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Present Possessory Estates
- Fee Simple Absolute
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Interest
- Life Estate
Fee Simple Absolute
- Vests absolute ownership of potentially infinite duration, fully transferrable (devisable, descendible, alienable).
- Creation: To A and his heirs.
- Future Interest: None.
- Lasts only as long as there are lineal blood descendant's of grantee, passes automatically to grantee's lineal descendants.
- Creation: to A and the heirs of his body
- Future Interest: Reversion (in grantor) or Remainder (3rd party)
Fee Simple Determinable
- Potentially infiite so long as a specified event does not occur.
- Creation: To A so long as (or until...)
- Future Interest: Reverter (held by grantor)
Fee Simple to Condition Subsequent
- Potentially infinite estate so long as condition not breached and thereafter until holder of right of reentry timely exercises power of termination.
- Creation: To A but if x event, grantor reserves right to reenter and retake.
- Future Interest: Right of entry, power of termination (in grantor)
Fee Simple Subject to Executory Interest
- Potentially infinite if stated contingency doesn't occur.
- Creation: to A, but if X, then to B
- Future Interest: Executory interest in (3rd party)
Validity of zoning changes
Cities and counties, through the state, have the power to regulate the use of land through police power. Zoning changes may not be arbitrary and capricious.
Preexisting Uses of Rezoned Land
- When zones change uses that were preexisting, the previous legal uses are still valid after the change. However, the owner may not alter, enlarge, or extend the nonconforming use.
- Intensification is allowed if not banned by local government action, will have no significant effect on the neighborhood, and intensification has always been intended.
- The right to nonconforming use may be lost if abandoned for some time.
a grant to violate zoning regulation. To obtain, landowner must prove the change in regulation has caused a unique hardship or difficulty and that variance will not cause unreasonable harm to neighboring land. The granting of variance is quasi-judicial, so procedural due process applie.
Rezoning and spot zoning
- Grants relief to particular parties showing a change in conditions that necessitates a rezone.
- Spot zoning refers to the arbitrary and unreasonable zoning action by which a smaller area is specifically zoned for use inconsistent with surrounding classification. Must show adequate public advantage to support the discriminatory action.
Special Use Permit
Granted pursuant to existing zoning ordinance, fur uses that may generate special problems. May be issued with conditions only if directly related to proposed use, reasonable, not illegal or inconsistent with zoning ordinance, and reasonable calculated to achieve legitimate zoning objective.
Substantial, unreasonable interference with another private individual's use or enjoyment of property.
Act that unreasonably interferes with health, safety, or property rights of community. Recovery available only if private party has suffered some unique damages not suffered by public at large.
Profit a prendre
- Nonpossessory interest in land, entitling holder to enter the land of another to remove natural resources. Requires a writing signed by parties to be bound with words indicating intent to create a profit and giving a full legal description of the land.
- Generally constred as nonexclusive. If exclusive, grantee takes sole entitlement to resources, even to exclusion of owner of servient estate.
- A person is liable for interfering or committing waste on a profit a prendre.
Valid Term Tenancy
A term tenancy is one that is to contiune for a fixed period of time by agreement of the parties. Must in in writing if longer than a year to satisfy SOF.
Delivery of personal property by bailor to bailee upon express or implied contract. Bailee has duty to use reasonable care in preserving goods bailed.
Chattel becomes a fixture if the intent of the annexor was to permanently improve the real estate. Fixtures pass with the land when conveyed, leased, or mortgaged.
Lawfully executed Deed
- Must be in writing and contain the IDs of the parties, complete legal description of the land, words indicating title to pass, and signature of grantee.
- Does not require date, price, or consideration.
- Written promise to do something or not do something on land.
- Must be in writing, given for consideration, and acknowledged.
- Enforceable if touches and concerns the land, intended to run with land, successor had notice, privity of estate.
- Covenant enforced in equity, reuslting in injunction or specific performance.
- May be implied by common scheme (common scheme exists, notice)
- Defense: unclean hands, acquiescence, estoppel, changed conditions
- Termation: merger, written release, condemnation
Real Estate Sales Contract
Must comply with SOF. Requires writing containing IDs of parties, ID of land, signature of granting party, words of sale, price, and terms.
Risk of Loss During Conveyance
- Under doctrine of equitable conversion (not followed in WA), if property destroyed before closing, buyer deemed owner, and risk on owner.
