Final Flashcards
1
Q
Seisin
A
person who actually has possession of land
2
Q
Four kinds of Fee simple
A
Fee Simple Absolute, Fee Simple Determinable, Fee Simple on or subject to a condition subsequent, Fee Simple on or subject to executory interest
3
Q
Fee Simple Absolute
A
Largest interest in property. last forever unconditionally and without limitations as far as ownership in law recognizes. MODERN - courts prefer FSA so there is no need for magic words. COMMON LAW - “and his heirs” required to create a FSA because courts favored Life Estates. FSA is inheritable, alienable, and devisable.
4
Q
Escheat
A
no heirs (no will) whatsoever, MODERN - goes to the state, CL - went to the overlord
5
Q
Fee Simple Determinable
A
“to A for so long as”. Fee simple until the occurrence of a given event. If the event occurs, estate automatically terminates. O retains possibility reverter.
6
Q
Fee Simple Subject to a Condition Subsequent
A
Grantor retains the right to enter and terminate the estate. O retains right of entry or power of termination.
7
Q
Fee Tail
A
Passes land to future generations without end. Created by “to A and his heirs of his body”. Not used modernly (4 states still have it). MAJORITY - creates a FSA. MINORITY - LE to named transferee and a remainder in FSA to Life Tenant’s issue. VERY FEW - Fee tail to named transferee and FSA in transferees issue.
8
Q
Life Estate
A
Created by “to A for life”. Estate endures for A’s life. Not inheritable unless it is an estate pur autre vie (life of another)
9
Q
Waste
A
Absent agreement to contrary, generally not allowed to commit waste at CL. Modernly, trend that ameliorative waste is not actionable if tenancy will last a long time
10
Q
Open Mines Doctrine
A
Exception to law of waste. If at time life estate created property already being used for that purpose (mining, timber, ect) these could be continued and not be considered waste
11
Q
Five Future Interests
A
Possibility of Reverter, Right of Entry, Reversion, Remainder (vested or contingent), Executory.
12
Q
6 Present Estates/Future Interest that Follows
A
FSA FSD/Possibility of Reverter FSCS/Right of re-entry FT/Reversion, remainder LE-/Reversion, remainder FSEL/Executory Interest
13
Q
Contingent Remainder v. Vested Remainder
A
Contingent Remainder:
Unborn and unascertained person
Subject to a condition precedent
Vested Remainder:
Born and ascertained person
Not subject to a condition precedent
14
Q
Condition Precedent
A
Only takes if something happens. On final it will be placed before and most likely separated with a comma.
15
Q
Rule of Convenience (for closing classes)
A
If A dies and two members of an open class are ready for the land to vest but still possibility of more class members, class closes because interests are ready to vest.
16
Q
Executory Interest
A
Future Interest in a 3rd party that: 1. cuts short the preceding present possessory estate OR vested FI OR 2. takes affect after a gap in time
17
Q
Common Law rules limiting Future Interest
A
Rule in Shelley’s Case, Doctrine of Worthier Title, Destructability of CR, and Rule against Perpetuities (this is only one on test)
18
Q
Merger Rule
A
If you have a vested interest in property, and no interest in between them, you put them together in largest interest
19
Q
Rule Against Perpuities
A
No contingent future interest created in transferee is good unless it must necessarily vest, if at all, not later than perpetuities period (21 years) of some life in being at time of conveyance.
20
Q
Policy Rationale Behind RAP
A
Further alienability of property. Applies to CR, EI, VRO. Undue concentration of wealth. Dead hand control.
21
Q
RAP applies to:
A
CR, EI, VRO, VROD
22
Q
Charitable Gift Exception
A
If defeasible fee is in a nonprofit (1st taker) and 2nd taker is a charity, RAP doesnt apply.
23
Q
RAP Reforms:
A
- Wait and See for CL RAP period
2. US RAP (Uniform Statutory RAP) - 90 years wait and see
24
Q
Cy Pres
A
allows court to reform a gift to conform to RAP and still trying to accomplish grantors intent
25
Perpuities Saving Clause
Identify measuring life
26
Ab Initio
from outset
27
O -> A and his heirs 25 years from now
| RAP violation?
