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Property is BS > fucc property > Flashcards

fucc property Flashcards

1
Q

Theories of property

A

protect first possession; encourage labor; maximize social happiness (utilatarianism); ensure democracy (civic republicanism); facilitate personal developments

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2
Q

Capture of wild animal

A

Pierson v Post: actual bodily seizure, intentional trapping, mortal wounding and pursuit

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3
Q

General Rule of Capture

A

to claim possession one needs clear and certain control

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4
Q

Right of Publicity Common law

A

defendant uses P’s identity; appropriation of P’s name or likeness was to D’s advantage; lack of consent; resulting injury

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5
Q

Right of Publicity Case

A

White v Samsung, wheel of fortune lady likeness

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6
Q

Limits on Rights to transfer

A

minors, conservatorships, mentally ill, duress, joint ownership issues, statute of frauds, cannot transfer beyond death without will

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7
Q

Fully inalienable property

A

votes; pensions; jobs; people

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8
Q

Market-inalienable property

A

organs; babies; sex; fish and game

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9
Q

Only market-alienable property

A

Basically trust assets

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10
Q

Conversion Case

A

Moore v Regents of UC

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11
Q

Conversion common law elements

A

P owns or has right to possess; D intentionally interferes with P’s personal property (dominion and control); interference deprived the plaintoff of possession or use of the personal property; interference caused damages to P

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12
Q

Right To Transfer/Discovery (McIntosh)

A

confers title to conquering country; court has to enforce the law of the country that gives it power; property rests upon and confers power; helps resolve conflicts and promote cooperation

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13
Q

Common law trespass elements

A

unprivileged physical invasion of property possessed by another; must be intentional in almost all states

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14
Q

Defenses to Trespass

A

Privilege or necessity; permission

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15
Q

Limits to Trespass

A

Civic and public rights

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16
Q

Spite Fence

A

no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor

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17
Q

Common law nuisance elements

A

intentional, nontrespassory, unreasonable, and substantial interference with P’s use and enjoyment of the land

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18
Q

Jacque v Steinberg right to exclude

A

motor home on property case; people have the right to feel secure in their land; concept of punitive damages for trespass

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19
Q

State v Shack right to exclude

A

property rights serve human values; title to real property cannot include dominion over the lives of persons the owner permits on the premises; statutory right of accesses

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20
Q

sic utere rule

A

use your own things and do not injure the things of others

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21
Q

right to use (sundown v King)

A

hotel spite fence case

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22
Q

Restatement test for unreasonable intrusion in nuisance

A

the gravity of the harm outweighs the utility of the actor’s conduct

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23
Q

Non-restatement/minority test for unreasonableness in nuisance

A

only examines the gravity of the harm

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24
Q

severance from real property

A

removing things from real property and making them into personal property

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25
Q

Fixtures on real property

A

personal property that is attached to the real property, such as a lamppost

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26
Q

justifications for adverse possession

A

preventing frivolous claims as a SoL; correcting title defects in favor of who is actually using the land; encouraging development and use of the land; protecting personhood

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27
Q

elements of adverse possession

A

open and notorious; continuous for the statutory period; exclusive; actual; adverse and hostile

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28
Q

Open and notorious use in adverse possession

A

generally, anyone making a cursory inspection could see the claimant was using the land or a reasonable inspection by the owner would uncover the use

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29
Q

Continuous requirements for adverse possession

A

continuous use as a normal owner would use the land; does not have to be daily; attempting to kick someone out does not halt continuity; statutory period is usually 10, 15, 20 years

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30
Q

Exclusive requirements for adverse possession

A

only the claimant is exercising control over the property

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31
Q

Actual use requirement for AP

A

claimant is using the land as a reasonable owner would; does not have to be as the actual owner would

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32
Q

tioga coal v supermarkets general

A

hostility requirement will be met regardless of subjective state of mind so long as the other requirements are met (majority of jx)

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33
Q

Adverse and hostile mental state requirements for AP

A

actual invasion of the owner’s property rights and in some states there are requirements for bad faith, good faith, but many do not consider state of mind

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34
Q

tacking in AP

A

both parties must independently meet the requirements for adverse possession other than continuity; and there is some sort of privity between the groups; normally direct transfer; rotating members of a group can try to jointly qualify

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35
Q

disability and AP

A

mental disability extends the statutory period in most states; usually from the time the disability occurs to when or if it ends

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36
Q

government and AP

A

generally no AP for public land unless in some states it is used for proprietary or non-public purpose

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37
Q

Partial interests and AP

A

adverse possessor only gains possession over the existing interest such as a life estate

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38
Q

Gurwit v Kannatzer

A

farmland-ish case, need to look at how a reasonable owner would use the land to determine actual use

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39
Q

Van Valkenburgh v Lutz

A

a person needs clear and convincing proof of AP, must actually be adverse to the owner’s possession

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40
Q

Fulkerson v Van Buren

A

use must be distinct and the adverse possessor cannot recognize the right of someone else

