real property 2

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real property 2
2011-06-26 20:15:25
CA Bar real property

real property lecture notes
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  1. how to terminate an easement?
    • estopple - servient owner materially changed position in reasonable reliance on easement holder's assurance that easement will no longer be enforced.
    • necessity - need for easement ends; but the easement won't end automatically along with necessity if it was created by express grant.
    • destruction of servient land - not by conduct of servient owner.
    • condemnation of servient estate - emninent domain.
    • Release - written & given by easement holder to servient owner.
    • Abandonment - holder shows by physical action that he won't use the easement ever again.
    • Merger Doctrine - easement extinguished when easement and title to servient land vests in same person. (later seperation of title does not change this)
    • Prescription - servient owner may extinguish easement by interferring with it in accordance with element of adverse possession. COAH.
  2. The License
    • priviledge to enter another's land for some delienated purpose.
    • not subject to statute of frauds.
    • freely revocable by licensor, unless estopple applies.
    • oral easement creates freely revocable license.
  3. the covenant
    • a promise to do or not to do something related to land. It is a contractual limitation or promise regarding land.
    • negative covenant - (restrictive covenant) promise to refrain from doing something related to land.
    • affirmative covenant - promise to do something related to land.
  4. when will covenant run with the land?
    • in other words, when is it binding upon successors?
    • A (burdened) ------ B (benifited)
    • A1 ------ B1
    • Q1 - does burden of A's promise to B run from A to A1? (do burden 1st, harder for burden to run than benefits)
    • WITHN
    • Writing - original promise in writing
    • Intent - A and B intented the covenant to run
    • Touch an dconcern the land - promise must effect partie's legal relations as landowners and not just community members at large.
    • Horizontal and Vertical privity - both needed for burden to run. require A & B be in sucession of estate (they were in a grantor grantee, mortgagor mortgagee, landlord tenant relationship)
    • Vertical Privity require non-hostile nexus like contract, devise, descend. only time vertical p absent is if A1 got land through adverse possession.
    • Notice - A1 had notice of promise when she took.
  5. Q2 - does benefit of A's promise to B run from B to B1?
    • WITV
    • Writing
    • Intent
    • Touch and Concern
    • Vertical privity (horizontal privity not needed here)
  6. equitable servitudes
    promise that equity will enforce against successors. it is acompanied by injunctive relief.
  7. to create an equitable servitude that will bind successors
    • writing
    • intent
    • touch and concern
    • notice
    • privity is not necessary to bind successors.
  8. the implied equitable servitude
    • * the general common scheme doctrine
    • under this doctrine, court will imply a reciprocal negative servitude to hold unrestricted lot holder to restrictive covenant.
    • 2 elements of common scheme doctrine -
    • 1. when sales began, A had a general scheme which includes defendant's lot.
    • 2. Defendant had notice of promice contained in prior deeds.
    • 3 types of notice potentially imputed to defendant
    • AIR
    • A - actual notice
    • Inquiry notice - lay of the land (neighborhood conforms to the common restriction)
    • Record notice - in publically recorded docs.
  9. 2 implied promises in every land contract
    • seller promise to provide marketable title at the closing. the standard = title free from reasonable debt, from lawsuits, from threat of litigation. (3 circumstances will render title unmarketable - adversely possessed, encumbrances, zoning violation).
    • seller promise not to make any false statement of material fact. (general disclaimer of liability won't excuse seller from liability from fraud or failure to disclose)
  10. how does deed pass legal title from seller to buyer?
    • LEAD
    • must be lawfully executed and delivered.
    • lawfully executed - in writing, signed by grantor. unambigious description of the land.
    • delivery - grantor physically transfer deed to grantee, but can also be determined by grantor intent (did O ave the present intent to be bound)
    • Recipient's express rejection of the deed - defeats delivery.
  11. the quitclaim deed
    • contains no covenants
    • O not even promising that the has title to convey, but still promises to privide marketable title at the closing.
    • post-closing, O is off the hook
  12. the general warranty deed
    • typically contain all 6 of the following covenants -
    • 1. seisin - O promise he owns estate
    • 2. right to convey - right to transfer, is of requisite sound mind.
    • 3. against encumbrances - no servitudes or liens on estate.
    • 4. for quiet enjoyment - grantee won't be disturbed by 3rd party lawful title claims.
    • 5. warranty - O will defend grantee against any lawful claim of title brought by others.
    • 6. further assurances - O will do what is needed in future to perfect the title (if needed)
  13. the statutory warranty deed
    • 2 promises O makes only on behalf of hims (no promises on behalf of his predecessors in interest)
    • 1. O promise he has not conveyed estate to anyone else.
    • 2. estate free from encumberances made by O.
  14. The Wild Deed Rule
    if a deed entered on the records (A to B), has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. it is incapable of giving record notice of its existence.
  15. once mortgage crated
    what are the parties' rights?
    unless and until foreclosure, debtor-mortgagor has title and right to possess. creditor-mortgagee has lien.
  16. effect of foreclosure on various interests
    • it will terminate interests junior to the mortgage being foreclosed but not affect senior interests. junior leinholders will be paid in descending order with proceeds from sale. But once foreclosure of a superios claim has occurred, junior leinholders can no longer look to blackacre for sarisfaction.
