What does it mean for a covenant to "touch and concern" the land?
    The promise must affect the parties' legal relations as land owners, and not simply as members of the community at large.
  130. Equitable servitude
    A promise that equity will enforce against successors, accompanied by injunctive relief.

    • Writing - generally but not always the original promise was in writing
    • Intent - parties intended the promise would bind successors
    • Touch and Concern - promise effects parties as andowners
    • Notice - successors of the burdened land had notice of the promise
  131. Implied equitable servitude
    The general or common scheme doctrine.

    When the sales began, the subdivider had a general scheme of residential development which included the defendant's lot.

    • The defendant lot holder had notice of the promise contained in the prior deeds.
    • --Actual notice: defendant had literal knowledge of the promises
    • --Inquiry notice: the neighborhood conforms to the common restriction
    • --Record notice: the form of notice sometimes imputed to buyers on the basis of the publically recorded documents (courts split on this last point)
  132. Actual notice (implied equitable servitude/general or common scheme doctrine)
    Defendant had literal knowledge of the promises contained in the prior deeds.
  133. Inquiry notice (implied equitable servitude/general or common scheme doctrine)
    The neighborhood conforms to the common restriction.
  134. Record notice (implied equitable servitude/general or common scheme doctrine)
    The form of notice sometimes imputed to buyers on the basis of the publically recorded documents (courts split on this last point)
  135. What is the defense to an implied equitable servitude?
    Changed conditions

    Must be so pervasive that the entire area has changed
  136. Adverse Possession
    Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title.

    • Elements:
    • Adverse
    • Hostile
    • Open and notorious
    • Exclusive
    • Continuous for the statutory period
  137. Tacking (adverse possession)
    One adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity, which is satisfied by any non-hostile nexus, such as blood, contract, deed, will.
  138. Will the statute of limitations run against a true owner who is afflicted by a disability at the start of adverse possession?
    No.
  139. What is required of a contract to convey land?
    The contract must be in writing signed by the party to be bound.  It must describe Blackacre and it must state some consideration.

    • EXCEPTION: The Doctrine of Part Performance (2 out of 3)
    • 1) The buyer takes possession
    • 2) The buyer pays all or part of the purchase price, and/or
    • 3) The buyer makes substantial improvements
  140. The Doctrine of Part Performance
    Exception to the requirement that a contract to convey land must be in a writing signed by the party to be bound, must describe Blackacre and must state some consideration.

    • Need 2 out of 3:
    • 1) The buyer takes possession
    • 2) The buyer pays all or part of the purchase price, and/or
    • 3) The buyer makes substantial improvements
  141. Equitable conversion (land conveyancing)
    Equity regards as done that which ought to be done.  Therefore, once the contract is signed, the buyer bears risk of loss.
  142. What are the implied promises in every land contract?
    Seller promises to provide marketable title at the closing: title free from reasonable doubt, free from lawsuits and the threat of litigation.

    • Title is unmarketable if:
    • 1) Adverse possession - if part of the title rests on adverse possession, it is unmarketable
    • 2) Encumbrances - marketable title means an unencumbered fee simple
    • 3) Zoning violations - title is unmarketable if the property violates a zoning ordinance

    Seller promises not to make any false statements of material fact (majority hold seller liable for failing to disclose latent material defects)

    NO implied warranties of fitness or habitability
  143. What makes title unmarketable (land conveyancing)?
    • Adverse possession - if part of the title rests on adverse possession, it is unmarketable
    • Encumbrances - marketable title means an unencumbered fee simple
    • Zoning violations - title is unmarketable if the property violates a zoning ordinance
  144. Are there implied warranties of fitness or habitability that run from buyer to seller in a land contract?
    No.  Only an implied promise to provide marketable title and an implied promise not to make any false statements of material fact.
  145. How does a seller pass legal title from seller to buyer (land conveyancing)?
    The deed.  Must be:

    • 1) Lawfully executed - the deed must be in writing signed by the grantor.
    • 2) Delivered - grantort physically or manually transfers the deed to the grantee.

    A legal standard, and is a test solely of whether the grantor had the present intent to be immediately bound irrespective of whether or not the deed was handed over.
  146. What are the requirements for a deed in order to pass legal title from seller to buyer (land conveyancing)?
    • Lawfully executed -- in writing signed by the grantor); AND
    • Delivered (did grantor have the present intent to be immediately bound?)
  147. Quitclaim deed (land conveyancing)
    Contains no covenants,  Grantor isn't even promising that he has title to convey.

    NOTE: Even with the quitclaim, Grantor implicitly promised in the land contract to provide marketable title at closing.  Any problems post-closing, and seller is off the hook.
  148. General warranty deed (land conveyancing)
    Warrants against all defects in title, including those due to grantor's predecessors.