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41
Q

Howard v Kunto

A

tacking and privity

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42
Q

Limits of Vertical Ownership latin

A

ad coelum et ad inferos

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43
Q

US v Causby

A

a property owner owns at least as much space above the ground as he can occupy or use in connection with the land, interference with surface from an area above the surface aso counts

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44
Q

Chance v BP Chemicals

A

extends vertical limits to reasonable possible use below the surface, some kind of damage to surface must be shown for deep subsurface intrusions

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45
Q

Lateral support

A

right to have your land in its natural condition supported by adjacent parcels of land

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46
Q

subjacent support

A

right to have land in its natural condition supported by the earth immediately below it

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47
Q

Riparianism water rights

A

acquired by owning riparian land; no fixed quantity; all riparian rights are of equal priority; generally no storage or long distance transportation; subject to reasonable use doctrine

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48
Q

Riparianism reasonable use doctrine

A

reasonable use of water on the land; reasonable method of use; reasonale method of diversion

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49
Q

Prior Appropriation Water rights

A

intent to create a water right, diversion of water with physical control of the specific amount; beneficial use of the diverted water (only allowed the right; rights are prioritized by oldest first in times of shortage

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50
Q

Groundwater Absolute Ownership

A

unlimited right to use groundwater through a well on your property; only Texas does this

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51
Q

Reasonable use approach for groundwater

A

reasonable purpose; suitability; extent and amount of harm; benefits of the use; necessity of the amount and manner of use; misc factors

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52
Q

Correlative groundwater rights

A

overlying owners share during shortages but otherwise non-overlying owners can use so long as it does not interfere with use by overlying owners

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53
Q

environmental tragedy of the commons

A

Hardin’s theory that when a resource is shared, an individual’s share of profit from exploitation is higher than his share of the resulting loss

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54
Q

basic rule of lost property

A

the person who finds it has ownership interest against everyone but the original owner with exceptions for when someone else is more likely to be able to return the item

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55
Q

Replevin

A

seeking the return of the item itself

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56
Q

trover

A

seeking monetary damages equal to the value of the item

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57
Q

Armory v Delamirie

A

chimney sweep kid case

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58
Q

Hannah v Peel exceptions to finders keepers

A

a lost item goes to the finder unless the item was buried on real property or the person was invited in

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59
Q

mislaid items

A

willfully placed there; the person had the intent to return for it; the person forgot where it was

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60
Q

lost items

A

not voluntarily placed in the location; owner still has the intent to possess it; owner does not know where it is

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61
Q

abandoned items

A

willfully placed in the location; owner has no intent to return for it; owner intends to relinquish ownership

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62
Q

treasure trove items

A

the owner concealed the property in a hidden place and there is a substantial gap in time

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63
Q

Mislaid items McAvoy v Medina

A

mislaid items should remain with the owner/user of the locus in quo

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64
Q

Treasure Trove Rule Benjamin v Lindner

A

the property should be old enough that the owner is likely dead or definitively not looking for it

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65
Q

Agent rule for found property (South Staffordshire)

A

item goes to the employer of the agent

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66
Q

Found Buried items and rentals

A

item goes to the owner not the renter (Elwes)

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67
Q

types of gifts

A

inter vivos; causa mortis; testamentary

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68
Q

Inter vivos gift elements

A

immediate donative intent; delivery; acceptance

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69
Q

types of gift delivery

A

actual; constructive; symbolic

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70
Q

constructive delivery gifts

A

physical transfer of an object that give access to the gift, such as the keys to a car. If a safe password, must be on paper. Only allowed where actual/manual delivery is impracticable or impossible

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71
Q

Symbolic delivery of gifts

A

donor physically transfers an item that symbolically represents the gift, normally limited to things such as stocks or gifts that have not yet been delivered to the donor. Only acceptable if others are impossible

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72
Q

Gruen v Gruen

A

the father donated an immediate remainder interest in the painting, making it an inter vivos gift and not testamentary

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73
Q

causa mortis gift elements

A

given in fear of impending death but is revocable if the donor survives, revokes before death, or dies from an unanticipated cause

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74
Q

Brind v Intl trust

A

a causa mortis gift is automatically revoked if the person does not die of the anticipated cause

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75
Q

elements of a deed

A

written document that is a conveyance or grant of alienable property from a grantor to a grantee

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76
Q

elements of a will

A

passed with death, is devisable/devises to the recipient, must satisfy statute of wills

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77
Q

basics of intestate succession

A

owner dies but there is no will, generally passes to next of kin (kids, siblings, parents, parents’ siblings, etc) or to state if no next of kin

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78
Q

fee simple absolute

A

conveys all interests, magic words to A and his heirs, alienable devisable and descendible, default presumption in modern jurisdictions

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79
Q

Nemo dat rule

A

cannot give more of an interest than you have

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80
Q

life estate

A

from A to B for life; reverts to the grantor after the grantee’s death; cannot give to companies; aienable but not devisible or descendible since it reverts upon death

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81
Q

pur autre vie

A

if A sells his life estate to B, B’s interest terminates when A dies

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82
Q

Fee tail

A

from A to B and the heirs of his body; grantor has a possibility of reverter; property reverts if there are no remaining heirs