- In WA, seller bears risk until closing, unless contract provides otherwise.
Non-possessory right to use the land of another for a specific purpose.
holder entitled to enter and so something on servient land
holder entitled to prevent servient landowner from doing something (restrictive covenant)
Benefits holder in physical use or enjoyment of property. Dominant land benefitted by easement that runs to it, servient land burdened by easement that runs across it.
Easement in Gross
Does not benefit any specific land, can't be transferred unless for commercial purposes.
Transferability of Easements
- Transfer of dominant land automatically transfers easements (even if not in deed).
- Transfer of servient land transfers subject to easement unless BFP w/o notice (knowledge, visible, public record)
How to create an easement (PING!)
- Implied Grant
Easement by Prescription (Formation & blocking)
Based on mere use, not possession. Like AP, must be continuous, open & notorious, nonpermissive. May be established even when oral grant given.
Blocked by physical blocking, give license, action for injunction
Easement by Implied Grant
Easement from existing use implied if, prior to division, use existed on servient land that is reasonably necessary for enjoyment of dominant land. Must be apparent and continuous.
Negative easements never implied.
Easement by Necessity
Must show common ownership and land is landlocked. Limited to reasonable use and terminates when necessity ceases.
Easement by Grant/Reservation
Easement must be in writing, signed by holder of servient land.
Writing must include scope, duration, location, and complete legal description of land.
Owner may convey title and reserve use for specific purpose (only for grantor).
Termination of Easements (MERPBAN)
- Merger: when servient and dominant land titles in same hands
- Estoppel: reasonable reliance on oral termination
- Release: terminated by written deed
- Prescription: illegally blocked use by servient for 10 years (open, notorious, continuous)
- BFP: If easement and in writing, but not recorded, BFP w/o notice of easement protected
- Abandonment: long period of non-use plus additional evidence of intent to discontinue use
- Necessity: when necessity ends
oral permission to be on land, revocable at will.
Non-possessory interest in land entitling holder to enter servient land and extract natural resources.
Follows rules of easements. Appurtenant follows land, in gross may be assigned.
- trespasser may obtain title to property of another if not ejected by owner within statutory period (10 years, or 7 by color of title). Use must be OCEAN:
- Open & Notorious: sufficient to put actual owner on notice
- Continuous: no gaps, appropriate for nature of prop.
- Exclusive: owner not on land, no competing AP
- Actual: use typical owner would make
- Non-permissive: hostile
Tacking in AP
Continuous possession need not be by same person. AP can tack time to that of predecessor AP, as long as there is privity between the APers.
Disabilities in AP
SOL will not run against true owner who has disability at time of inception (infancy, insanity, imprisonment).
Remedies for Nusiance
Injunction and damages. Court will weigh gravity of harm against utility of D's conduct.
Defenses against Nusiance Claim
- Coming to the nusiance (N in operation before P moved. Harassment suit?)
- Compliance with zoning
- WA Right to Farm Act
WA Right to Farm Act
exempts farming and foresting activities in urbanizing areas from nusiance claims if consistent with good agricultural practices, existed prior to urbanization, and not have substantial effect on public health, safety
- Estate that is not terminable at any fixed time but cannot last longer than the life of lives of 1 or more persons. Transferable if measuring life alive.
- Creation: "To A for life" or "To A for life of B"
- Future Interest: reversion (grantor), remainder (3rd party)
Life Tenant Duties
Must not commit waste or harm parties w/ future interests.
Intentional (Voluntary) Waste
overt conduct that cuases a decrease in value, like intentionally damaging land or exploiting resources
Permissive Waste (Neglect)
land falls into disrepair by failing to reasonably protect (weather, taxes)
What is not waste
- Using resources according to prior/exclusive purpose
- waste permitted by grantor
- resources used to maintain, make reasonable repairs
- timber (if land's only use)
- use of open mines
An estate that does not entitle owner to immediate possession byt which may or will give owner possession in future
Future Interests Created by Grantor
- Possibility of reverter: follows FSD
- Right of entry: follows FSSCS
- Reversion: follws any other interest given by grantor that is of lesser duration that what she owns.
