Bar Property Card Set 2

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  1. Waste
    • Limites any estate except fee simple 
    • 1. Affirmative
    • 2. Permissive
    • 3. Ameliorative
  2. Fee Simple
    • - Largest possessory estate capable of lasting forever 
    • - inheritable 
    • - No future interest
  3. Fee Simple Determinable
    • - Limited by durational language (so long as, while, during, until) 
    • - Future Int = Possibility of Reverter for O(vests automatically)
  4. Fee Simple Subject to Condition Subsequent
    • - Limited by specific conditional language (but if, provided that, on the condition that) 
    • - Future int = Right of Entry (must be reclaimed by suit)
  5. Fee Simple Subject to Executory Interest
    • - Will end upon the happening of an event and the future interest will vest in a third party
    • - Future Interests = 
    • 1. Springing Executory Interest 
    • 2. Shifting Executory Interest
  6. Springing Executory Interest
    • - Future interest of Fee Simple Subject to Executory Interest
    • - Subject to RAP
    • - Divests the Grantor 
    • Oliver "to Anna for life, then to Ben one year after Anna's death" 
    • Oliver " to Anna after she is admitted to the bar" 
    • (Anna divests Oliver's interest)
  7. Shifting Executory Interest
    • - Future interest for Fee Simple Subject to Executory Interest 
    • -Subject to RAP 
    • - Divests prior Grantee 
    • Oliver "to Anna, but if the land is used for commercial purposes, to Ben"  
    • (Anna's interest is divested)
  8. Life Estate
    • - Limited by a life
    • - Transferable but not inheritable bc death = termination 
    • - Future Interest = Reversion or Remainder
  9. Reversion
    • - Future Interest for Life Estate 
    • - Possession of land goes back to grantor after life estate ends
  10. Remainder
    • - Future interest in Life Estate 
    • - Possession of the land goes back to a third party after the life estate ends (executory interest) 
    • 1. Vested Remainder 
    • 2. Contingent Remainder
    • 3. Vested Subject to Open Remainder
  11. Vested Remainder
    • - Executory future interest of Life Estate 
    • - Given to an ascertainable grantee, not subject to a condition precedent - otherwise contingent 
    • Oliver "to Anna for life, then to Ben"
  12. Contingent Remainder
    • - Future Executory Interest of Life estate
    • - Subject to RAP
    • Oliver, "to A for life, then to A's first born grandchild."  At the time of conveyance, A does not have grandchildren
    • - grandchild = contingent remainder
  13. Vested Subject to Open
    - Future executory interest in life estate 

    -Class gifts where full class membership is unknown but at least one person must be vested otherwise contingent

    - Oliver conveys Blackacre “to Anna for life, then to Anna’s children who reach 21.” Anna has three kids—Ben is 25, Carmen is 18, and David is 15.
  14. When does RAP apply?
    1. Inter vivos Transfers = Interests created at time of grant

    2. Devise (will) = Interests created at testator’s death
  15. What interests does RAP apply to?
    1. Contingent Remainders

    2. Executory Interests

    3. Vested remainders subject to open if remainder not closed by Rule of Convenience
  16. Validating Life
    - Person who tells us whether the interest vests or not within the perpetuities period (lifetime plus 21 years)

    - Must have been alive when ints created b) Can validate own life

    - No validating life, then int is no good and we strike it from grant
  17. Special RAP Rules
    - “Bad as to one, Bad as to all.”  

    - Rule of Convenience

    - Doctrine of Worthier Title 

    - Rule in Shelly's Case
  18. “Bad as to one, Bad as to all.”   RAP Rules
    - RAP rule 

    -If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class.
  19. Rule of Convenience
    - RAP rule

    - Prevent classifying int as vested subject to open and therefore avoid RAP.

    - If grant doesn’t express closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession

    • - Oliver conveys “to Anna for life, then to Ben’s children.” Ben has one child.
    • = Class closes under Rule of Convenience when Anna dies.
  20. Doctrine of Worthier Title
    - Prevents against remainders in the grantor’s heirs.