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83
Q

modern fee tail treatments

A

some states still allow; others create a life estate in the grantee and an FSA in his heirs, some states just treat it as an FSA

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84
Q

disentangling a fee tail

A

A can convey the fee tail to B and then B conveys it back as a fee simple;

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85
Q

Estates and Intent (White v Brown)

A

look at the document and use the expressed intent; if it is ambiguous presume a fee simple

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86
Q

Woodrick v Wood

A

if someone has a life estate they can alter the property so long as these alterations are beneficial to the value of the property

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87
Q

Types of waste

A

voluntary; permissive; ameliorative

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88
Q

Voluntary waste

A

a voluntary action that decreases the value of the property

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89
Q

permissive waste

A

lack of action leads to deterioration of the value of the property

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90
Q

ameliorative waste

A

act increases the value of the property; generally permitted in most jurisdictions

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91
Q

leasehold

A

conveys property for a fixed term; after the time passes the conveyor can have a reversion or someone else gets a remainder or future interest

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92
Q

Types of defeasible fees

A

fee simple determinable; fee simple subject to condition subsequent; fee simple subject to executory limitation

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93
Q

Fee Simple Determinable

A

fee simple to a transferee that automatically terminates upon a certain condition or event occurs; no prohibition on waste; grantor as a possibility of reverter; fully alienable devisable and descendible but condition remains

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94
Q

FSD magic words

A

so long as; unti; while; during

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95
Q

Fee simple subject to condition subsequent

A

may be terminated when a condition occurs at the discretion of the transferor; transferor has right to re-entry or power of termination; can effect through quiet title or self help

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96
Q

FSSCS magic words

A

provided that; but if; on the condition that

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97
Q

Fee Simple Subject to an Executory Limitation

A

interest transfers to a third party if a condition occurs; fully alienable devisable descendible

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98
Q

Reversion Interest

A

transferor conveys a lesser quantum than what they own

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99
Q

possibility of reverter

A

retained by transferor when conveying an FSD

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100
Q

right of entry

A

retained by a transferor who creates an FSSCS

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101
Q

Remainder interest

A

created in transferee, is capable of becoming possessory immediately upon the expiration of the prior interest but does not divest an interest of a prior transferee

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102
Q

executory interests

A

future interest in a transferee that must divest a prior interest in order to become possessory

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103
Q

springing executory interest

A

takes from the original transferor

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104
Q

shifting executory interest

A

takes from the transferee

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105
Q

indefeasibly vested remainder

A

created in an ascertainable person and not subject to condition precedent other than the natural termination of the estate

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106
Q

vested remainder subject to divestment

A

created in an ascertainable person and not subject to a condition precedent other than the natural termination of the prior estate but is subject to a condition subsquent

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107
Q

Vested remainder subject to open

A

meets vested remainder requirements but is granted to a class of people that could expand

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108
Q

contingent remainder

A

any remainder that is either not vested in an ascertainable person or is subject to a condition precedent

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109
Q

Rule Against Perpetuities

A

No interest is good unless it must vest, if at all, no later than 21 years after a life in being at the creation of the interest

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110
Q

What RAP applies to

A

contingent remainders, executory interests, and vested remainders subject to open

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111
Q

Only valid restraints on alienation

A

must be partial restraints and reasonable as to duration, scope, and purpose

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112
Q

Mahrenholz v County Board of Trustees

A

if the language is ambiguous, general preference for FSSCS; reversionary interest cannot be transferred

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113
Q

Metropolitan Park District v Ridley

A

right to entry is limited to a reasonable period after notice of the occurrence of the condition

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114
Q

Jee v Audley

A

cannot create a fee tail for personal property; RAP analysis hinges on what is technically possible no matter how unlikely it may be

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115
Q

Tenancy in Common

A

each tenant has an undivided fractional interest in the whole; each has the right to use and possess the whole; transferable

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116
Q

Joint tenancy

A

right of survivorship means the remaining possessors inherit the interest of someone who dies; not devisable or descendible; technically alienable but alienating destroys joint tenancy and creates a tenancy in common; subject to the four unities

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117
Q

four unities for joint tenancy

A

unity in time: must all be transferred at the same time; unity in title: must all be transferred in the same document; unity in interest: each joint tenant has an equal interest; unity in possession: each JT has the right to use

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118
Q

tenancy by the entirety

A

only for married couples; cannot be severed unilaterally; only ended by death, divorce, or bilateral agreement, otherwise the same as a JT

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119
Q

severing a joint tenancy

A

JT agree to convert it to a TIC; one JT transfers interest to someone else (CA requires recordation); one JT files in court for partition

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120
Q

partition of a joint tenancy types

A

partition in kind (preferred): each person gets an amount of land equivalent to their interest; partition by sale: court forces the sale and the proceeds are split according to interest

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121
Q

Ark land v Harper partition rules

A

can only overcome the presumption of partition in kind by showing: the property cannot conveniently be partitioned in kind; the interests of one or more parties will be promoted by the sale; the interest of the other parties will not be prejudiced by the sale (considers emotional and sentimental value)