    • those with interests subordinate to foreclosing party are necessary parties to the foreclosing action. failure in include necessary party = in the preservation of that party's claim & his mortgage will stay on the property.
    • foreclosure does not affect any interest senior to the mortgagee being foreclosed. although this means the buyer is not personally liable for the debt, the senior mortgagee can still foreclose against the property.
  17. the rule of destructibility of contigent remainders
    • at common law, a contigent remainder was destroyed if it was still contigent at the time preceeding estate ended.
    • to A for life, and if B has reached 21, to B.
    • A had died, leaving B who is 19.
    • B's contingent remainder dies. O and his heirs would take in fee simple absolute.
  18. rule in shelley's case
    • to A for life, then on A's death, to A's heirs. A is alive.
    • the present and future interest merge to give A a fee simple absolute. (promote alienability)
  19. the doctrine of worthier title
    • AKA - the rule against a remainder in grantor's heirs
    • O, who is alive, conveys to A for life then to O's heirs.
    • because of the doctrine, the contingent remainder in O's heirs is void. A has life estate and O has a reversion. doctrine to promote free transfer of land. (this is a rule of construction)
  20. 3 kinds of vested remainders
    • only remainders can be vested
    • the indefeasibly vested R = holder certain to acquire in the future with no strings attached. (to A for life, remainder to B)
    • vested R subject to complete defeadance = to A for life, remainder to B, but if B dies before 25, to C.
    • vested R subject to open - remainder vested in a group at lest one of whom is qualified to take. (to A for life, then to B's children)
  21. executory interest
    • future interest created in a transferee
    • which is not a remainder
    • which takes effect by either cutting short another interest (shifting) or in the grantor's heirs (springing)
    • Shifting executory interest - to A and his heirs, but if B returns from Canada next year, to B and his heirs.
    • Springing executory interest - to A, if and when he graduates from law school.
  22. 2 bright line rules of common law RAP
    • 1. a gift to a open class that is conditioned on the members surviving to an age beyond 21 violates RAP. (bas as to one bad as to all)
    • 2. many shifting executory interests vilate RAP. an exexutory interest with no limit on the time within which it must vest vilates the RAP. (to A and his heirs so long as land is used for faming, and if not, to Be and his heirs).
  23. the joint tenancy
    • 2 or more owners with right of survivorship
    • alienable - not devisible or descendable
    • to create you need the 4 unities (PITT)
    • Possess the whole - right to
    • Identical shares
    • Time - same taking time
    • Title - same instrument
  24. tenancy by the entirety
    • only for married cople, right of survivorship
    • creditors of only 1 partner cannot touch the tenancy by entirety.
    • neither acting alone can defeat right of survivorship by unilateral transfer to 3rd party.
  25. landlord's duty of the implied covenant of quiet enjoyment
    • breach by wrongful eviction
    • breach by constructive eviction - SING
    • Substantial interference - due to L's act or failure to act (regularly occuring problem like a leaking roof)
    • Notice - T must tell L about the problem & L must fail to act.
    • Go - T must vacate within reasonable time after L fails to fix the problem.
  26. is landlord liable for other tenants?
    • general rule = no
    • but 2 exceptions -
    • 1. L must no permit nusiance on the premises
    • 2. must control common areas.
  27. tenant's entitlement when the implied warranty of habitability is breached
    • M R3
    • M - move out & end the lease
    • R - repair and deduct
    • R - reduce rent (T must put rent in escrow to show good faith)
    • R - remain in possession.
  28. landlord's tort liability
    • common law = caveat lessee
    • 5 most important exceptions to the common law:
    • 1. common areas - L must maintain common areas.
    • 2. Latent defects - L must warn T of hidden defects that L knows or should know about (duty to warn)
    • 3. Assumption of repairs - L who voluntarily makes repairs must do so with reasonable care.
    • 4. Public use rule - L who leases publc space (concert hall, museum) ... is liable for any defect on the premises.
    • 5. Short term lease of furnished dwelling - L liable for any defets which harm T (T no expectation or inclination to repair)
  29. Joint Tenant mortgages his interest
    lien theory?
    title theory?
    • (Majority) lien theory - mortgage will not sever the joint tenancy so long as the joint tenant makes mortgage payments.
    • title theory - mortgage will sever the joint tenancy and create a tenancy in common
  30. 3 kinds of vested remainders
    • indefeasibly vested remainder - (to A for life, remainder to B.) both alive
    • vested remainder subject to complete defeasance - (to A for life, remainder to B, but if B dies before 30, to C).
    • vested remainder subject to open - (to A for life, then to B's children)
  31. how to approach a RAP problem?
    • 1. classify the future interest -
    • 2. what are the conditions that will trigger B's entitlement?
    • 3. find a measuring life.
    • 4. will we know with certainty, within 21 years of the death of our measuring life, if a future interest holder can take?
    • If NO - strike the future interest.
  32. the tenancy for years
    • lease for fixed period of time; know termination date from the start; will terminate without need for notice.
    • A term of years greater than 1 year must be in writing to be enforceble (statute of frauds)
    • an oral term of years in volation of the statute of frauds creates implied periodic tenancy (measure in the way rent is tendered)