    -Creates presumption in a reversion to the grantor.

    -Oliver conveys “to Anna for life, then to my heirs.”  = O retains reversion after Anna dies
  21. Rule in Shelly's Case
    - Prevents against remainders in grantee’s heirs.

    - Uses doctrine of merger to create a fee simple.

    - Oliver conveys “to Anna for life, then to Anna’s heirs.”  = Anna has a fee simple
  22. Exceptions to Class Gift Rule
    - Transfer of a specific dollar amount to each class member and

    • - Transfers to a subclass that vests at a specific time
    • = “to the children of B, and upon the death of each, to that child’s issue”
  23. Exceptions to RAP
    - Gift from one charity to another charity - gift to alternate charity not subject to RAP

    - Does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property
  24. Ameliorative Waste
    -waste caused by voluntary conduct which causes a decrease in value
  25. Permissive Waste
    -waste caused by neglect towards property which causes a decrease in value
  26. Ameliorative Waste
    -special situation where a life tenant or other person in possession changes the use of the property and actually increases the value of the prop
  27. Concurrent Estates
    • - Tenancy in Common 
    • - Joint Tenancy 
    • - Tenancy in the Entirety
  28. Tenancy in Common
    • - Separate but undivided possession interests in the property with right to possess the whole (unity of possession) 
    • -NO right of survivorship

    - Default

    - Freely devisable / transferable
  29. Joint Tenancy
    - Two or more tenants own with Right of Survivorship 

    - Ints are alienable BUT not devisable/descendible 

    • - Four Unities 
    • 1. Unity of Possession 
    • 2. Unity of Interest
    • 3. Unity of Time
    • 4. Unity of Title 

    - Termination = If any unity is broken, sale, partition, mortgage (title theory)
  30. What happens to a lien against a joint tenant's interest upon death?
    - Severs joint tenancy at death so other joint tenant's not encumbered
  31. What happens to a joint tenancy with a mortgage?
    -Majority: Lien Theory does not destroy tenancy

    - Minority: Title Theory severs title and the tenancy and creditor is converted into a tenancy in common
  32. Tenancy by the Entirety
    - Joint tenancy btwn married spouses

    - Right of survivorship

    - Cannot alienate or encumber their shares w/o consent of spouse

    - Ambiguity = Presume joint tenants or tenants in common
  33. Rights and obligations of Concurrent Owners
    - Co-T in exclusive possession not liable for rents/profits unless ouster

    - Can collect operating expenses

    - No contribution for reasonable repairs and improvements (unless accounting/partition)

    - Liable for 3rd party rent
  34. Partition
    - Equitable remedy available to all holders of tenancy in common or joint tenancy

    • 1. Partition in kind 
    • 2. Partition in sale
  35. Partition in Kind
    - Equitable remedy for Concurrent tenants

    - Physical partition 

    - Court preference
  36. Partition in Sale
    - Equitable remedy for Concurrent Tenants

    - Sale only is partition in kind not practical or fair to all parties
  37. Types of Tenancies (Landlord / Tenant)
    - Tenancy for Years 

    - Periodic Tenancy 

    - Tenancy at Will 

    - Tenancy at Sufferance
  38. Tenancy for Years
    - Measured by fixed and ascertainable amount of time, need not be years

    - Creation: An agreement by the Landlord and the Tenant (intent)

    - If longer than one year need writing (SoF)

    - Termination:

    At end of term: Automatic at expiration of term.  No notice unless K rqrs it

    Before term over: (a) Tenant surrenders lease, or (b) T or L commits material breach of lease
  39. Periodic Tenancy
    - Estate that is repetitive and ongoing for a set period of time (year-to-year, month-to-month).

    - Renews automatically at end of each period until party gives notice of termination.

