The flashcards below were created by user
on FreezingBlue Flashcards.
Memo sufficient for a parole contract when
- 1. In writing,
- 2. Signed by party whom performance is demanded,
- 3. Contains a description,
- 4.essential element of the contract.
Comminty Property states
Louisiana, Texas, New Mexico, Arizona, Nevada, California,Washington, Idaho, Wisconsin, and sometimes Alaska
- Condos not the same as real estate.
- Damages measurable = no SP
- Must have actual possession for a piece of property that you are under K to buy.
- English rule - Damages recoverable by non-Breaching party only if seller willfully refuses to convey or is fraud.
- American rule -Damages recoverable by non-Breaching party regardless
Time between sale and taking possession
When a you choose to move in with damages
- Could have paid less
- Partian specific performance
Installment land K
Title does not shift until buyer pays in full. Miss even one payment you forfeit all you equity.
State legislatures act to protect buyers by allowing buyer to recover equity in K.
- owner’s claims to a parcel of land is free, or
- virtually free, form the claims of others.
title sufficient to obtain insurance. If not marketable but insurable cannot be used by buyer to cancel K
Transfer of title
- Grantors Intent to transfer
- Must be out of grantors control in 3rd party with privity
- Actual physical control not necessary by grantee
Doctrine of merger
Once the buyer accept the deed, the terms of the real estate sales K are superseded by those of the deed, at last as far as they relate to the real property transferred
Covenants of title
- Present covenant
- 1. Seisen = own it
- 2. Right to convey = right to transfer
- 3. Against encumbrances = no 3rd party interests that affect
- 4. Warranty
- 5. Quit enjoyment
- 6. Further assurances
Brown v. Lober
- present and future Covenant
- The mere existence of a bully trying to take your stuff is not enough for a breach of covenants of title for present or future.
Special warranty deeds
Warrant only act of grantor and not predecessors
Quit claim deeds
- Transfers interest, but does not mean it's quilty
- No warranty is presumed to be a quit claim
- Race= who ever records first wins
- Notice = Last to purchase without notice wins
- Race-notice = buy without notice and record first wins
- This rule shelters a bona fide purchaser from a good faith purchasers that has encumbrances ona title that happened from the purchase of one bone fide purchaser to another.
- Who did not know of an problems with the title.
Exceptions to shelter rule
- 1. When a good faith purchaser obtained the
- property form a grantor who had notice of outstanding interest in property
- 2.If the property is reconvened from a good faith purchaser to a person who is guilty of violating a trust or duty with respect to the property
- When you buy a house with a mortgage your new lien moves into priority position of former leinholder - when you meet prerequisites.
- Cant for sure know of other liens and claim equitable subrogation
helps lay people get money from homeowners who fail to pay
- deed subject to revocation by the owner, which conveyances and interest in real property which
- contain language that the conveyance is to be effective upon the death of the owner and which may be in substantially the form described.
- Cant get with medicaid
- Bank account must be in separate account with money to invest in new home.
- Protected for 2 years up to $60K, must file in this window and money stays exempt till bankruptcy finishes.
- bars litigation when a potential plaintiff has slept on his rights."
- "Laches . . . is not a mere matter of time, but is principally a question of the inequity of permitting the claim to be enforced -- an inequity founded on some change in the conditions or relations of the property or the parties involved."
Fidelity Bank v. river city
A mortgage foreclosure merges all subsequent lien on the land
the contractual knows was never tied, and such paper or instrument is not only voidable, but actually void.
Fraud in Factum
- Nature of document
- Lied about what the document actually was
- = Void
Fraud and misrepresentation
Lied about what document would do = voidable
- A bona fide purchaser of an inters in property takes that interest free and clear from all claims except those which he has notice.
- Must be in Torrens to be recorded
Marketable title Act
Marketable title act clears up any fraud in the title after 30 years.
Rule of reason = RPP standard for easements change overtime. Reasonable use grows some, but not if the easement expands.
Easements on Dominant property
- Even with dominant property, the dominant property owner must maintain the easement they enjoy.
- No unreasonable damage or interfere with serviant estates enjoyment
Scrull v. Rapasardi
- Cuz they let him use explosives once he gets to use them again to maintain easement = presumed consent is forever and if P don’t like
- the explosives they can do it themselves.