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122
Q

Tenhet v Boswell

A

a lease cannot turn a joint tenancy into a tenancy in common; because it is difficult to create a joint tenancy it cannot be accidentally destroyed

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123
Q

General cotenant rights and duties

A

each tenant is responsible for his pro rata share of operating and maintenance expenses such as mortgage, tax, insurance

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124
Q

Improvement expenses for cotenants

A

reimbursed upon sale to the tenant who paid for the improvement

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125
Q

contribution action in cotenancy

A

one cotenant seeks reimbursement from others for expenses she has paid towards the operation or maintenance of the property

126
Q

Accounting action in cotenancy

A

a cotenant seeks to obtain his share of the rents and profits generated by the property

127
Q

Ouster and cotenancy

A

ouster is an act of exclusion; generally the ouster has to pay rent to the person he ousted; if the oustee does not collect rent adverse possession may apply

128
Q

Cotenancy rent no ouster

A

traditionally there has been no requirement of rent payment but recently courts have started suggesting that the rental value be factored into accounting or partition or contribution actions

129
Q

Esteves v Esteves

A

if one tenant is in sole possession, the other tenant’s share of operating and maintenance expenses are offset by the fair market value of renting the property

130
Q

fair housing act

A

cannot discriminate in sale or rental of real property based on race, gender, religion, handicap, familial status or publish any advertisement or statement that indicates a preference for one of those categories

131
Q

Exceptions to the Fair Housing Act

A

units with fewer than four independent families living there when the owner also occupies the premises; any single-family house rented or sold by an owner if he does not own more than three houses and does not use a real estate agent or broker

132
Q

housing discrimination burden shifting framework

A

P must establish a prima facie case of discrimination, then if defendant can articulate a legitimate reason for the conduct, the plaintiff must show that the reason is merely pretext

133
Q

Neithamer v Brenneman Property

A

gay man was rejected under the pretext of bad credit despite having guarantors and offering to prepay, tried to allege discrimination

134
Q

common law tenant selection rule

A

can reject any tenant for any reason

135
Q

modern tenant selection rule

A

limited by various civil rights statutes

136
Q

term of years tenancy

A

fixed duration for a specific number of weeks/months/years, expressly created by both parties, majority rule requires a signed writing, terminates automatically at the end of the term

137
Q

periodic tenancy

A

month-to-month or year-to-year; automatically renewed unless either party gives adequate notice; created expressly or implicitly if a tenant stays after a specific term and LL continues to collect rent; common law notice period is the length of the period but states change this

138
Q

Tenancy at will

A

no defined period of length; created by an arrangement where T takes possession with LL permission; modern trend is to require notice equal to the period between rent payments; bilateral right to termination

139
Q

tenancy at sufferance

A

holdovers/unlawful possession; terminates when the landlord has the tenant evicted and collects damages equivalent to rent; LL can choose to treat the person as a tenant with the same terms of the previous lease and create a periodic tenancy

140
Q

lease analysis steps

A

whether tenant selection is compliant with statutes; what type of tenancy; duties of landlord; whether the tenant has transferred an interest; if/how the tenancy was ended

141
Q

delivery of possession american rule

A

LL must deliver the legal right to possession; tenant has to evict a holdover and collects damages

142
Q

delivery of possession english rule

A

LL must deliver the right to possession and actual possession; L must evict the holdover; T sues LL for damages and LL sues holdover

143
Q

Keydata corp v us

A

case example comparing the english and american rules for delivery of possesion;

144
Q

constructive eviction doctrine

A

wrongful conduct or omission by LL that substantially interferes with T’s use and enjoyment of the leased premises; T must give LL a reasonable time to fix the issue and T must leave within a reasonable time; T can avoid rent and vacate

145
Q

Omissions sufficient for constructive eviction

A

LL fails to perform an obligation of the lease; fails to adequately maintain and control a common area; breaches a statutory duty owed to the tenant; fails to perform promised repairs; allows nuisance-like behavior

146
Q

implied warranty of habitability

A

general standard is that the premises are safe for human occupation and there is substantial compliance with health and safety codes; not waivable; LL is not liable for damages caused by T

147
Q

Wade v Jobe

A

implied warranty of habitability case; Utah standard is that the LL must maintain bare living conditions and ensure the premises are safe for human occupation

148
Q

Assignment of a lease

A

T2 steps into T1s shoes; T2 usually pays rent to LL; LL can sue T1 or T2 but if LL sues T1 then T1 sues T2

149
Q

JMB Properties v Paolucci

A

must vacate the premises within a reasonable time to succeed in a constructive eviction suit

150
Q

sublease

A

T1 and T2 have a deal that may or may not mirror the lease; t2 pays t1 pays LL; LL sues t1 and t1 sues t2

151
Q

assignment vs sublease Ernst v Conditt

A

if t1 retains a right to reentry or intends to retain one then it is a sublease

152
Q

Novation

A

initial lease is void; t2 and LL create a new lease

153
Q

standards for denying a sublease or assignment

A

LL has sole discretion; LL can reject for reasonable reasons; silent consent clause majority rule is reasonableness but common law is sole discretion