    - Creation: Parties must intend to create a periodic tenancy. Express or implied

    - Termination: (1) Proper notice rqd before start of what will be last period (2) Notice effective the last day of the period.
  40. Tenancy at Will
    - May be terminated by either L or T at any time, for any reason

    - Creation: Express agreement or implication

    - Termination: Either party w/o notice OR If L or T dies, tenancy at will terminated (not so for others)
  41. Tenancy at Sufferance
    - Create when a T holdover after the lease has ended = temporary tenancy that exists before L either evicts the T or re-rents the prop to T

    - Terms of prior lease control

    - Termination: (1) T voluntarily leaves, or (2) L evicts T, or (3) L re-rents to the T
  42. Tenant Duties
    - Duty to Pay Rent 

    - Duty to Repair 

     - Duty to Avoid Waste
  43. Reasons for Tenant Suspension of Duty to Pay Rent
    • - Duty to pay rent arises from K-tual relationship, therefore breach of lease can release T from duty to pay rent. 
    • (Implied Covenant of Quiet Enjoyment and Implied Warranty of Habitability) 

    - Premises destroyed with no fault by T

    - L completely or partially evicts T
  44. Implied Covenant of Quiet Enjoyment Rule
    Rule: T can withhold rent when the L takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the T is constructively evicted
  45. Implied Covenant of Quiet Enjoyment Elements
    • Elements
    • (1) Premises were unusable for their intended purpose
    • (2) T notifies L of the problem
    • (3) L does not correct the problem
    • (4) T vacates the premises after a reasonable amount of time has passed
  46. Implied Warranty of Habitability Rule
    Rule: The L has an obligation to maintain the property such that it is suitable for residential use. (Health and safety conditions)

    - T cannot waive habitability protection

    - L’s failure to comply with applicable housing codes constitutes breach

    - Applies to residential props not commercial
  47. Breach of Implied Warranty of Habitability Remedies
    Remedy if premises not habitable:

    • 1. T may Refuse to pay rent
    • - Must notify L of prob;
    • - Give L reasonable opp to cure

    2. Remedy the defect and offset costs against the rent;

    3. Defense against eviction

    - T does not have to vacate
  48. Tenant Duty to Avoid Waste
    - No affirmative or permissive waste beyond “normal wear and tear”

    - May make ameliorative waste w/ permission
  49. Tenant Duty to Repair
    - Residential Lease - L is presumed to be responsible for repairs and T must notify L when needed

    - L not responsible for repairs caused by T’s actions

    - Commercial Lease - L can place duty to repair on T
  50. Landlord Duties
    - Duty to Mitigate Damages 

    - Duty to Deliver Possession 

    - Duty Over Conditions of Leased Premises 

    - Tort Liability
  51. Landlord Duty to Mitigate Damages
    • Majority Rule:
    • - L must make reasonable efforts to re-rent prop otherwise T relieved from obligation to continue paying rent

    - If L seeks to mitigate, entitled to difference btwn the original rent and the rent received from the replacement T

    - Does not have to accept unacceptable replacement T

    Minority Rule:

    - L does not have to mitigate damages. Usually commercial leases.
  52. Landlord Remedies for Holdover Tenant
    - Can evict holdover T; or

    - Continue relationship with T by treating holdover as a periodic T (by accepting rent)
  53. Landlord Duty to Deliver Possession
    • Majority Rule:
    • - L must deliver actual possession of the leasehold premises (physical)

    • Minority Rule:
    • - L only rqrd to deliver legal possession
  54. Landlord Duty Over Leased Premises
    - Violation of Quiet Enjoyment if L does not control 1) Common areas and 2) Nuisance like behavior or other Ts
  55. Landlord Tort Liability
    - T owes a duty of care - to invitees, licensees, and foreseeable trespassers
  56. Landlord liability to invitees, licensees and foreseeable trespassers
    - Responsible in negligence for latent defects about which T has not been warned

    -Responsible for faulty repairs completed by L or L’s agent negligently

    Responsible for negligence that causes injuries in common areas of prop
  57. Assignment and Rent Liability
    - Complete transfer of the T’s remaining term