    • Present Covenants
    • -Covenant of Seisin
    • -Covenant of the right to convey
    • -Covenant against encumbrances

    • Future Covenants
    • -Covenant for quiet enjoyment
    • -Covenant of warranty
    • -Covenant for further assurances
  149. What are the present covenants (land conveyancing, general warranty deed)?
    • Covenant of Seisin - grantor promises he owns the estate
    • Covenant of the right to convey - grantor has the power to make this transfer, there are no temporary restraints on grantor's capacity to sell
    • Covenant against encumbrances - no servitudes or mortgages on the property
  150. What are the future covenants (land conveyancing, general warranty deed)?
    • Covenant for quiet enjoyment - grantee will not be disturbed in possession by a 3rd party's lawful claim of title
    • Covenant of warranty - grantor promises to defend grantee against any lawful claims of title aserted by others
    • Covenant for further assurances - grantor promises to do whatever is needed in the future to perfect the title
  151. Covenant of Seisin (land conveyancing, general warranty deed)
    Grantor promises he owns the estate.
  152. Covenant of the right to convey (land conveyancing, general warranty deed)
    Grantor has the power to make the transfer, there are no temporary restraints on grantor's capacity to sell.
  153. Covenant against encumbrances (land conveyancing, general warranty deed)
    No servitude or mortgages on the property.
  154. Covenant for quiet enjoyment (land conveyancing, general warranty deed)
    Grantee will not be disturbed in possession by a 3rd party's lawful claim of title.
  155. Covenant of warranty (land conveyancing, general warranty deed)
    Grantor promises to defend grantee against any lawful claims of title aswerted by others.
  156. Covenant for further assurances (land conveyancing, general warranty deed)
    Grantor promises to do whatever is needed in the future to perfect the title.
  157. Special statutory warranty deed
    Two promises that the grantor makes only on behalf of himself:

    • 1) He hasn't conveyed Blackacre to anyone other than grantee, and
    • 2) Blackacre is free from encumbrances made by the Grantor.
  158. What is the difference between a notice and a race-notice jurisdiction (recording system)?
    • Notice Jurisdiciton - Bona Fide Purchaser wins regardless of whether or not she records first
    • Race-Notice Jurisdiction - Bona Fide Purchaser wins if she records property before A does
  159. Notice Jurisdiction (recording system)
    Bona Fide Purchaser wins regardless of whether or not she records first.
  160. Race-Notice Jurisdiction (recording system)
    Bona Fide Purchaser wins if she records property before A does.
  161. Bona Fide Purchaser (recording system)
    • Purchases land for value and
    • Without notice that someone else got there first
    • Actual Notice or
    • Inquiry Notice - the buyer is on inquiry notice of whatever an examination of the land would show or
    • Record Notice
  162. The Shelter Rule
    One who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against.
  163. Wild Deed Problem
    If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed and is incapable of giving record notice of its existence.
  164. Estoppel by Deed
    One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires that previously transferred interest.
  165. Mortgage
    A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral.

    • Elements:
    • 1) A debt
    • 2) A voluntary lien in debtor's land to secure the debt

    Can be legal (evidenced by a writing) or equitable (debtor gives creditor deed as collateral).
  166. Legal Mortgage
    Evidenced by a writing.
  167. Equitable Mortgage
    The debtor gives the creditor a deed that is absolute on its face to hold as collateral.
  168. How do you transfer a mortgage?
    • Endorsing the note and delivering it to transferee, or
    • Executing a separate covenant of assignment
    • NOTE: Transferee may become a holder in due course
  169. Holder in due course (mortgages)
    Takes the note free of any personal defenses that could have been raised against the original creditor including lack of consideration, fraud in the inducement, unconsconability, waiver, or estoppel.

    • Elements to become a holder in due course:
    • 1) Note must be negotiable, made payable to the named mortgagee
    • 2) The original note must be indorsed, signed by the named mortgage
    • 3) The original note must be delivered to the transferee
    • 4) The transferee must take the note in good faith without notice of any illegality, and
    • 5) The transferee must pay value for the note, can't be nominal
  170. What are the personal defenses (mortgages)?
    • Lack of consideration
    • Fraud in the inducement
    • Unconscionability
    • Waiver
    • Estoppel
  171. What are the real defenses (mortgages)?
    • Material Alteration
    • Duress
    • Fraud in the Factum (a lie about the instrument)
    • Incapacity
    • Illegality
    • Infancy
    • Insolvency
  172. Who is liable for a mortgage in the event of a sale?
    Buyer assumed the mortgage -- both buyer and the original owner are personally liable, buyer primarily and original owner secondarily.

