Final Recording, Servitudes, Zoning and Takings Flashcards
what is required for the statute of Frauds?
1) contract of a writing in an interest in land MUST BE IN WRITING (memo of sale)
2) must be signed by the party to be bound
3) must describe the real estate
4) must state the price
what are the 2 exception for the SOF?
1) part performance
2) estoppel
what does part performance require?
evidence of an oral contract
what is the evidence that is required of an oral contract in part performance?
1) took possession
2) paid part of the purchase price
3) made alterations or improvements to the property
what is estoppel?
when someone reasonably relies on an oral promise and substantially changes their position (HICKY v. GREEN)
what is a marketable title?
a title that is reasonably free from defect at the closing (LOHMEYER v. MEYER)
what do defects of a market title include?
1) encumbrances (covenants, easements, liens)
2) zoning violations (not zoning ordinances)
3) defective chain of title
when does equitable conversion occur?
after the contract is signed
what title does the buyer take in an equitable conversion?
the equitable title
what title does the seller take in an equitable conversion?
the legal title
what happens if there is any damage to the property between the signing of the contract and closing?
Majority: the buyer bears the loss
Minority: seller bears the loss; party in possession bears the loss
what are some examples of instruments that can be recorded?
1) mortgages
2) deeds
3) liens
4) wills
5) leases
what is required for a recording of property?
1) description of the property
2) name of grantor and grantee
3) signature of grantor
4) notarization
5) pay transfer tax
what is a bonafide purchaser?
a subsequent purchaser who in good faith WITHOUT PRIOR NOTICE of an earlier transfer and spends VALUABLE CONSIDERATION purchasing an interest in real property
what is actual notice?
when the subsequent purchaser knows of the prior transfer
what is record notice?
when the subsequent purchaser is presumed to have notice of interests that are properly recorded
what is inquiry notice?
when subsequent purchaser is presumed to have notice of something that would have been revealed by a reasonable investigation
when does the subsequent purchaser in a race statute jurisdiction prevail?
if they win the race to record
who wins in a race statute jx?
the first to record and the BFP doesn’t matter
when does the subsequent purchaser in a notice statute jx prevail?
if he had no notice of the prior unrecorded instrument at the time of the transaction
what language should you look for in a notice statute?
No conveyance is valid against a subsequent BFP (the rest is redundant)
when does the subsequent purchaser prevail in a race-notice jx?
if without notice of the prior unrecorded instrument at the time of the transaction AND wins the race to the record
if the subsequent purchaser is a BFP and they record first, do they win an race-notice jx?
yes but they will lose in all other circumstances
what is the language to look for in a race-notice statute?
No conveyance is valid against a subsequent BFP (same as notice statute) AND who has recorded the conveyance to the deed first
what type of element is needed for a race-notice statute jx?
some sort of time element
what are servitudes?
private contractual interests that run with the land and bind successive owners
what do servitudes consist of?
1) easements
2) covenants (real and equitable servitudes)
what is a nuisance?
a judicial remedy for unreasonable use of land
what is zoning?
legislative method of regulating land use
what is an easement?
an IRREVOCABLE INTEREST in real property that entitles the owner to USE or control property owned by another
what is a profit?
the right to take something off someone else’s land (lumber, fish, apples)
what is a license?
a revocable right to use and enter the land of another (dinner guests)
what is an easement appurtenant?
an easement that involves 2 parcels of land and the right to use directly benefits the holder by allowing them physical use of another’s land
does an easement privilege/restriction of an easement appurtenant run with the land?
yes with the possession of the dominant tenement
does an easement appurtenant need to be in the deed?
no
what is an easement in gross?
involves 1 parcel of land (the servient estate) such as an easement for a water utility line that crosses the land (no dominant tenement)
if an easement in gross is personal, is it transferable?
NO (including the sale of property that reserves an easement in favor of a third party)
what does the dominant and servient estates require of an implied or necessity easement?
that they both were under common ownership in the past
when there is a common driveway, what can the court find?
prescription, implication or estoppel
what does an express grant have to have to create an easement?
a writing that is signed by the grantor
what are the elements of an easement created by estoppel and what case is it from?