    - Rent: L can collect from:

    1) T (privity of K); or

    2) Sub T (privity of estate)
  58. Sublease and Rent Liability
    - Transfer of less than entire duration of the lease (T retains a reversionary int in the leasehold)

    • - Rent: L can collect from:
    • 1) T only (privity of K and privity of estate)

    2) Sub T only has rent obligations to original T
  59. Denial of Assignment and Sublease
    Majority: A L may deny permission to a transfer only for a commercially reasonable reason 2

    Minority: A L may deny permission at her discretion
  60. Fair Housing and Discrimination Statutes
    - Fair housing and discrimination statutes restrict a L’s ability to choose Ts

    - Coverage: Multi-Family residential housing

    - Protection of Race, color, religion, national origin, sex, disability, and familial status (special exemption for senior living)

    • Prohibitions:
    • 1. Refusing to rent
    • 2. Requiring different rents
    • 3. Falsely denying unit is available
    • 4. Providing different services to facilities
    • 5. Stating a discriminatory preference in an ad

    Causation:  Prohibited behavior must be linked to protected basis
  61. Adverse Possession Rule
    - Allows a person in unlawful possession to acquire good title to a piece of the property. Until the person acquires good title, the person is a trespasser. 

    - Govt prop cannot be adversely possessed
  62. Elements of Adverse Possession

    • - Continuous for statutory Period
    • - Open and Notorious
    • - Hostile and adverse to O's interests 
    • - Exclusive
  63. Adverse Possession Continuous Elements
    - Continuous for statutory period

    - Tacking of predecessor’s time to satisfy statute of limitations ONLY if there was privity

    - Statute of limitations will not run with disabilities prior to adverse possession (insanity, infancy, imprisonment)

    - Interruptions by court ejection stop the possession clock
  64. Adverse Possession Open and Notorious Element
    Enough to put reasonable true owner on notice of adverse use
  65. Adverse Possession Hostile and Adverse Element
    • Majority:
    • - Do not inquire into Adverse Poss’s state of mind

    • Minority:
    • - Inquire into state of mind

    1. Good Faith: AP thinks the land is unowned or that he is rightful owner. Adverse possession based on mistake.


    2. Bad Faith: AP tries to acquire title to prop by adverse poss. (Aggressive trespass)
  66. Adverse Possession Exclusive Element
    - Cannot share possession w/ true O.

    - If 2 APs = tenants in common (can’t be join bc no instrument)
  67. Scope of Adverse Possession
    - Traces the legal boundaries of the prop

    - Exception: Constructive Possession

    AP enters under color of title from an invalid instrument and occupies a portion of the prop described in the instrument. AP is in actual possession of the land occupied, and constructive possession of the remaining land described in the deed.

    - Includes subsurface rights unless already belong to third party

    - Easements can also be acquired by adverse poss or prescription
  68. Doctrine of Merger Rule (Land Sale Contracts)
    Covenants under the K are merged into the deed and therefore cannot be enforced unless the covenant is also in the deed.
  69. Land Sale Doctrine SoF Requirements
    1. Must be in writing;

    2. Must be signed by party to be charged; and

    3. Must include essential terms a) Parties, b) Description of prop, c) Price and payment info
  70. When is a writing not needed in Land Sale Ks?
    • 1. Part-Performance
    • a) Payment of all or part of PP
    • b) Possession by purchaser
    • c) Improvement by the purchaser

    • 2. Detrimental Reliance (estoppel)
    • a) Estoppel applies where a party has reasonably relied on the K and would suffer hardship if the K is not enforced.
  71. Marketable Title General Rule
    Every land sale K includes an implied covenant of marketable title - title free from an unreasonable risk of litigation
  72. When must defects be cured for Marketable Title?
    BEFORE closing
  73. Remedy for Non-Marketable Title
    Recision of K
  74. Implied Warranty of Fitness or Suitability Rule
    Applies to defects in new construction.

