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Present possessory interests
- 1. Fee simple absolute
- 2. Defeasible fees
- 3. Life Estates
- 1. Fee Simple Determinable
- 2. Fee simple subject to condition subsequent
- 3. Fee simple subject to executory limitation
- 1. Life of Grantee
- 2. Life estate pur autre vie
Life estate - duty to avoid waste?
- 1. Voluntary waste (affirmative)
- 2. Permissive waste (neglect)
- 3. Ameliorative waste
conduct that decreases the value of the estate
neglect or failure to protect or preserve the estate
economically benefits the property
Future interests in grantor
- 1. possibility of reverter - follows fee simple determinable
- 2. right of entry
- 3. reversion - resulting interest when grantor transfers an estate lesser than she had
Future interests in 3rd person or grantee
- 1. Vested Remainder
- 2. Contingent Remainders
- 3. Executory Intersts
created in an ascertained person, and not subject to condition precedent
Vested Remainder subject to complete defeasance
remainderman's interests could be cut short by condition subsequent
Vested Remainder subject to open
remainder's interest subject to diminution because additional, unascertained persons can qualify as a class member
- created in unascertained person, or subject to condition precedent
- 1. Rule of destructibility
- 2. Merger Rule
- 3. Rule in Shelley's Case
- 4. Doctrine of worthier title
- 1. Shifting - 3rd person cuts short the an interest in another person
- 2. Springing - 3rd person's interest cuts short an interest in the grantor or his heirs
Rights and duties of co-tenants
- 1. Right to Possession
- 2. Right to retain profits from own use of the land (unless it's 3rd party rent, or exploiting the land)
- 3. Duty to pay fair share of taxes and mortgage interest
- 4. Right of contribution for reasonable repairs, if notice was given
- 5. No right to contribution for improvements
- 6. Duty to not commit waste
- 1. Duty to repair (waste?)
- 2. Duty to pay rent
- 3. Liability to 3rd parties
- 1. Duty to deliver possession at beginning of term
- 2. Implied covenant of quiet enjoyment (constructive eviction is a breach)
- 3. Implied warranty of habitability
- 4. Possible tort liability
Implied warranty of habitability
Landlord has tort liability for what areas?
Assignment of a lease
- tenant transfers entire leasehold estate
- 1. Covenants that run with the land are enforceable (against both LL and assignee)
- 2. Assignee stands in shoes of tenant in relationship with landlord (privity of estate)
- 3. Assignor (original tenan) and landlord remain in privity of contract. Secondarily liable to each other.
- tenant transfers LESS than entire leasehold estate
- 1) Subleasee and LL are not in privity of estate
- 2) original tenant and LL remain in privity
- 3) subleasee pays rent to sublessor, and LL may terminate main lease for nonpayment of rent
- if owner does not, within the statutory period, eject possessor who claims adversely to owner, title vests in possessor
- 1) COAH
- 2) tacking permitted if privity
- 3) disabilities - statutory period does not run if true owner was under some disability to sue when cause of action first accrued
- grant of nonpossessory interest in land that entitles holder to use or enjoyment of another's land
- 1. affirmative or negative
- 2. easement appurtinent - benefits holder in his physical use or enjoyment of land
- 3. easement in gross - right to use servient tenement is independent of holder's possesion of another parcel of land
how do you create an easement?
- 1. Prescription (COAH)
- 2. Implication (if apparent at time of division of land, and use is reasonbly necessary to the dominant tenement's use and enjoyment)
- 3. Necessity
- 4. Grant
Termination of Easement
- 1. Estoppel
- 2. Necessity ends
- 3. Destruction of servient land
- 4. Condemnation
- 5. Release (in writing)
- 6. Abandonment
- 7. Merger (of the two parcels)
- 8. Prescription (reclaim the easement by AP)
- Mere privilege to use another's land for a narrow purpose
- 1) SoF does not apply
- 2) revocable unless estoppel applies
- 1) Holder may enter the servient tenement and take mineral, soil, or other resource
- 2) akin to an easement
a written promise (contractual limitation) to do or not do something related to land
Covenant - burden runs with the land?
- 1) Writing
- 2) Intent
- 3) Touches and concerns - relates to use and enjoyment of land
- 4) Horizontal Privity
- 5) Vertical Privity
- 6) Notice - actual, inquiry, or record
Covenant - benefit runs with the land?
- 1) Writing
- 2) Intent
- 3) Touch and concern
- 4) Vertical Privity
Termination of a covenant?