154
Q

Reasonable bases for rejecting a sublease Kendall v Ernest Pestana

A

preserving the image of the building; ensuring a good tenant mix; guarding against a business that will be unsuccessful; differences in profit percentage rent; ability of the tenant to run a successful business; competition with another tenant; alterations in the building structure; disruption to other tenants or to LL

155
Q

Terminating the tenancy

A

expiration; surrender; abandonment; eviction

156
Q

surrender termination of tenancy

A

mutual agreement by LL and T to end the lease

157
Q

Abandonment termination of tenancy

A

T leaves early without justification; with no intention of returning; and without paying further rent; LL has a duty to mitigate damages and try to rent the apartment out as if it were any other apartment

158
Q

Sommer v Kridel

A

duty to mitigate loss after tenant abandonment; will do so by treating the apartment has any other unrented apartment

159
Q

LL options for abandonment

A

terminate the lease or mitigate damages and sue for the remaining rent

160
Q

evicting a term of years tenant

A

good cause; usually a material breach of the lease as defined reasonably in the lease or in local law

161
Q

evicting a periodic tenant/tenant at will

A

common law allowed any reason; modern rule allows any reason that does not violate fair housing and is not a retaliatory eviction; rarely requires good faith

162
Q

retaliatory eviction

A

LL may not retaliate after T complains to govt about mail or conditions materially affecting health or claims discrimination; or a good faith complaint from T to LL; or t is a member of a tenant’s union or equivalent, or has successfully defended a legal action brought by LL within the last six months; requires either but-for or substantial factor causation

163
Q

methods of retaliation by LL

A

increasing rent; decreasing services, eviction; bringing legal action

164
Q

common law eviction procedure

A

self help or suit

165
Q

modern eviction procedure

A

lawsuit only; no self-help

166
Q

Elk Creek Management v Gilbert

A

LL evicted a tenant who noted an electrical issue

167
Q

Berg v Wiley

A

in most jurisdictions the only method of evicting a tenant is through a lawsuit and law enforcement; no self-help

168
Q

land transaction procedure

A

budget and preapproval; contact agent; view properties; negotiate purchase and sale agreement; execute purchase and sale agreement; closing; executory period; recordation

169
Q

statute of frauds

A

required for contracts lasting longer than one year and contracts for the sale of real property inter alia; must be signed by the party against whom enforcement is sought; needs the parties, the price, and a description of the property generally

170
Q

partial peformance exception to SoF

A

oral contract may be enforced if the buyer takes possession and pays at least part of the purchase price or makes improvements to the property

171
Q

Equitable Estoppel Exception to SoF

A

one party acts to his detriment in reasonable reliance on another party’s oral promise and serious injury would result if enforcement is refused. Serious injury is normally the buyer selling another property or the seller has rejected other offers for the disputed property

172
Q

UETA

A

Uniform Electronic Transactions Act; e-signatures suffice for SoF

173
Q

marketable title

A

provision of marketable title is an express or implied condition of the purchase and sale agreement that parties can contract around

174
Q

marketable title standard

A

“one which a reasonably informed individual would accept in the exercise of ordinary prudence”: relatively free from doubt as to its validity; free from encumberances; buyer should be free from fear of litigation

175
Q

hickey v Green

A

example of equitable estopple/reasonable reliance exception to SoF

176
Q

property title

A

legal right and status of the property

177
Q

property deed

A

the actual document of conveyance

178
Q

unmarketable title

A

seller’s property interest is less than what the purport to convey; title is subject to private encumberance; reasonable doubt about either condition

179
Q

marketable title exception

A

some Jx hold marketable title is not required if the buyer has actual knowledge of the encumbrance or the encumbrance is visible

180
Q

warranty of marketable title time period

A

does not apply after closing

181
Q

Lohmeyer v Bower

A

violations of restrictions on a property makes the title unmarktable if it leaves the buyer open to future litigation

182
Q

Equitable Conversion Massachusetts Rule

A

vendor bears the risk of loss before closing

183
Q

equitable conversion traditional rule

A

vendee bears the risk of loss before closing

184
Q

equitable conversion modern/Brush Grocery Kart rule

A

party currently entitled to possession bears the risk of loss

185
Q

Executory period specific performance

A

once the contract reaches the executory period a party can have the court force specific performance

186
Q

Duty to disclose stambovsky (ghost case) approach

A

duty to disclose if a condition has been created by the seller that materially impairs the value of the contract and is within the particular knowledge of the seller OR unlikely to be discovered by a prudent purchaser exercising due care

187
Q

duty to disclose majority approach

A

seller of residential real property is obligated to disclose defects he knows about that materially affect the value of the property and are not known or readily discoverable by the buyer

188
Q

caveat emptor/traditional duty to disclose

A

no duty to disclose unless there is a confidential or fiduciary relationship

189
Q

duty to disclose strawn v canuso

A

a builder/developer of a residential estate or the broker representing it is liable for nondisclosure of off-site physical conditions known to it and unknown and not readily discoverable by the buyer if the conditions affect the habitability, use, or enjoyment of the property