    Majority JXs - both initial homeowner-purchaser and sub purchaser may recover damages. In others, only original.
  75. Duty to Disclose Defects (Land Sale Ks)
    • - Most JXs impose duty on S to disclose all known, physical material defects that are 
    • 1. latent and 
    • 2. substantially affect value of home, health and safety

    - General disclaimers not enough
  76. Seller Remedies for Breach by Buyer in Land Sale K ?
    1. Damages: Diff btwn KP and FMV on date of breach

    2. Recision

    3. Specific Performance
  77. Buyer's Remedies for Seller Breach of Land Sale K?
    • Bad faith breach
    • 1. Damages
    • 2. Recision
    • 3. Specific performance

    • Good Faith Breach
    • 1. Out of Pocket expenses
  78. Equitable Conversion and Risk of Loss in Land Sale K
    • Majority Rule: 
    • - B holds equitable title during the period btwn execution of the K and the closing and delivery of the deed
    • - B responsible for any damage to prop during that period
    • - S has right to possess prop as legal title holder

    • Minority Rule: 
    • - Place risk of loss on S until closing and delivery of deed
  79. Mortgagor
  80. Mortgagee
  81. Lien States and Mortgage
    • - Majority
    • - Treat a mortgage as a lien that does NOT sever joint tenancy

    - Legal title is owned by mortgagor

    - judicial forclosure
  82. Title States and Mortgage
    - Holds that mortgage severs joint tenancy and converts it into tenancy in common

    - Legal title is owned by mortgagee - nonjudicial foreclosure
  83. Types of Transfers by Mortgagors
    1. Assumption 

    2. Subject to Existing Mortgage
  84. Assumption of Mortgage Liability
    Both original Debtor and second B responsible for mortgage
  85. Subject to Existing Mortgage
    - Original debtor liable for mortgage.

    - If original debtor defaults, lender can still foreclose on prop

    - Default unless deed says assumption

    - A “due-on-sale” clause = enforceable
  86. Types of Foreclosure
    1. Judicial Sale under court supervision 

    2. Power of Sal by Lender
  87. Deficiency Judgments
    Can be held for remaining balance after foreclosure sale
  88. Equity of Redemption (Land Sale Ks)
    CL right held by the mortgagor to proclaim title and prevent foreclosure upon full payment of the debt BEFORE foreclosure sale.
  89. Statutory Redemption (Land Sale Ks)
    - Some states allow mortgagor to redeem the prop even after the foreclosure sale = nullify foreclosure sale and restore title to mortgagor.
  90. Deed in Lieu of foreclosure
    - Conveyance of property to Lender in exchange for releasing any outstanding debt
  91. Delivery and Recording of Deed Rule
    - For a deed to be valid, it must be delivered and accepted.
  92. Delivery of Deed
    - Delivery:

    a) Whether the grantor had the present intent to transfer the property.

    b) Physical transfer not nec
  93. Acceptance of Deed
    - Gen presumed if gift is of value
  94. Valid Deed Requirements
    A valid deed must:

    a) Identify the parties;

    b) Be signed by the grantor (SoF);

    c) Include words of transfer;