Shifting Executory Interest
always follows defeasible fee and cuts short someone other than grantor
Springing Executory Interest
Cuts short interest of grantor
- 1. created at same time and by same instrument as prior estate
- 2. always accompany a prior estate of known fixed duration
- 3. never cuts short prior estate
- 4. won't follow built-in time gap between prior estate and future interest
Rule against remainder in grantee's heirs: Rule converted what would be a contingent remainder in heirs to remainder in ancestor. Abolished in 1995.
"To A and heirs of his body..."
Doctrine of Worthier Title
Remainder limited to grantor's heirs is invalid and and grantor retains reversion in property. Abolished in 1995.
Rule Against Perpetuities
- A future interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after death of measuring life.
- If it does not vest, strike out the offending clause and determine interests that remain
RAP: gifts between charities
Doesn't violate RAP, regardless
RAP: Wait and See Rule
If future interest beneficial interest created by trust, validity tested by whether it actually vests or fails to vest within 150 years of creation.
Rule Against Restraints on Alienation
Generally, restrictions on transferability of FS are void
Types of Restraints
- Disabling: "To A but A shall have no power to transfer without consent"
- Forfeiture: "To A but if A attempts to transfer without consent, it automatically reverts"
- Promissory: "To A but A promises and convenants not to transfer w/o consent"
Valid Restraints on Alienation
- forfeiture and promissory on life estate
- forfeiture on transfer of future interest (while future interest)
- restraint on partition by co-tenant
- right of first refusal
Tenants in Common
Concurrent estate with no right of survivorship. Each T owns an individual part and each has right to possession of the whole. Each interest in descendible, devisable, and alienable. Presumed, unless stated intent is JT.
Joint Tenancy w/ Right of Survivorship
- Concurrent estate with right of survivorship. Both parties have right to possess the whole. If JT dies, that share automatically passes to surviving JTs. JT's interest is alienable during lifetime, but not devisable or descenible.
- Creations requires 4 unities (time, title, interest, possession)
- Severed: sale, partition, mortgage
Rights and Duties of Co-Tenants (TIC & JT)
- Possession of the whole
- Rent for exclusive possession
- Rent from 3rd parties
- Carrying costs (each responsible for share of taxes...)
- Repairs contribution
- No waste
- Fiduciary duties
Lease gives present possessory interest to T. L holds rent and reversion rights.
Created by writing and acknowledgement if lease more than 1 year (month to month otherwise). Recording Act applies if more than 2 years.
- Destruction (in commercial, if lease space destroyed termination OK. If entire parcel leased and destroyed, no termination. T may not force L to rebuild unless L destroys)
Fixed Term Lease
estate that continues for fixed period of time and arises by agreement of the parties. Terminates automatically without need for notice of termination.
In writing if greater than 1 year.
- Estate that continues for successive intervals and arises by agreement of parties. May rise by implication if no term mentioned.
- Terminated by delivered writing (20L 30T commercial, 20/20 residential). Must state effective date of termination.
Tenancy at will
- Immediately terminable by notice given by T/L with no fixed period of time. Only reasonable demand to quit premises required.
- Parties must explicitly agree to at-will or will be implied periodic.
Tenancy at sufferance
Created when T wrongfully holds over past expiration of lease. L may treat T's right as expired and bring action of unlawful detainer or as periodic on same terms as original lease.
Duty to Deliver Possession (LT)
L required to put T in actual physical possession of premises
Implied Convenant of Quiet Enjoyment
- L is required to allow T to use land without interruption.
- Partial actual eviction: L may breach by interfering with T's enjoyment of part of premises. No rent required until restored.
- Constructive eviction: L may breach if conditions so deplorable, fault of L, L has notice, T actually moves out.
Implied Warranty of Habitability
- L required to maintain property in habitable condition. Standard of performance drawn from local housing code
- 24 hours: hold/cold water, electricity, hazards
- 72 hours: fridge, oven, major plumbing
- 10 days: everything else
Remedies for Warranty of Habitability
- Damages for breach
- Abatement of rent
- Repair and deduct
- Terminate and move
LL right of entry
right to enter leased property w/ 2 day notice unless emergency. Trespass otherwise.
Self Help Eviction
- Residential: not allowed, L liable for forcible entry
- Commerical: allowed if proper notice given
Presumed retaliatory if within 90 days of report. T must be current on rent for this presumption to rise.
