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REAL PROPERTY > Everything Included > Flashcards

Everything Included Flashcards

1
Q

What is an Equitable Servitude?

A

A non-possessory interest in land that allows the owner of the benefitted property to use or restrict the use of the burdened property.

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2
Q

Equitable Servitude v. Real Covenant

A

Equitable servitudes differ from covenants in that: They are enforceable by injunction, while a real covenant is remedied by money damages. No horizontal or vertical privity is required for a servitude to run with the land.

Servitudes are ownership interests in land, while real covenants are promises.

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3
Q

What is an Appurtenance?

A

A right, benefit, privilege, or improvement that allows for the full use and enjoyment of land that belongs to the owner of a dominant estate and may burden a servient estate. In a real estate context, this usually is seen in the form of an easement appurtenant.

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4
Q

What is the Land & Real Estate & Bundle of Rights (Ownership Rights)?

A

Comes with five basic property rights:

Right of Possession,
Right of Control,
Right of Exclusion,
Right of Enjoyment and,
Right of Disposition

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5
Q

A Title to Real Property is?

A

Right to Ownership of the Land, evidenced of ownership by a deed-the actual document by which a Title is transfered.

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6
Q

What are the Economic Characteristics of Real Estate?

A

Scarcity,
Improvements,
Performance of Investment,
Location,
Uniqueness,
Immobility and,
Indestructibility

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7
Q

What are the physical charcteristics of Real Estate?

A

Immobility
Indestructibility
Uniquenes - Hetero/non-homogeneity

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8
Q

What is Zoning & from where is the power derived?

A

Zoning is Governmental Regulation & Control of Land use.

It is derived from City Police Powers

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9
Q

What type of Zoning Regulations are Invalid (Void)?

A

Discriminatory against suspected Class (must show discriminatory purpose, not just effect),

Too Restrictive

Unauthorized of in excess of authority

Not rationally released to the general public’s welfare

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10
Q

Who has Standing to sue for waste?

A

The holder of a Remainder Interest (Vested or Contingent) as well as a Reversion Interest.

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11
Q

What are the 2 types of Security Interests?

A

1- Deed of Trust
2- Mortgages

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12
Q

Is a Deed of Trust an Alternative to a Mortgage?

A

Yes, Debtors borrows money from a lender & then deeds the property to a 3rd party as collateral - once debt paid, 3rd party releases the deed back to debtor.

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13
Q

What is a Mortgage?

A

A Security Interest in Real Property B/T a Borrower & lender that secures the performance of an obligation (typically payment of a Loan.

In a mortgage, 2 parties are involved - Borrower/Debtor & Lender

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14
Q

What is a Deed of Trust?

A

In a deed of trust, 3 parties are involved:
the borrower,
the lender, and
the trustee.

The borrower is the Trustor, the lender is the Beneficiary, and the Trustee holds the title until the debt is paid off.

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15
Q

What is an Equitable Mortgage?

A

The Lender secures the Mortgage by Taking Possession of all the original title documents.

The Lender has the right to sell the property, foreclose on it & appoint a Receiver if the Borrower does not pay.

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16
Q

Mortgagor

A

Borrower/Debtor

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17
Q

Mortgagee

A

Lendor/Creditor

18
Q

Mortgage vs. Note

A

Mortgage represents interest in the land;

A note represents the Debt of the Mortgagor

19
Q

Who has the title & Right to the Property Interest?

A

Lien Theory Jurisdiction (Majority View) - Mortgagor Borrower

In a LIen Theory Jurisdiction such as New York, a mortgagor has the right to retain possession of its property until conveyance, and the lender therefore has no right to possession of the mortgaged property and the incidents thereof until foreclosure. However, after a default, the mortgagor may relinquish its possession to the lender.

Title Theory Jurisdiction (Minority View) - Mortgagee

A Title Theory states the lender holds title to the property, as security only, until all loan payments have been made. During that time the borrower has the right to possession of the property, and the lender delivers the deed back to the borrower only after the loan obligation has been satisfied.

20
Q

Negative Easements are created only by?

A

Openly expression & must be signed.

21
Q

An Easement Appurtenant benefits?

A

A Specific Parcel of Land (the Dominant Estate) while burdening another parcel of land (the Servient Estate). It attaches to the land & not to a person.

22
Q

When does a Zoning Regulation Constitute a Regulatory Taking?