Most courts today and early CL said this was special kind of EI. We know exactly what is going to happen. It is treated as a VR. But, some courts will treat as RAP strikes.
28
RAP and commercial and option to purchase
RAP applies to commercial. Option to purchase - RAP can apply (Majority). If O retains right to re-enter upon repayment of A's purchase, this violates RAP.
29
Concurrent Interest
1. Tenancy in Common
2. Joint Tenancy with Right of Survivorship
3. Tenancy by the entirety
CL presumed JTWROS
MODERN presumes TC
30
Tenancy In Common
- 2 or more at same time
- might have different percentages of land
- separate but undivided interest
- devisable, inheritable, alienable
31
Joint Tenancy With Right of Survivorship
- Each seised of his percentage fractional interest but also of the whole
- Alienable
- Four Unities must be present:
1. Unity of time (take at same time)
2. Unity of title (take by same instrument
3. Interest (same percentage)
4. Possession (able to possess the whole)
CL- if instrument silent but all 4 unities present, JTWROS created.
MODERN- instrument must be clear to create JTWROS
32
Tenancy by the Entirety
- Only between husband and wife (marriage)
- legally married
- Not recognized in all states (minority rule)
- Need all five unities (marriage being the 5th)
- Can not sever unilaterally
- Divorce terminates. Becomes whatever divorce decree says. SPLIT OF AUTHORITY when it is silent, slight majority says JTWROS
33
Rights and Obligations among Co-Tenants: Rent
Occupying tenant does not generally owe other tenants rent so long as he is not excluding or ousting other co-tenant. If exclude or oust a co-tenant, owe fair market value of rent.
34
Rights and Obligations among Co-Tenants: 3rd party's rent
Each co-tenant is owed his share of the rent actually received.
35
Carrying Charges
Property tax, HOA fees, principle and interest (mortgage/note payment). Entitled to contribution immediately for pro rata share.
36
Necessary repairs
No right to immediate contribution but right to credit at sale or partition (actual cost)
37
Improvements
no right to immediate contribution but on sale or partition credit for enhancement value to the property
38
Termination of JTWROS
- Split of authority if divorce terminates (look to divorce decree).
- Many modern jurisdictions create JTWROS without strawman
- Split of authority if lease severs
- split of authority if murder does (majority it does)
39
Right to partition
Any co-tenant can bring suit to partition.
| - CL - cant agree to NOT partition
40
Partition in kind and by sale
Courts favor partition in kind over partition by sale.
- courts will order sale when partition is not practicable (too small) OR when great prejudice to the co-tenants would arise
41
Owelty
Money payment. Courts will use this to compensate the other party for the inequality
42
Adverse Possession
1. Actual entry and actual possession
2. Exclusive
3. Uninterrupted (continuous)
4. Hostile/adverse/claim of right
5. Open and Notorious (visible/not secret)
- Actual
- Constructive
Must have all of these for the limitations period.
43
Color of Title
Have title that is defective, usually a shorter statute of limitations period. Only need to enter and use a portion of the land to get all the land the instrument purports to give. However, actual possession will trump constructive possession.
44
Boundary established by acquiescence
A way around adverse possession because sometimes not open and notorious. Reliance on that as boundary for so long.
45
Tacking Adverse Possession
Yes, must be in privity possession:
- agreement (gift, will, deed, intestate, ect)
- something more than making er own claim but with the other possessor
- some agreement
46
Policy behind Adverse Possession
- Assure max use of the land
- Eliminate stale claims
- Quiet Titles (most say most important)
47
Interrupting Adverse Possessor
- True owner re-enter
- File suit
- True owner fence off and bar AP entry
- needs to be successful for a reasonable period of time
48
Adversely possessing State Land
General rule, can't AP land owned by state.