190
Q

strawn v canuso implied warranty of quality

A

a developer of a newly-constructed residential property impliedly warrants that the property is fit for the intended use

191
Q

General Warranty deed

A

protects against defects that arose before or after the seller purchased the property

192
Q

special warranty deed

A

only protects against defects that arose after the seller took possession

193
Q

quitclaim deed

A

no warranties about title

194
Q

Covenants of General/Special Warranty deeds

A

covenant of seisin, covenant against encumbrances, covenant of right to convey, covenant of further assurances, covenant of quiet enjoyment, covenant of warranty

195
Q

covenant of seisin

A

the seller owns the property interest he purports to convey

196
Q

covenant against encumbrances

A

there are no encumbrances on the title other than what is expressly mentioned in the deed

197
Q

covenant of right to convey

A

the grantor has the right to convey the title

198
Q

covenant of warranty

A

the grantor will defend the grantee against claims of superior title

199
Q

covenant of quiet enjoyment

A

grantee’s possession of the property will not be disturbed by anyone holding superior title

200
Q

covenant of further assurances

A

grantor will take all future steps reasonably necessary to cure defects that existed at closing

201
Q

Brown v lober

A

covenant of quiet enjoyment requires an actual adverse claim and does not apply simply because a superior claim exists

202
Q

bona fide purchaser

A

one who gives valuable consideration for property without knowledge of adverse claims

203
Q

gifting and BFP

A

cannot be a BFP based on a gift

204
Q

tract indexes

A

each parcel of land has a particular number and all transaction relating to that parcel are under that number

205
Q

grantor/grantee index

A

most common; names grantor and grantee; instrument; time of recording; book and page; description of land

206
Q

ways of searching title

A

work backwards from latest transaction to the sovereign or find the sovereign and work forward

207
Q

Luthi v Evans BFP and Notice

A

if a party has notice it is not a bfp; mother hubbard clauses are only effective as to the parties to the conveyance and is not sufficient to put subsequent purchasers on notice

208
Q

mother hubbard clauses

A

property is conveyed in very general terms, usually “everything” and normally because of time restrictions such as impending death

209
Q

Who wins in a no recording act jurisdiction

A

first in time to possess

210
Q

winner in a race jurisdiction

A

whoever records first gets the property regardless of notice of prior purchasers

211
Q

winner in a notice jurisdiction

A

the last bona fide purchaser gets the property

212
Q

race-notice winner

A

the subsequent BFP who records first gets the property

213
Q

Shelter rule

A

a BFP can “clear the way” and convey to subsequent parties who are not BFP

214
Q

Zimmer rule (Messersmith v Smith)

A

any problem with a deed is sufficient for the court to remove it from consideration

215
Q

Void deed (majority rule)

A

set aside by the court even if the property has passed to a BFP. A void deed is one that is forged, never delivered, issued to a nonexistent grantee, or obtained by fraud in factum (grantor was unaware he was conveying the deed)

216
Q

voidable deed (majority rule)

A

only set aside if the property has not passed to a BFP. Voidable deed is one by a minor or incapacitated person, those obtained through fraud in inducement, duress, undue influence, mistake, or breach of fiduciary duty

217
Q

Recordation mistakes

A

an instrument is considered recorded when filed with the office and a subsequent purchaser is charged with notice of a misindexed recordation but can sue the recording office

218
Q

Record constructive notice

A

subsequent purchaser is deemed to have notice of any facts that a reasonale physical inspection of the property or a reasonable title search of public records would reveal

219
Q

Inquiry notice

A

notice derived from the SP actual notice or constructive notice of facts which would have caused a reasonable person to make further inquiries and discover

220
Q

title insurance

A

primary modern method and is generally better protection than a title search

221
Q

estoppel by deed

A

if a grantor purports to convey an estate she does not own, then her subsequent acquisition of the property will automatically inure to the benefit of the grantee; most courts only use this against the grantor and a BFP could have superior claim over the grantee; does not usually apply to quitclaim

222
Q

types of easement

A

express easement; implied easement by prior existing use; (implied) easement by necessity; prescriptive easement; easment by estoppel/irrevocable license

223
Q

appurtenant easement

A

pertains to a particular property and cannot be transferred separately from the estate it is tied to

224
Q

easement in gross

A

tied to a particular person rather than the property and modern trend allows full transfer. Common law only allowed transfers of commercial easements

225
Q

Affirmative easement

A

allows the dominant estate to perform an act

226
Q

negative easement

A

prevents the servient estate from performing an act

227
Q

SoF and Easements

A

SoF required for easements; failed attempts at easements create a license instead

228
Q

Express easements

A

explicitly granted in an instrument or expressly reserved by a grantor when transferring property

229
Q

elements for an implied easement by prior existing use

A

severance of title to land in held in common ownership; an existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance; reasonable necessity for that use which usually means utilities or alternate access cannot be obtained without significant expense or labor