- 1) written release
- 2) Merger of parcels
- 3) condemnation
Remedy for breach of a covenant?
money damages only
- promise that equity (injunctive relief) will enforce against successor of burdened land
- 1) writing
- 2) intent
- 3) touch and concern
- 4) notice
Implied equitable servitude or common scheme doctrine?
- original deeds contain common restriction, but subsequent deeds are silent
- Reciprocal negative servitude
- 1) subdivider had a general scheme of residential development, including defendant's lot
- 2) notice (actual, inquiry, record)
changed conditions re equitable servitude
conditions so pervasive that neighborhood character change prevents enforcement of equitable servitude
Lateral Support of land in natural state?
lateral support of land with buildings?
- 1) strict liability if it would have collapsed in natural state
- 2) otherwise, must prove negligence
- 1) underground occupant must support surface and buildings existing on date subjacent estate was created
- 2) liability for subsequently ereted buildings requires negligence
5th am power to take private property for public use for just compensation
- 1) explicit - govt condemnation
- 2) implicit or regulatory
- private claim that a govt regulation has taken all economic value
- 1) Categorical taking of all economic value
- 2) reasonable return test - no taking if owner left with reasonable return on investment
- 3) diminution of value test - taking if no reasonable return on investment
- if owner succeeds in takings claim, govt must compensate the owner, or terminate the regulation and pay damages
- state power to reasonably control land use for health, safety, and welfare
- nonconforming use cannot be eliminated at once unless just compensation
what is a variance?
a permit to depart from zoning
Land sale contracts - what happens once it is signed?
- once contract is signed, equity regards buyer as owner
- risk of loss placed on buyer
Land sale contract - what warranties available?
- 1) every contract has implied warranty that seller will provide marketable title at closing
- 2) warranty of fitness or quality? only if there is a sale of a new house by the builder
- 3) liability for defects - seller liable for defects if misrepresentation, active concealment, and failure to disclose
what is unmarketable title?
- 1) title may be unmarketable because of defects in the chain of title
- 2) title acquired by adverse possession is unmarketable
- 3) future intersts held by unborn or unascertained people are unmarketable
- 4) encumberances (mortgage, lien, easement, restrictive covenants) render title unmarketable unless buyer waives
- 5) zoning restrictions - existing violation of them renders title unmarketable
what is a deed?
formalities - writing, signed by grantor, which reasonably identifies parties and land
delivery of a deed
- grantor's intention to make deed at present renders it effective, even if possessoin is postponed
- delivery is satisfied by: manual deliver, notarized acknowledgement by grantor, recording or anything else showing grantor's intent
- acceptance by grantee is required for effective delivery!
Types of deeds?
- 1) Quitclaim deed (no convenants)
- 2) General warranty deed (warrants against all defects)
- 3) statutory special warranty deed
- 4) estoppel by deed - subsequent acquitision of propety by grantor inures to benefit grantee, except against BFP
General warranty deed, what covenants?
- 1) Present covenants
- 2) Future covenants
General warranty deed, what present covenants?
- 1) grantor has the estate he purports to convey (seisin)
- 2) grantor has the authority to make grant (right to convey)
- 3) grantor warrants there are no encumberances
General warranty deed, what future covenants?
- 1) covenant for quiet enjoyment (not disturbed by 3rd party)
- 2) covenant of warranty (grantor agrees to defend title and to compensate grantee against claim of superior title)
- 3) covenant for future assurances (grantor agrees to act reasonably to perfect title)
subsequent BFP prevails over prior grantee who fails to record
subsequent BFP protected ONLY if he records before the prior grantee
what is a bona fide purchaser?
- a purchaser without notice
- a) actual notice
- b) record or constructive notice - recorded conveyances in the chain of title
- c) inquiry notice - must make reasonable inquiry, charged with whatever knowledge that inquiry would have revealed
what is a mortgage?
- security interest in land. collateral for repayment of a money debt
- on default, lender can foreclose
redemption of mortgage?
- 1) in equity, any time prior to foreclosure sale, mortgagor can redeem property by paying amount due
- 2) statutory - some states allow redemption for a period after foreclosure sale
proceeds of sale in a foreclosure, how divided up?
- 1) expenses of sales, attorney fees, court costs
- 2) principal and accrued interest on foreclosed loan
- 3) any other junior interest in order of priority
- 4) finally, to mortgagor if anything left over
deficiency judgment in foreclosure?
if proceeds cannot satisfy mortgage debt, the mortgagee retains personal cause of action against mortagor for deficiency
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