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Once the buyer accept the deed, the terms of the real estate sales K are superseded by those of the deed, at last as far as they relate to the real property transferred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
1. Seisen = own it
2. Right to convey = right to transfer
3. Against encumbrances = no 3rd party interests that affect
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
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
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
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
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
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
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
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
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
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
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
Ok for OHA to determine whether to evict
No innocent owner defense
Can be used as retaliation, under guise of HUD
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