    Buyer takes "subject to the mortage" -- buyer assumes no personal liability, but the mortgage sticks with the land and if the owner doesn't pay, the bank can foreclose.
  173. How can a mortgageee foreclose on a mortgage?
    The mortgagee must foreclose by proper judicial action.

    • Off the top:
    • 1) Attorney's fees
    • 2) Foreclosure expenses, and
    • 3) Any accrued interest on the forecloser's mortgage

    Pay off mortages in the order of priority -- each is paid in full.

    Surplus goes to owner.
  174. If there is more than one mortgage on land, in what order are they paid off at foreclosure?
    • Pay of mortages in the order of priority -- each is paid in full.
    • NOTE: Foreclosure terminates interests junior to the mortgage being foreclosed but will not affect senior interests
  175. How does foreclosure affect interests junior to the mortgage?
    Foreclosure terminates inerests junior to the mortgage being foreclosed but will not affect senior interests.
  176. How do you determine the priority of mortgages at foreclosure?
    • A creditor must record: first in time, first in right UNLESS purchase money mortgagee
    • Subordination Agreement - senior creditor may agree to subordinate its priority to a junior creditor
  177. Subordination Agreement (mortgage, foreclosure)
    Senior creditor may agree to subordinate its priority to a junior creditor
  178. Redemption (mortgage, foreclosure)
    • Equitable Redemption - universally recognized up to the date of sale
    • Statutory Redemption - half of the states give the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occured
  179. Equitable Redemption (mortgage, foreclosure)
    Universally recognized up to the date of sale.
  180. Statutory Redemption (mortgage, foreclosure)
    Half of the states give the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occured.
  181. Lateral support
    If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavatory will be liable only if negligent.

    Strict liability does not attach unless plaintiff shows that his improved land would have collapsed even in its natural state (i.e., the weight of the building did not contribute to the collapse of the land) and it was therefore only the excavation that caused the collapse.
  182. When does strict liability attach when an adjacent landowner's excavation causes improved land to cave in?
    When the plaintiff shows that his improved land would have collapsed even in its natural state (i.e., the weight of the building did not contribute to the collapse of the land) and it was therefore only the excavation that caused the collapse.
  183. Riparian doctrine (water rights)
    The water belongs to those who own the land about its source/watering the watercourse.

    Riparians share the right of reasonable use of the water.
  184. Prior Appropriation Doctrine (water rights)
    The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.

    Rights are by priority of beneficial use -- any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropration right.
  185. How do you determine priority of water rights under the prior appropriation doctrine?
    Rights are by priority of beneficial use -- any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropration right.
  186. Groundwater (water rights)
    • Water beneath the surface of the earth that is not confiend to a known channel
    • The surface owner is entitled to make reasonable use of groundwater, but the use must not be wasteful
  187. Surface waters (water rights)
    Waters that come from rain, springs, or melting snow, and which have not yet reached a natural watercourse.
  188. Common Enemy Rule (water rights)
    A landowner may change drainage or make any other changes on his land to combat the flow of surface water unless it causes unecessary harm to others' land.
  189. What are the rights of a possessor of land?
    To be free from trespass (invasion of land by tangible physical object) and private nuisance (the substantial and unreasonable interference with another's use and enjoyment of the land -- exception: hypersensitive plaintiff)
  190. Trespass (possessor's rights)
    Invasion of land by tangible physical object.
  191. Private nuisance (possessor's rights)
    The substantial and unreasonable interference with another's use and enjoyment of the land.

    EXCEPTION: Hypersensitive plaintiff.
  192. Eminent domain
    Government's Fifth Amendment power to take private property for public use in exchange for just compensation.

    • Explicit takings - acts of government condemnation
    • Implicit or regulatory takings - a governmental regulation that, although not intended to be a taking, has the same effect
  193. Explicit takings (eminent domain)
    Acts of government condemnation.
  194. Implicit or regulatory takings (eminent domain)
    A governmental regulation that, although not intended to be a taking, has the same effect.
  195. What are the government's obligations if there is an implicit or regulatory taking?
    • Government must either compensate the owner, or
    • Terminate the regulation and pay owner for damages that occured while it was in effect
  196. Zoning
    Pursuant to its police powers, the government may enact statutes to reasonably control land use.
  197. Under what powers does the government enact zoning statutes?
    Police powers.
  198. What must the proponent show in order to get a variance to a zoning statute?
    • Undue hardship
    • Variance won't decrease neighboring property values
  199. Exactions (zoning)
    • Those amenities that government seeks in exchange for granting permission to build (i.e., granting a variance)
    • Exactions must be reasonably related both in nature and scope to the impact of the proposed development
  200. When is an exaction (i.e., an amneity the government seeks in exchange for granting a zoning variance) unconstitutional?
    When it is not reasonably related both in nature and scope to the impact of the proposed development.

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