L must state terms and conditions governing deposit in written lease and provide checklist of existing conditions of premises to be signed and dated, place funds in escrow, return within 14 days of lease expiration (or give written explanation regarding withholding).
Failure results in liability for full deposit. and atty fees. Doubled if withheld willfully.
Abolished in residential (now $50/day) If residential T abandons and leaves goods, L can hold for 45 days and attempt to notify, then sell.
In commercial, L may assert lien on goods and delinquent rent. L must bring action to foreclose lien w/i 2 months of T's rent default. Lien has priority over all PMSIs
LL liability for PI
L liable for concealed dangers that L knows or should know of, and has duty to disclose. L has duty to exercise reasonable care over common areas.
- If covenant to repair, and fails to, L liable.
- L liable for negligent attempts at repair.
T must return premises in same nature and character as received. May not make substantial alterations to leased structures.
Covenant Not to Use for Illegal Purposes
WRLTA bars drug related and imminently hazardous behavior.
L must bring unlawful detainer action to remove defaulted T, requires 10 day notice.
- Complete transfer of entire remaining lease term.
- Assignee stands in shoes of original T. Owes rent directly to L and is liable for all covenants running with land.
Original T remains liable in privity of K. If assignee disappears, L may hold T secondarily liable.
- T retains part of remaining term of lease.
- Original T remains liable.
- In absence of express restriction, T may freely transfer leasehold interest in whole or part.
- L consent only necessary if required by clause in lease.
- L may withhold consent for T2 poor credit, T2 biz incompatible with biz of other T, T2 refuses rent hike
Assignment by Landlord
- T must recognize and pay rent to L2. All other covenants run.
- L2 liable for all L1's lease covenants that touch and concern land.
- L2 not required to refund security deposit unless lease provides it was for repairs to damages proeprty. Otherwise, doesnt T/C or burden L2.
once movable chattel that has been annexed to real property and becomes part of realty. Passes with land when conveyed, leased, mortgaged. Intent of annexor controls.
Fixtures installed by T can be removed by T if done before termination and T repairs damage from removal.
Land Sale Contract
Must be in writing, ID parties, description of land, mutual promises, price, signatures.
Part performance: court may enforce oral K if proof of all essential terms of K, acts by party can be explained by reference to agreement and at least 2 of -- purchaser takes possession, pays price, or makes substantial improvements to land.
Risk of Loss for Land Sale
Purchaser does not accept risk (WA rejects equitable conversion). Parties allocate risk and at fault party bears loss.
Marketable Title and breach
- Every land sale K has implied warranty that at closing, seller will provide marketable title.
- Breaches: defect in chain of title, title acquired by AP (unless quiet title ruling), title less than FSA, encroachments, encumberances.
Buyer may waive any/all breaches.
Remedies for Unmarketable Title
Notice to seller and time to cure defects required. If failure to cure, buyer may rescind K, seek damages, get specific performance with abatement of purchase price.
Time of Performance for Land sale K
Presumed that time is not of essence. Reasonable time after closing OK.
- Deed is effective only when delivered (manually, escrow, presumed under other circumstances)
- Delivery fails if executed by not delivered in lifetime.
- Delivery cannot be cancelled. Title passes to grantee upon delivery, unless refusing to accept.
Covenants of Title (all 6 in General Warranty)
- Seisin: I own the land
- Right to convey: right to transfer
- Against Encumbrances:
- Warranty: defend against claims of title
- Quiet enjoyment: no better title
- Further assurances: documents to perfect title given
release of whatever interest grantor has
In WA, subsequent BFP prevails over prior grantee if she records before prior grantee. Otherwise first in time, first in right.
Bone Fide Purchaser
Purchaser who took without notice of prior instrument and paid valuable consideration. Includes those who buy fee or lesser state, and mortgagees.
Does not include heirs and devisees.
- Actual: knowledge gained from any source
- Inquiry: would have been revealed through reasonable inquiry
- Record: grantee held to know about recorded documents in chain of title.
Those taking from BFP stand in BFP shoes. Transfer will prevail against any interest that BFP would win, even if transferee had actual knowledge of prior unrecorded interest.
Effect of Recordation
Gives notice, but not necessary for valid conveyance. Does not validate invalid deed, does not protect against AP.
Debt and voluntary transfer of security interest in debtor's land to secure debt. Created by deed, must be foreclosed by judicial sale.