| - trend to be broader and not allow land owned by city
49
Adverse Possession: Disability
- If true owner under a certain disability when AP enters land, S/L is tolled while under one of certain disabilities
- Narrow operation (mental illness (severe, legal incompetency), minority (usually under 18), imprisonment (most eliminate this)
- Only if under disability at time AP'or enters land
- not suspended or tolled if true O's disability arises after entrance
- S/L ceases to be tolled when true O's disability terminates
- Operate only against true O at time AP entered
- Disabilities can't be tacked
50
Servitude
burden on the land, any non-possessory right that occurs by agreement between parties
51
2 kinds of servitudes
1. easements (profits) - affirmative or negative
2. Covenants - (real or equitable servitudes) look like negative easements
Aff. Easement is right to enter the land in a specific way
Neg. Easement is right to limit or prohibit some use of the burden land
52
Affirmative Easement
Appurtenant - benefits the land
| In gross - benefits owner personally
53
Servient Estate/tenantament
Burden land
54
Dominant Land
benefited land
55
Ways easement can be created
- Express grant
- implication (prior use)
- Necessity
- Prescription (AP elemnts)
- Implication by reference to a plat (map)
56
Transferability of easements in gross
CL - not transferable
| Modern - transferable if commercial in nature and clear parties intended transferable
57
Implied Easement by prior use
- has to have been under 1 ownership
- that owner put a portion of land to benefit another portion of land
- at time of severance, was that use permanent? open? visible? Continuous?
- necessity
58
Implied grand v. implied reservation of an easement by prior use
Implied reservation needs strict necessity but implied grant only needs reasonable necessity
59
Easement based on Necessity
1. Unity of ownership of dominant and servient estates
2. Severance of unity of title by conveyance of one of tracts
3. necessity of the use of servient estate at time of division
Majority - needs to be strict necessity
Modern - navigable river isn't a way on or off property
60
Difference between Easement based on necessity and implied easement by prior use
- If I/E might need strict might need reasonable but if necessity goes away, easement continues.
- E/N if find another way out = ends easement
61
3 ways to create easement by implication
1. Implication (prior use) unity of ownership, one part benefiting another part, quasi easement
2. Necessity- no prior use, dominant tenement is landlocked
3. Reliance on plat/map
62
Easement by prescription
1. Actual use
2. Continuous - use on regular basis like a true easement owner would
3. Without interruption - blocking road, bringing suit, interruption must be successful
4. Visible (open and notorious) - use was sufficiently open and notorious to apprise a diligent owner of its existence
5. Adverse - use without permission
63
Can negative easements arise by prescription?
No. Most commentators - further, negative easements don’t arise by implication
64
Overburdening or surcharging a tenanment
1. Express easement created - if its use is expressly limited, owner cant use in any way inconsistent with the limitation (include type, volume, amount)
2. When not expressly limited -> easement can be used for any purpose to which dominant tenement then or in future may reasonably be devoted
65
Servient Tenament use of the S/T (including easement)
owner of S/T can use the entire S/T, including easement, for any purpose so long as if not interfere with right of way for D/T
66
Relocating the right of way even if equally convenient?
Express easements can't be relocated unilaterally by S/T
67
Duties for an easement
1. Owner of easement has right and duty to maintain
a. Serv. Has no duty unless expressly undertook
2. S/T has duty to not use S/T in a way to unreasonably interfere with D/T use of easement
3. Once location has been fixed, either express or court ordered, neither owner of easement tenement can change it without consent of the other party
4. Owner of easement cannot alter character/use of easement if it overburdens/surcharge/interferes with S/T
68
Transferability of easements
- Appurtenant are transferable with D/T whether or not mentioned in deed/device
- Transfer of easement in gross
○ If comm's in nature then it is transferable as long nothing expressly saying not transferable
○ Old CL rule, easement in gross ended and not transferable
Modern Rule: comm'l, intent, no intent otherwise: transferable
69
Termination of easements
1. Easement terminates by express terms if there
2. Easement by necessity terminates when the necessity terminates
a. Not true of an easement by prior use
3. Easement may be released by easement holder
4. Easement ends by merger
5. Easement can terminate by prescription
6. Easement terminates when abandoned
7. Can be extinguished by estoppel
a. Stop using easement and tell you you can build a house
b. Reasonable reliance on promise or non use
8. Can be terminated by destruction of building that serves as D or S/T
9. Holder of D/T misuses easement in such a manner that it is impossible for court to enjoin misuse
10. S/T conveyed to bona fide purchase without actual, constructive, or inquiry notice of easement
11. Condemned by government
a. Government has to pay easement owner
70
License
An authority to do a particular act or series of acts upon others land without possessing any interest
- Doesn’t need writing
- Revocable at will licenser
71
If license revoked?