Easement in Gross
- A utility companies entitle to place a power line on privately owned land.
- Only benefits right holder usually monetarily.
- If you create in joint effort you both have to consent to sell these rights - like the swimming & fishing case
- Non use
- Act to abandon
Unity of title
An easement is extinguish when title to the easement and title to the servient tenement become vested in the same person.
Estoppel with easement
An easement may be extinguished if the serviant owner materially acts in reasonable reliance on the easement holder’s assurance that the easement will not longer be enforced.
Condemnation of the servient estate
- A government taking of the servient land by
- eminent domain served to extinguish the easement
CO Solar Easement
- Cant get prescriptive easement
- Must be in writing with same requirements as conveyce and must be recorded
Custom is the rule case
- Custom is defined as such a usage as by
- common consent and uniform practice has become law of the place or of the subject matter which it relates
Ried v. Architechs board
- esthetic condition
- alone are insufficient to support the invocation of the police power, although
- if a regulation finds a reasonable justifications in serving a generally
- recognized ground for eh exercise of that power, the fact that esthetic
- consideration play a part in its adoption does not affect its validity.
Reciprocal negative easements
- Need to or more lots with restrictions
- Affected by changes and conditions
- Looking around the neighborhood is notice
- Benefits and obligations run with the land
- Never retroactive
- Common owner originally and then restrictions can be way down the line
El Di v. Bethany beach
- Restrictive conveyance no longer enforceable. Brown bagging and ordinance allowing it shows the reason for restrictive conveyance is no
- longer needed. .
=both have simultainous interests.
Easements have dominant and serviant owners;
you can have a convenant to an easement.Landlord tenant have privity during lease
Violations of covenants
- If you let the violation go on you may
- eventually lose it.
- habitually and substantially violated
- Must be material to the overall purpose of covenant
Not allowed on public policy grounds
Common Interest Communities
- Real estate development or neighborhoods with individual units are burdened by a servitude by payments for maintenance or payments to an
- association that maintains or enforces other servitudes burdening property.
Developer creates restrictions
= notice because you an get copy of restrictions
- C is bound by covenant of A and B
- Conveyance runs with the land
- Intent to run with the land
- Just cuz you rezone does not change conveyance
Right to use road established by estoppel
- openly peaceably, continuously, and under claim
- of right adverse to the owner of the soil and with his knowledge and acquiescence, use a way over the lands of another for as much as 15 years.
Profits a prendre
- Taking something off the land
- Hunting rights = OK, not against policy
- Made money off of it
- Zoning Constituional, can be challenged as applied
- Spot not
- What is ok in most restrictive is ok in least
- Legislative police powers = courts stay out
- Applies to land not use
- How to avoid the potential hardships caused to
- individual property owners by the immediate and literal application of zoning ordinance to a particular piece of property. Only applies to one piece of property
- An unreasonable interference with another use or enjoyment of land.
- Unreasonable is a subjective term and the formally with the gravity of the harmed
- against the utility of use.
- 1. Look at character of harm
- 2. Social value of the use
- 3. The suitability of that use to the character of the area.
- Pig in parlor instead of barnyard
Per se nuisance
- Wrongful because of circumstances of where it is located
- Pig example
- DA prosecutes
- Interferes with rights of the public
Invasion of interest in the enjoyment of the land
The inconvenience must not be fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinary RPP.
Rule of equity,
when you can get money instead of injunction, the court favors money
Miller v. Carnation
- Damages for loss of enjoyment and discomfort are not duplicative. Annoyance and discomfort are absolute and can be calculated
- per year and not per month.
- Interferes with enjoyment of land
- With flights it has to be so close it almost touches your land and must be on going
Board v. Vail
- Evidence OK; you can present evidence showing the highest possible value.
- Valuation not ok; cant carve out hypothetical building sites and then place value evidence other land of similar value.
- Can’t add value of public improvement into condemnation by comparing the value of other land next to an exit.
Condemnation and public purpose
- So long as legitimate and not irruption by legislature it is OK
- Must pass public use clause
- = benefited public
Public use doctrine
- Clear and significant
- Private interest merely incidental
Traffic and highway access
- Ingrees = in , Egress = out Both of these require compensation
- No right to free flow of traffic
- If Government substantially impedes flow then compensation
- Permenant physical occupation, even if small
- Look at investment backed expectation for compensation
- Essential nexus
- Rough proportionality
Taking must have same purpose as plan
Land use regulation
- Not taking if
- substantially advances a legitimate state interest
- does not deny an owner economically viable use of his land.