230
Q

elements of an easement by necessity

A

severance of title to land held in common ownership which results in loss of access to a parcel. Modern trend is reasonable necessity; common law is strict necessity

231
Q

Berge v Vermont easement by necessity standard

A

lack of reasonably practical access based on scope; frequency; ease

232
Q

Emmanuel v Hernandez

A

implied easement by prior existing use needed to have been created by the original owner when he divided the property

233
Q

elements for a prescriptive easement

A

open and notorious; adverse and hostile (presumed in most states); continuous for the statutory period

234
Q

public easements

A

the government can reserve easements for the public on private property such as shorelines or waterways

235
Q

O’Dell v Stegall

A

failed to acquire a prescriptive easement because of a failure to show who owned the particular piece of land so no adverse and hostile element (specific to WV)

236
Q

elements of easement by estoppel (irrevocable license)

A

a land owner allows someone else to use his land creating a license; the licensee relies in good faith on the license usually by making improvements or by incurring costs; the licensor knows or reasonably should know that such reliance would occur

237
Q

Kienzle v Myers

A

easement by estoppel because the original owners were friends and allowed one to piggyback on her sewer line but the new owners tried to revoke this

238
Q

Transferability of easements

A

appurtenant easements always transfer with the dominant estate and in modern law easements in gross are transferrabl

239
Q

changes in an easement

A

the manner, frequency, and intensity of an easement may change over time to accommodate the normal development of the dominant estate

240
Q

Marcus Cable Associates v Krohn

A

changes to manner, frequency, and intensity are only permissible for the purposes for which the easement was created; court did not allow a cable company to expand an easement originally meant for electricity transfer

241
Q

changing the route of an easement

A

traditional law required both parties to agree; restatement approach is that the servient can change it if it does not significantly lessen the utility of the easement or increase the burden on the easement holder or frustrate the purpose for which the easement was created

242
Q

duration of easements

A

perpetual; term of years easement; easement determinable; easement subject to condition subsequent; easement subject to executory limitation

243
Q

terminating easements

A

expiration of a term; dominant estate releases servient estate in an SOF writing; estoppel; merger; condemnation; misuse; prescription; abandonment

244
Q

releasing an easement by estoppel

A

the servient estate changes their position in reasonable reliance on a statement from the dominant estate of termination of the easement

245
Q

release of easement by merger

A

if someone owns both the dominant and servient estate the easement is terminated even if one property is conveyed to someone else

246
Q

release of easement by condemnation

A

if the servient estate is condemned any easement is terminated

247
Q

release of easement by misuse

A

serious misuse of an easement can cause a court to nullify it in some jurisdictions

248
Q

release of easement by prescription

A

the reverse of an easement by prescription

249
Q

release of easement by abandonment

A

nonuse of the easement plus acts by the easement holder manifesting either a present intent to relinquish the easement or to use it for a purpose inconsistent with its future existence

250
Q

Preseault v US

A

abandonment of an easement requires more than nonuse it also requires manifestation of an intent to relinquish or to misuse

251
Q

Traditional protections in a negative easement

A

light; water; air; land; view

252
Q

real covenant required for the burden to run

A

statute of frauds; intent to bind successors; touches and concerns the land; notice; horizontal privity; vertical privity

253
Q

real covenant required for the benefit to run

A

statute of frauds; intent to bind successors; touch and concern; vertical privity

254
Q

real covenant touch and concern the land

A

connected with the use and enjoyment of the land; so relatd as to confer a benefit; a promise to do or refrain from doing a physical act upon the land

255
Q

horizontal privity real covenants

A

mutual or successive interest in land (majority) or no requirement (minority)

256
Q

vertical privity

A

majority no longer requires; minority holds that the successor must inherit the entire estate

257
Q

running equitable servitudes burden runs requirements

A

statute of frauds or common development plan; intent to bind successors; touch and concern; notice

258
Q

running equitable servitude benefit runs requirements

A

SoF or common plan; intent to bind successors; touch and concern

259
Q

defenses to equitable servitudes

A

person seeking enforcement is violating a similar restriction on his own land; benefited party acquiesced in a violation of the servitude by one burdened party; benefited party acted in a way that a reasonable person would believe the covenant had been waived or abandoned; benefited party failed to bring suit against the violator within a reasonable time (laches); neighborhood has changed so much that enforcement would be inequitable

260
Q

restatement defenses to servitudes

A

unenforceable if illegal, unconstitutional, or violates public policy. Public policy factors: arbitrary spiteful or capricious; unreasonably burdens a constitutional right; imposes an unreasonable restraint on alienation; unreasonable restraint on trade or competition; is unconscionable

261
Q

license

A

special permission to do something on or with another’s property that would constitute a tort or trespass if not for the license; can be revoked at any time; often created from failed easement attempts

262
Q

profit

A

allows the holder to enter land he does not own and possess and remove resources from it

263
Q

nuisance reasonableness standard

A

restatement: gravity of harm vs utility of conduct; some jx only look at the gravity of the harm