    d) Sufficient description of prop (no nec to be legal)
  95. Common Law Recording Rule
    A deed does NOT have to be recorded to be valid.  First in right/time wins.
  96. Interests covered by Recording Statutes
    • (1) Deeds
    • (2) Mortgages
    • (3) Leases
    • (4) Options
    • (5) Judgment affecting title
    • (6) Other instruments creating an int in land, such as easements and covenants
  97. Types of Notice in Recording Statutes
    • (1) Actual notice
    • (2) Constructive notice - prior ints is recorded
    • (3) Inquiry notice- reasonable investigation would have disclosed existence of prior claims
  98. Types of Recording Statutes
    • 1. Race Statutes
    • 2. Notice Statutes
    • 3. Race-Notice Statutes
  99. Race Statutes
    - First to record wins, even if subsequent purchaser had notice of a prior, unrecorded conveyance.
  100. Notice Statutes
    Subsequent purchaser has good title if she buys without notice of a prior, unrecorded conveyance (in good faith)
  101. Race-Notice Statutes
    Subsequent purchaser has good title if purchase without notice or a prior unrecorded conveyance AND recorded first.
  102. Shelter Rule of Recording Statutes
    A person who takes from a BFP is protected by the recording acts the sameway as his grantor. (Even if BFP had notice, if his grantor did not, it is ok)
  103. Estopped by Deed Rule of Recording Statutes
    Arises when grantor conveys the land the grantor does not own.  If grantor subsequently acquires the title to the land, the grantor is estopped from trying to repossess on grounds that he did not have title when he made orig conveyance.
  104. Types of Deeds
    • 1. General Warranty Deed 
    • 2. Special Warranty Deed
    • 3. Quit Claim Deed
  105. General Warranty Deed
    • - Provides greatest amount of title protection. 
    • Grantor warrants against all defects, even if grantor did not cause them. 

    • - Six Implied Covenants (Present and Future) 
    • 1. Covenant of Seisen 
    • 2. Covenant of the Right to Convey
    • 3. Covenant Against Encumbrances
    • 4. Covenant of Quiet Enjoyment 
    • 5. Covenant of Warranty 
    • 6. Covenant of Future Assurances
  106. Covenant of Seisen
    Present Covenant that warrants deed describes land in Q
  107. Covenant of the Right to Convey
    Present Covenant that warrants grantor has the right to convey prop
  108. Covenant Against Future Encumbrances
    Present Covenant that warrants there are no undisclosed encumbrances on prop that could limit its value
  109. Covenant of Quiet Enjoyment
    Future Covenant whereby grantor promises to defend against future challenges to grantee's title to prop
  110. Covenant of Warranty
    Future Covenant whereby grantor promises to defend against future assertions of encroachment
  111. Covenant of Future Assurances
    Future Covenant whereby grantor promises t fix future title problems
  112. Special Warranty Deed
    Warrants against defects caused by grantor.
  113. Quit Claim Deed
    - Grantor makes no warranties as to the health of the title.
  114. Heirs
    People who take a decedent's intestate estate
  115. Types of Gifts in a Will
    • 1. Specific Gift
    • 2. General Devise 
    • 3. Demonstrative Devise
    • 4. Residuary Gift
  116. Specific Gift in Will
    A devise of prop that can be distinguished from the rest of testator’s estate.
  117. General Devise in Will
    Devise of personal prop that will be satisfied from the general assets of the estate.
  118. Demonstrative Gift in Will
    General devise that is satisfied from a particular source.
  119. Residuary Gift in Will
    Balance of the estate after all general and specific gifts have been made.
  120. Ademption by extinction (Wills)
    Devise of prop fails or is adeemed bc it is no longer in the testator’s estate at the testator’s death. (beneficiary gets nothing). 

    Exception: Ademption by Satisfaction - If testator gives the prop to the beneficiary while the testator is alive, the gift is adeemed by satisfaction
  121. Lapse Statutes (Wills)
    A devise of prop can also fail (lapse) if the beneficiary dies before the testator dies, and no alternate beneficiary is made in the will. (becomes residuary gift)
  122. Anti-Lapse Statutes(Wills)
    All JXs have statutes designed to prevent gifts from lapsing if two elements are met then goes to issue and does not lapse.

    1. If the lapsed gift was made to a party specified in the statute (usually family); AND

    2. Deceased beneficiary survived by issue
  123. Trust
    Device for managing property whereby trustee owns property (legal title) for the benefit of beneficiary (hold equitable title and enforces trust)

    Bifurcated transfer: Trustee holds legal title, while beneficiary holds equitable title.
  124. Effect of Restraints on Alienation
    - If restraints is valid, any attempt to alienate prop will be null and void.  

