Bar 5

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Bar 5
2011-06-25 15:09:17
Real Property

Real Property
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  1. Floating Lien
    • Lien that:
    • 1) Exists on all present real estate holding, AND
    • 2) Floats onto all hereafter acquired real estate holdings.
  2. Variance
    • To obtain an exception to zoning ordinance, proponent must show:
    • 1) Undue hardship not self-imposed, AND
    • 2) Variance won't decrease neighboring property value.
  3. Exactions
    • Amentities that gov't seeks in exchange for permission to build
    • To pass Constitutional scrutiny, exactions must be reasonably related in nature and scope to impact of proposed development.
  4. Nonconforming Use
    • Once lawful, existing use now deemed nonconcorming by a new zoning ordinance
    • Use cannot be eliminated all at once unless just compensation is paid, otherwise, it could be an unconstituional taking.
  5. Fee Simple Defeasible
    • Grantor has Possibility of Reverter, where estate automatically terminates on occurence of stated event and goes back to grantor
    • Eg: "so long as," "during," "while," "until"
  6. Fee Simple Subject to Condition Subsequent
    • Grantor has Right of Re-Entry, which allows grantor to exercise power of termination
    • Eg: "upon condition that," "provided that," "but if," if it happens that"
  7. Fee Simple Subject to Executory Interest
    • 3rd Party has Executory Interest, where estate automatically divested in favor of the 3rd party
    • RAP applies
  8. Rule Against Perpetuities
    • Void future interest if it may vest >21 years after the death of a measuring life.
    • Applies only to:
    • 1) Contingent Remainders
    • 2) Executory Interests
    • 3) Vested Remainders Subject to Open
    • 4) Powers of Appointment
    • 5) Rights of First Refusal
    • If Void, grantor or heirs may have reversion or possibility of reverter.
  9. Caveat Lessee
    • Under CL, L has no duty to make premises safe, except for:
    • 1) Common areas
    • 2) Latent Defects
    • 3) Assumption of repairs
    • 4) Public use
    • 5) Short term lease of Furnished dwelling
  10. Constructive Eviction
    • Form of Breach of the Implied Covenant of Quiet Enjoyment
    • Elements:
    • 1) Substantial Interference
    • 2) Notice
    • 3) Good-Bye; T must vacate within a reasonable time after L fails to fix problem
  11. Landlord's Duties
    • 1) Duty to Deliver Possession
    • 2) Implied Covenant of Quiet Enjoyment
    • 3) Implied Warranty of Inhabitability
  12. Tenant's Duties
    • 1) Liability to 3rd Parties
    • 2) Duty to Repair
    • 3) Duty to pay Rent
  13. Due-on-Sale Clause
    Mortgagor must may off mortgage upon sale, otherwise, property can be foreclosed, mortgage can stay on property, but Mortgagee cannot hold buyer personally liable.
  14. Equity of Redemption
    Universally, borrower has the right to redeem land before the foreclosure sale.
  15. Statutory Remdemption
    In half the states, borrower may redeem for a fixed period after the foreclosure sale.
  16. Voluntary Waste of Natural Resources
    • Life tenant must not consume or exploit natural resources on the prop, UNLESS: (PURGE)
    • 1) Prior Use - land was used in exploitation prior to grant
    • 2) Repairs - consume natural resources for reasonable repairs and maintenance
    • 3) Grant - right to exploit was granted
    • 4) Exploitation - land is suitable only to exploit
  17. Permissive Waste
    Life Tenant must maintain the premises in reasonably good repair.
  18. Rule of Destructability of Contingent Remainders
    At CL, a contingent remainder is destroyed if it was still contingent at the time the preceding estate ended.
  19. Rule in Shelley's Case
    • Historically, the present and future interests merges, creating a free simple absolute.
    • Today, merger creates a life estate.
    • Eg. O conveys "To A for life, the on A's death, to A's heirs." A is alive.
    • Rule of law, not construction.
  20. Notice Jurisdiction
    Subsequent BFP of a prior conveyance prevail over the prior transferee, regardless of whether the BFP records.
  21. Riparian doctrine of Reasonable Use
    • Each riparian owner has reasonable use of the water.
    • Downstream owners cannot enjoin resonable use by an upstream owner UNLESS it substantially interferes with the downstream owner's comparable use.
    • Natural uses (domestic, lmt'd grazing) trump artificial uses (irrigation, manufacturing).
  22. 4 Unities of Joint Tenancy
    • Possession - same rights to enjoyment
    • Interest - same type and duration
    • Time - vested at the same time
    • Title - same instrument
  23. "Marketable" Title
    • Title reasonably free from doubt:
    • 1) No defects in chain of title
    • 2) No mortgages, liens, easements and covenants, unless Buyer waives
    • 2) No existing violations of zoning ordinances
  24. Merger of Land Contract and Deed
    The contract merges with the deed at closing and Seller is no longer liable on the implied contractual warranty of marketabile title
  25. Security Interest in Fixtures
    Prevails over prior recorded mortgage on land as long as as fixture interest is recorded within 20 days after affixing.
  26. Class Gifts
    • 1) Class opens when property is transferred from grantor
    • 2) Class closes when any member of class has present posessory interest
    • 3) Child in gestation at time class closes, child is included in class
  27. Horizontal Privity
    Exists when original covenanting parties shared some interest in the land independant of the covenant.
  28. Vertical Privity
    • Exists when susccessor in interest hold the entire durational interest held by the covenanting party.
    • No vertical privity exists with eg, subleases, life estates
  29. Recipricol Negative Servitudes
    • Negative covenants or equitable servitudes will be implied if:
    • 1) Common Scheme for development, AND
    • 2) Notice of the covenant (Actual, Inquiry, Record)
    • Can only be Negative, not Affirmative
  30. Implied Easements
    • Easements created by implication reqs:
    • 1) Previous use was apparent, AND
    • 2) Parties expected use would continue because it is reasonably necessary to dominant tenemant's use and enjoyment.