A

A regulatory taking occurs when a government regulation limits the use of private property to such a degree that it effectively deprives the property of any value.

23
Q

Is the right to housing a Fundamental Right?

A

No. No Federal laws do not guarantee a right to housing; rather, Americans are provided a bundle of protections, including freedom from housing discrimination through the Fair Housing Act.

24
Q

What are the Zoning Variances?

A

A zoning permit or variance may be needed in a number of situations that may change the zoning classification of the property.

Exemptions
Zoning Restrictions
An Exception to these law are granted on a case by case basis by a local government

25
Q

What must the owner prove to receive a Zoning Variance?

A

When seeking a variance, a property owner must show a variance is necessary to:

-Prevent an undue hardship that is unique to the property & not the fault of the owner.

-Allow the enjoyment of a reasonable financial return on the property.

-The owner must also show that the proposed use of the property will not change the spirit of the neighborhood, nor infringe on a neighboring property owner’s rights, use, or enjoyment of his own land.

-Variance must not go against the general purpose

-Variance does not harm the general welfare of the public

26
Q

What is a Nuisance?

A

An unreasonable interference with an owner’s use of his property.

27
Q

What is the Doctrine of Waste?

A

Waste is a term used in property law to describe a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property.

28
Q

What is the Doctrine of Waste?

A

The tenant must keep property in the same condition as it was when they took ownership.

29
Q

What are the 3 Types of Doctrine of Waste?

A

Affirmative (Voluntary) waste; Intentional & Willful damage to the property that the value of the land decreases.

Permissive Waste - Failure to protect the property from damage, such as land falling, disrepair, etc.

Ameliorative Waste - When the life tenants makes improvements of the property that changes the land value.

30
Q

Do most jurisdictions allow the life tenants to make improvements?

A

Yes:

If the change in the neighborhood conditions makes the improvement necessary and,

If there is no demolition in the property value.

31
Q

What is an Easement in Gross?

A

One that benefits a person or entity instead of a parcel of land.
No Dominant Estate involved, only Servient Estate
Ex.: Billboard of power lines on Serviant Estate.

32
Q

Can you transfer an Easement Appurtenant?

A

Yes, it transfers automatically B/C it is attached to the Dominant Estate and does not need to be explicitly stated in the transfer.

33
Q

Can you transfer an Easement in Gross?

A

No! It is not transferrable unless for Commercial purpose.

34
Q

What is Profit a Prendre?

A

A profit a prendre is clearly distinguishable from an easement. In an easement there is a nonpossessory interest in land generally giving a person only a right of way on the property of another. However, in profit a prendre, there is a right to take something off the land of another person.

Ex. Lumbar, Coal, Soil

35
Q

What are Covenants?

A

A covenant (in the context of residential neighborhoods) is a set of rules governing how real property is used. However, it may also refer to a promise or other governing clause in a deed involving conditions on the use of the land. In this promise, the new homeowner “covenants” or agrees to follow certain restrictions on how the land is used.

36
Q

What are Real Covenants?

A

Conditions are tied to the ownership or use of the land.
They are promises that the Landowners make regarding the use of their land.

Can be affirmative promises to do something,Ex.: A Covenant Running w/the land.

37
Q

What are Real Covenants?

A

Conditions are tied to the ownership or use of the land.
They are promises that the Landowners make regarding the use of their land.

Can be affirmative promises to do something w/the land.

 Ex.:  

     -A Covenant Running w/the land.

     -Maintaining an English Garden on the Land in 
       Perpetuity or, 
       a Negative promise not to do something (e. g, not to 
      erect a  cell phone tower on the property.
38
Q

Affirmative v. Negative Covenants

A

Affirmative Covenants are Positive Covenants that are legal promises to engage in certain activities or meet certain Benchmarks added to a financial k that an issue must follow.

Negative Covenants instead are Restrictive Covenants that restrict a company or issuer from engaging in certain actions.

39
Q

What is required for the Burden of Covenant to run with the land?

A

For a real Covenant to Bind Successors, one needs WPINT:

Writing
Privity
Intent
Notice
Touch & Concerns

40
Q

What is required for an Equitable Servitude to Bind Successors?

A

For an Equitable Servitude to Bind Successors, one needs everything a Real Covenant needs except Privity, TIN .

Touch & Concerns
Intent
Notice

REAL PROPERTY (3 decks)

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