- the degree of harm to public land and resources or adjacent private property, posed by the claimants proposed activities,
- the social value of the claimants activities and their suitability to the locality
- the relative ease with which the alleged harm can be avoided
Nature and extent of impact
Factors to consider in taking
- Interferes with Reasonable investment backed expectations
- Character of government action
- Cant burden property by imposition of repetitive and unfair procedures
- has to have a good reason
- Magitude of impact and interference with property interests
- Accretion = gradual and you get it
- Avulsion = Sudden and the government gets it
- have to share with others
- Cant harm next one in the line
- Absolute owner rule on water wells
- Captured water can be sold
- Different then surface water but restrictions apply to aquifers
- First in the line can use as much as allowed,
- But just cuz you have a stream don't mean you have rights to it.
- Own all above and below like mineral
- Don't apply to aquifers
- Top owners can take it all
- has to return to river
- You only get one shot to use and you have to send the rest back
- Cant sell your extra = no speculating in water
- Storage not a beneficial use
Adverse possession in water
- Cant take more then owner has
- Have to take it all
- hostile to the owner and under claim of right - notoriously, adversely, exclusively, and continuously made actual beneficial consumptive use
Water law and fed
- Different on fed and indian land
Oil and gas
- Right to drill does not equal the right to destroy. Land owner still retains all surface rights including use, but must allow reasonable
- use to do the drilling. If the oil company goes beyond reasonable use it is trespass, but the land owner has to wait for them to mess up his land.
- Buyer be aware
- Landlord has not duty to make sure land is suitable for tenants purpose
- Cant conceal
If leasee breaches
- landlord must take affirmative steps to relet in
- order to mitigate damages and you cant just sit on your hands and expect the breaching party to pay for the entire period they leased
- Must have acceptance and surrender of premises
Privity of estate
- The property you are both on
- Tenant; then
Privity of K
- None on sublease
- Only to person who leased to them = tenant
- Tenant is on the hook for the money to landlord
- Has to be attributable to land
- Substantially affects premises
- Must move out right away
Types of tenancies
- 1. Estate for years or term for years – it beginsand ends on a specific date: Most common and terminates automatically
- 2. Periodical tenancy- month to month lease
- 3. Tenancies at will – can be terminated at any point by either the landlord or the tenant
- 4. Tenancy at sufferance – occurs when tenant
- refuses to relinquish possession of the property when the lease expires = HOLD
- OVER TENANT
Hold over tenants
- If you accept check lease continues with same terms
- You must treat tenant as trespasser if you want them out
Warranty of habitability and fitness
- seriousness of the claimed defect and length of time for which it persists
- Times and and so do rule
- Housing regulation set the standard
- No general duty to provide security = subject to normal torts type duty issues and exception
- Not Ok on policy grounds
- Does not apply to commercial tenants, but they have other remedies
Flower shop case
Can contract out of negligence, just not gross negligence
a discriminatory impact and is sufficient to establish a violation.
Dept v. Rucker
- Strict liability
- Ok for OHA to determine whether to evict
- No innocent owner defense
- Can be used as retaliation, under guise of HUD
- Strict liablity
- No innocent owner
- Indicia of owner ship can protect security interest
- must determine why they have indicia
If competent, mutual assent and cohabitation then it applies even if not married
AE formula 1
pe + A1+A2 +B+W=AE X by number of year percentage
AE formula 2
- C = D+B+ 2 X % X W
- Then we minus this by first formula to see what we need to take out
AE formula 3
- T1 = x(pe-D + A1 ) = (add in what is left from 1 and 2 of the formla and really we solve for this) more like
- (1-2)=x(pe-D + A1 )
- T1 Is whatever 1 minus to is
- Strings attached to these
- 2 year period
- Gifts with no strings
- If over $10K it goes back in automatically
- Husband half of Joint tenancy comes into
- Life insurance payable to her
- All she owns at time of death
- Her half of Joint tenancy
- What her A1 and A2 are