    - If restraint is invalid, restraint is rejected and prop can be alienated in violation of restraint.
  125. Easements - Definition and Types
    Right held by one person to make use of another person’s land 

    • 1. Affirmative or Negative 
    • 2. Appurtenant or Gross
  126. Land Burdened by an easement
    Servient Estate
  127. Land benefited by an easement
    - Dominant Estate
  128. Easement Appurtenant
    - Tied to the land. Holder benefitted by use of land
  129. Easement in Gross
    - Benefits the holder personally (no dominant estate)
  130. Express Easements
    - Subject to SoF so must be in writing

    - Negative easements must be express. - -

    • - Scope
    • (1) Based on terms and if ambig on intent of original parties as to the purpose of the easement
    • (2) Changes on use tested under reasonableness standard. Future use must be reasonably foreseeable.
    • (3) If use exceeds scope, dominant tenant is trespassing on easement.
  131. Can T assign even if prohibited by lease?
    Yes, but then S can terminate for breach and sue for damages.
  132. Time is of the Essence (Land Sale K)
    Not enforces unless part of K (express/implied) , but party failing to perform on closing date is in breach
  133. Implied Easements
    Easements by operation of law

    - Not formal. Arise out of factual circs

    - Not subject to SoF or Recording statutes  UNLESS B had NOTICE of easement 

    - Scope: Determined by prior use or necessity
  134. Types of Implied Easements
    • 1. Easement by Necessity 
    • 2. Easement by Implication 
    • 3. Easement by Prescription 
    • 4. Easement by Estoppel
  135. Easement by Necessity
    • Creation:
    • - Created only when prop is virtually valueless (landlocked)
    • - Can only arise when:
    • (1) Common Ownership: Dominant and servient estates were owned by one person; AND
    • (2) Necessity at Severance: Nec (strict) arose when severed into two separate estates.

    Termination: When no longer nec
  136. Easement by Implication
    - Easement created by an existing use on a prop

    • Creation: 
    • 1. Common Ownership, and
    • 2. Quasi-Easement: Before division, O of large tract uses the land as if easement of it; 3. Continuous and apparent at time of severance
    • 4. Reasonably nec to the dominant estate’s use and enjoyment
  137. Easement by Prescription
    Easement by adverse possession (but about use not possession)

    • Creation: Same as AP, except no exclusivity
    • 1. Continuous for statutory period
    • 2. Open and Notorious, and
    • 3. Hostile
  138. Easement by Estoppel
    - Easement that results from detrimental reliance

    • Creation:
    • 1. Starts w/ permissive use
    • 2. Then reliance on promise (reasonable and in good faith).
    • 3. Finally first neighbor withdraws permission
  139. Duty to Maintain Easement
    Owner of Easement has duty to maintain
  140. Termination of Easement (7 ways)
    • 1. Release: Holder expressly releases it. Must be in writing (SoF)
    • 2. Merger: Terminated if O of easement acquires fee title to the underlying estate. Easement mergers into the title.
    • 3. Abandonment: O acts in an affirmative way that shows a clear intent to relinquish the right. More than non-use. Need non-use plus an act demonstrating intent to abandon.
    • 4. Holder fails to protect against trespasser for statutory period
    • 5. Sale to BFP
    • 6. Estoppel: Servient O changes position to his detriment in reliance on statements / conduct of the easement holder that the easement is abandoned.
    • 7. End of Necessity
  141. Profit (Easements)
    Not an easement 

    - Right to enter another’s land and remove a specific natural resource. CANNOT be created by necessity but otherwise similar.
  142. License (Easement)
    Not an easement 

    - A revocable permission to use another’s land; ticket to sporting event
  143. Real Covenants Definition and Elements
    - A promise concerning the use of the land that runs to successors to the promise (runs with the land)

    • 1. Writing 
    • 2. Intent 
    • 3. Touch and Concerns 
    • 4. Notice
    • 5. Privity
  144. Touch and Concern Element of Covenants
    - Benefit or burden of covenant must affect both the promisee and promisor as Os of the land

    - Negative Covenants: Restriction on use will usually touch and concern, unless unenforceable promise.