licensee has reasonable time to leave. May still have a breach of contract claim though (ex. department store leasing fragrant counter)
72
License irrevocable by estoppel
Majority Rule - Where licensee has entered under parol license and expected money or its equivalent in labor, in the execution of the license, license becomes irrevocable. The licensee will have the right of entry upon land of licensor for the purpose of maintenance and will continue as long as nature calls for
Minority, has to be writing
73
Conventee
one who receives the benefit
74
Coventor
One who has the burden
75
Affirmative Real Covenant
each owner pay an annual assessment for maintenance of common areas
Often covenant to reach in pocket. In England - only neg. cov are enforceable. VAST MAJORITY- both are enforceable. Handful follow England
76
Difference between restrictive covenant and fee with prohibited use? i.e. FSD v. FSA with covenant
FSD - violate and lose rights to property
FSA with covenant - don’t lose property bust can be sued for money judgment or injunction (equitable serv)
- Real Covenant = money judgment
- Equitable Servitude = injunction relief
77
Servitudes are _______________________
non-possessory interests in land
78
Equitable Servitude doesn’t need to be in writing IF:
Sanborn v. Mclean-> Common plan of single family residential use from or by a common grantor. Minority say can't arise by implication.
79
Real Covenant or Equitable Servitude elements
1. Enforceable as covenant/contract
a. Comply with S/F (except Sanburn exception)
b. Cant be too vague
c. Cant be against public policy
2. Original parties must intend benefits and burdens run with the land
3. Touch and concern the land (benefits and burdens)
4. Privity of Estate (NOT FOR E/S)
5. Notice (BURDEN PARTY has to take with notice)
a. Actual, inquiry, constructive
80
Notice (E/S or R/C)
- Actual
- Constructive notice (reasonable person should have known)
○ Record (could go to court and see record)
○ Inquiry (way land was developed or not developed, sale brochures, statements by salesperson, something someone else said)
81
Intention to run (E/S or R/C)
- Original parties intended it not be merely personal but that it runs to each successor
- Modern - parties just make it clear (no magic words)
- Old CL - (some still follow) "assigns" had to be used
82
Touch and Concern (E/S or R/C)
- Benefit and burden must touch and concern land
- Cant be merely personal
○ Ex. A and B agree A will paint portrait of B. this has nothing to do with the land
- Does burden sufficiently relate to land, does benefit sufficiently relate to benefited land
- Basically cant be covenant in gross
- Restriction on use = courts almost always hold it touches and concerns land
- Aff. Covenant? This is the hard on
○ If maintenance fee for common areas - courts uphold under theory benefited land can use common area - benefited land is increased in value and burden has to maintain
- (TEST) Does covenant impose, on the one hand, a burden upon an interest in land, which on the other hand increases the value of a different interest in the same or related land?
83
Termination of Real Covenants
1. Express provision for its own termination
2. Equitable servitude is only time created by implication
3. Can be released by it’s holder(s)
4. Real covenant could end by merger
5. Waive or abandon
6. Estoppel
a. Build in violation of covenant and you know/promise, cant change your mind
7. Conveyed without actual, constructive, inquiry notice
8. Condemned by government
a. Gov pay value of covenant
84
Doctrine of Changed Conditions
conditions changed so much, benefits aren't real or covenant isn't real. Covenant terminated by doctrine
85
How much weight to give an area outside the restricted area of R/C?
Split of authority
86
Waiver or Abandonment (R/C S/E)
In order for community violations to constitute an abandonment, they must be so general as to frustrate the original purpose of the agreement
87
Can a zoning ordinance override privately placed restrictions?
General Rule: A zoning ordinance cannot override privately placed restrictions AND a trial court cant be compelled to invalidate restrictive covenant merely because of a zoning change
88
What to do when multiple restrictions on the land?
General Rule- only most restrictive requirement on land controls
89
Horizontal Privity of Estate
English Rule: (England and a few US jurisdictions) - Landlord-Tenant relation (lease)
Majority: Grantor - Grantee relation (successive relation)
- Also recognize English rule in majority
3rd Restatement of Property - No PE required
90
Vertical Privity of Estate
To enforce burden against successors, the successor has to take the original parties entire estate in land
For benefit to run, successor can take entire estate or any lesser estate in land