Deed of Trust
Debtor gives deed of trust to 3rd party trustee who is usually connected with beneficiary. In default, trustee will foreclose debt of trust be either judicial or non-judicial sale.
Power of sale clause
Allows trustee to advertise, give appointment notice, conduct sale. Take min of 190 days from date of default
Debtor is purchaser of land who signs contract with vendor, agreeing to make regular installment payments until full purchase price is paid.
Absolute Deed as Mortgage
where borrowers give lender absolute deed to real estate for loan. Quick cash scheme. CCE of loan security, court will recharacterize as mortgage.
In event of default, MR has choice of foreclosing mortgage or suing on the note. Foreclosure terminates MR's interest in property and property sold at auction to highest bidder, sale proceeds to satisfy debt. If not enough, ME may obtain deficienct judgment for balance.
MR's right to redeem- can pay off debt and redeem land up to moment foreclosure sale begins. Statutory right to redemption after judicial foreclosure within 12 months or 8 if property is nonagricultural.
Purchase money mortgages presumed to have top priority.
Constitutional Authority For Zoning
exercise of police power to regulate health, safety, morals and general welfare
GMA requires largest counties to have comprehensive plan to provide guidelines of present and future development, does not determine legal use of any parcel, not used as basis for granting/denying building permit
Making ordinances in general conformance with plan, but not strictly governed. Final decision made by governing body, may not coincide with recommendations of planning committee.
height, use, bulk
due to changes over time. Disfavored position, subject to restrictions. Repairs sometimes prohibited except for safety. Owner cannot enlarge, change, extend nonconforming use. Intensification sometimes OK. If abandoned, cannot be restarted.
Application for building permit has vested right to use property under zoning regs in effect at time of submission, not date permit issued.
Estopell in Zoning
Disfavored. Statement by gov. official with reasonable reliance and resulting injury if party able to repudiate.
Special Use Permit
required for certain sensitive uses which do not violate ordinance byt are not desireable at all locations/circumstances. PDP applies. Conditions must be directly related to use, reasonable, not illegal or inconsistent with zoning, reasonably calculated to achieve legit zoning objective.
grant of permission to violate zoning ord in some way. Requires unique circumstances, undue hardship, or practical difficulties, and grant not injurious to public.
when particular parties granted change in zoning classification. Must be change in conditions to justify, consistent with plan, is quasi-judicial. Zoning amendment is area-wide and treated as legislative.
arbitrary zoning action where small area specifically zoned for inconsistent use with surrounding classification. Must be adequate public advantage to justify discriminatory benefits awarded owner and size relative.
Planned Unit Developments
Dev with mixture density and use. Modification of zoning laws allowed in return for providing certain amenities. Floating zone that can only be fixed in place by authorized legislative action.
when application for rezone granted with certain conditions. Must be directly related to public need, performance will mitigate public burden of meeting needs, requires showing of changed conditions.
- Loretto: permanent physical occupation a taking
- Lucas: regulation so severe that no remaining economic value a taking
- Penn Central: balance economic impact of reg, landowners reasonable expectations when acquiring land, and character of government action
Other Constitutional Issues re Zoning
Equal protection, SPD, PDP, appearance of fairness
requires prep of environmental impact statement whenever major action taking that significantly effect environment.
Shoreline Management Act
requires permit for any substantial development on shoreline (200 ft of high water mark)
Growth Management Act
requires city to adopt plan, regulations to protection agriculture and forest land, eliminate urban sprawl
Judicial Review of Land use decisions
- Standing: residents of affected area
- Exhaustion of remedies
- Scope of review
accidentally and involunarily parted with and owner does know where to find it. Finder entitled to possession except against true owner. Landowner may be awarded possession if: finder trespassing, place of finding highly private, finder is employee...
Intentionally placed and thereafter forgotten.
owner intends to give up title and possession.
Duty of finder or landowner
quasi-bailee, has duty to care and reasonable effort to find TO.
addition to value or property by expenditure of labor or addition of new materials. TO retains title, finder may seek conversion.
Adverse Possession of Property
Intent, delivery, acceptance
Legal possession by bailee of property owned by bailor. Bailor retains title.
- If for benefit of OR-->slight diligence
- for EE--> great diligence
- Mutual--> ordinary care