    - Affirmative Covenants: Covenants to pay money (HOA fees) touch and concern
  145. Notice Elements of Covenants
    Actual or Record
  146. Privity Element of Covenants
    • Horizontal Privity - Original parties must have been in horizontal privity
    • (a) Estate and covenant contained in same instrument (e.g., deed)

    • Vertical Privity - Original party and successor
    • (a) Burden of covenant: Successor must take original party’s entire interest
    • (b) Benefit of covenant: Successor need only take int carved of the original party’s estate.
  147. Remedy for Breach of Covenant
  148. Equitable Servitude
    - Like Covenant but easier requirements (if have this don’t need to find covenant) 


    • To bind successor must:
    • 1. Be in writing (unless implied reciprocal servitude)
    • 2. Intent to run with the land
    • 3. Touch and concern the land
    • 4. Successor must have notice (actual, record or INQUIRY) BUT
    • 5. NO privity rqt
  149. Remedy for Breach of Equitable Servitude
  150. Implied Reciprocal Servitudes
    • - Implied, need not be in writing.
    • - Usually comes w/ planned communities.


    • 1. Intent to create on all plots in subdivision
    • 2. Must be reciprocal (benefits and burdens each parcel)
    • 3. Must be negative rather than positive
    • 4. Successor must be on notice of restriction; and
    • 5. Must be a common scheme or plan
  151. Termination of Implied Reciprocal Servitudes
    Changed Circumstances Doctrine: Restriction no longer makes sense due to drastic changes in the surrounding area since restriction put in place.

    - Does property subject to the restriction still retain some benefit from the restriction?
  152. Types of Support Rights
    • 1. Lateral Support Rights 
    • 2. Subjacent Support Rights
  153. Lateral Support Rights and Liability
    Rule: Neighboring O cannot excavate so as to cause a cave in on neighbor’s land

    • Liability
    • a) If neighbor’s surface buildings contribute to the subsidence = Negligence liab

    b) If neighbor’s surface buildings did not contribute to subsidence = Strict liab
  154. Subjacent Support Rights and Liability
    Rule: Rights of surface landowners not to have their land subside from the activities of the Os of underground rights

    • Liability
    • a) Buildings that existed when rights created = O of mineral rights strictly liab for any failure to support the land and any buildings on it

    b) Buildings that existed after rights created = Negligence for damage to buildings
  155. Variance of Zoning Law
    - O may request variance from zoning ordinance if the O can demonstrate that the ordinance imposes a unique hardship on her

    -Variance cannot be contrary to welfare
  156. Non-Conforming Use (Zoning)
    A use that lawfully existed before the zoning ordinance existed but violates it once the ordinance is enacted.

    - Most JXs permit such a use to continue, but prohibit expansion.
  157. Doctrine of Vested Rights (Zoning)
    Developer in middle of building project when zoning ordinance changed.  Use is acceptable if project started in good faith before the change in law.
  158. Eminent Domain
    - Gives Fed and state govts power to take prop title through forced sale to govt

    • Elements 
    • 1. Prop must be for public use / purpose
    • 2. There must be just compensation
  159. Regulatory Taking
    Not the same as eminent domain.  

    Govt regulates piece of prop and regulation reduces its econ value to point where govt must pay just comp
  160. Types of Nuisance
    • 1. Private Nuisance 
    • 2. Public Nuisance
  161. Private Nuisance
    Rule: Substantial and Unreasonable interference w/ another indiv’s use or enjoyment of his property

    Substantial: One that would be offensive, inconvenient, or annoying to an average person in the community.

    Unreasonable: Injury caused outweighs the usefulness of the D’s actions
  162. Public Nuisance
    - Unreasonable interference w/ the health, safety, or prop rights of the community.

    - Private Party: When she shows that she suffered a diff kind of harm than rest of community
  163. Damages for Nuisance
    Damages, unless inadequate or unavailable, then injunction
Card Set:
Bar Property Card Set 2
2013-06-19 08:45:49
Property law

Property Law for Bar
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