(HOLBROOK)
1) a revocable license that is made irrevocable if:
2) it changes the position (erect improvements or makes substantial expenditures)
3) in reasonable reliance on statements (or silence) of the licensor (HOLBROOK)
what are the elements of an easement created by implication with prior use and what case does it come from?
(VAN SANDT)
1) the parcels are split
2) there is a common grantor (one party must have owned both parcels)
3) existing of one parcel to benefit another
4) use must be apparent (inquiry notice)
5) reasonably necessary to the dominant land’s use and enjoyment
what are the elements of an easement created by implication with necessity and what case does it come from?
(OTHEN)
1) parcels are split
2) unity of ownership
3) easement is necessary, not mere convenience
4) necessity existed at the time of severance of the two estates
5) landlocked setting
6) terminates upon termination of necessity
what are the elements of an easement created by prescription and what case does it come from?
(OTHEN) like adverse possession: 1) actual use 2) open and notorious 3) continuous and uninterrupted for the statutory period 4) hostile or adverse
what is the difference between adverse possession and an easement by prescription?
in AP, you gain the right to possess the title, in prescription, you gain the right to continue using the land (you do not get title)
how do you terminate an easement by prescription?
the owner of the servient estate can take back the land by way of prescription by physically blocking it for 20 years
what is a covenant?
a contract that makes promises regarding the land that runs to successive owners of the promisor’s land
what is an example of a restrictive covenant?
“I promise not to build for commercial purposes on my land.”
what is an example of an affirmative covenant?
“I promise to maintain our common fence.”
in the covenant A promises B that A will use her land for residential purposes only, who has the benefit and who has the burden?
A’s parcel is burdened by the restriction (servient estate) and B’s parcel benefits from the restriction (dominant estate)
what are the elements of a real covenant?
1) enforceable at law (money damages)
2) must be in writing
3) must have intent to bind successors
4) must have touch and concern with the land
5) must be horizontal and vertical privity for the burden to run with land
6) must be vertical privity for the benefit to run with the land
what are the elements of an equitable servitude?
1) enforceable in equity (injunction)
2) must be in writing
3) must have intent to bind successors
4) must have touch and concern with the land
5) must have had actual, record or inquiry notice
what are ways to modify or terminate a covenant?
1) abandonment/waiver
2) change position
what does it mean to abandon or waiver a covenant?
if the covenant is not consistently enforced, it may be considered abandoned or waived and become UNENFORCEABLE
what does it mean to change positions in terms of a covenant?
the original purpose has not be thwarted and the covenant remains of substantial value to the other homeowners
what is aesthetic zoning and what case does it come from?
(STOYANOFF v. BERKELEY)
the exercise of police power, legitimately used to protect property value and community character
what is the goal of traditional zoning?
the preservation of property values
what is the zoning pyramid under traditional Euclidean zoning?
ex: zone 1 just single families, zone 2 single families and 2 families, zone 3: apartments, hospitals, clubs etc.
under the 14th Amendment, when does a regulation violate due process?
when it is ARBITRARY and UNREASONABLE and having no substantial relationship to public welfare
what are the downside of zoning?
1) parochialism
2) exclusionary zoning (apartment houses come close to being nuisances)
3) strict separation of use (sprawling development)
what is an eminent domain?
the Takings Clause stating that private property shouldn’t be taken for public use without just compensation
what is considered “just compensation” in the Takings clause?
market value
what are examples of actual use by the public in takings?
public park, highway, common carrier (railroad)
what is the purpose of takings?
1) urban renewal (BERMAN v. PARKER)
2) land reallocation (HAWAII v. MIDKIFF)
3) economic development pursuant to plan (KELO)
what are regulatory takings?
even though property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking (PENN COAL)
what is the difference between zoning and takings?
Zoning is the due process in that the regulation must be reasonably related to government interest (EUCLID) and takings are physical (KELO) and regulatory (PENN COAL)
what do you need to look at to decide if just compensation is required?
what is being taken and whether it’s being used for public use
at the end of an eminent domain proceeding, who who will have legal title of the land (physical taking)?
The government (KELO)
what is inverse condensation?
where the burden is on the property owner to prove that the taking is so burdensome that it is equivalent to the government taking the land
things to ask yourself when assessing a takings question
1) does this involve private property?
2) did the government take the private property?
3) was the private property taken for public use?
4) is the private property owner getting just compensation?