264
Q

nuisance reasonableness standard restatement full

A

gravity of the harm outweighs the utility of the actor’s conduct or the harm caused by the conduct is serious and the financial burden of compensating for this and other similar harms would not make the continuation of the conduct not feasible

265
Q

terminating an equitable servitude

A

written release; merger; condemnation

266
Q

factors for harm in nuisance

A

extent; character; social value the law attaches to the use and enjoyment that is invaded; suitability of that use and enjoyment to the locality; burden of avoiding the harm imposed on the person harmed

267
Q

Special cases for nuisance unreasonableness

A

malicious or indecent interference or when the use and enjoyment is well suited and the actor’s conduct is not well suited

268
Q

Limits of using torts to solve environmental problems

A

environmental harms are often significant only in the aggregate; cost of lawsuits; lack of expertise by factfinders; issues of causation; piecemeal remedies lack breadth and consistency; retrospective remedies

269
Q

common law public trust doctrine

A

originally only concerned navigable waterways and the land underneath them and was interested in protecting commerce and fisheries

270
Q

Mark v Whitney public trust doctrine

A

expands protection to tidelands because of ecological and scientific importance and because they provide food for birds and wildlife that enhance the beauty of the surrounding area

271
Q

Audoban public trust doctrine

A

expands protection to non-navigable waterways when the use would interfere with a navigable waterway; protects recreational and ecological intersts

272
Q

General approaches to zoning

A

comprehensive plan with a statement of objectives and standards for future developments; some only create maps and ordinances

273
Q

Cumulative Zoning

A

areas are ranked from most restrictive to least restrictive; least restrictive allows all uses while most restrictive is usually limited to single-family residential dwellings

274
Q

Exclusive Zoning

A

the use of each district is controlled; protects desirable specialized concentrations of uses from undesirable intrusive uses

275
Q

Zoning constitutionality standard from Village of Euclid v Ambler Realty

A

only unconstitutional if clearly and arbitrarily unreasonable, having no substantial relation to the public health, safety, morals, or general welfare

276
Q

Assumptions of zoning seen in Euclid v Ambler

A

separation of use is desirable; single-family residence is the most important use; low-density development is desirable; residents will primarily travel by car; development will be on a lot-by-lot basis; once zoning is established there will be little to no need to change it in the future

277
Q

Amortization

A

requiring termination of a nonconforming use over a reasonable period of time

278
Q

zoning abandonment

A

non-use by possessor for a specific period of time

279
Q

Changes in zoning during construction

A

the right to use is vested if permits have been acquired and there has been substantial expenditure in good faith reliance

280
Q

Methods of ending nonconforming uses in zoning

A

amortization; abandonment; eminent domain; barring rebuilding after the destruction of the structure housing the use; ending via nuisance suit; encouraging abandonment by limiting expansion

281
Q

Rezoning majority rule

A

rezoning must be for public benefit and must not harm the goals of a comprehensive plan

282
Q

rezoning minority rule

A

rezoning must show that the rezoning is either necessary to correct a mistake or necessary to adapt to substantial changes in neighborhood construction

283
Q

Variance in zoning

A

allowing a specific property not to conform based on the nature of that property when; owing to special conditions a literal enforcement of the provisions will result in unneccessary hardship

284
Q

special exceptions in zoning

A

the use is already permitted in the zone but only if certain conditions specified in th zoning ordinance are met; usually applies to airports or junkyards or landfills or office buildings

285
Q

illinois central rr v illinois

A

rebirth of public trust doctrine in the US, held that the legislature could not sell some lands

286
Q

nonconforming use intensification Trip Associates v Baltimore

A

intensification is permitted so long as the nature and character of the use is the same and there is no physical expansion or extension

287
Q

constitutional protections and limits for property

A

3rd amentment; 4th amendment; 5th amendment takings; 13th and 14th amendment discrimination; A4S3 federal power to regulate federal property; A1S8 copyright and patent power

288
Q

constitutional supports of slavery

A

3/5ths compromise; no protection for fugitive slaves in free states; no power to ban importation until 1808

289
Q

Dred Scott v Sandford

A

a slave cannot flee a slave state and become free by entering a free state; court overturns the missouri compromise; one of the reasons for the civil war

290
Q

Continuing subjugation efforts through property law

A

“Black Codes” post Civil War; Jim Crow laws; racial and country of origin restrictions on land ownership in the west; redlining; disparate enforcement; racially restrictive covenants

291
Q

buchanan v warley

A

prohibite racial zoning

292
Q

corrigan v buckley

A

court upholds private racially restrictive covenants

293
Q

shelley v Kraemer

A

the courts cannot enforce a racially restrictive covenant as this violates the 14th amendment

294
Q

Jones v Mayer

A

an interracial couple was rejected from buying a house because one was black; Court expressly rejects Plessy v Ferguson; “badges of slavery” can be obliterated by Congress under the 13th amendment

295
Q

takings clause

A

nor shall private property be taken for public use without just compensation

296
Q

eminent domain issues

A

when has the government “taken” your property; what is a public use; what is just compensation

297
Q

public use general standard

A

so long as it is rationally related to a conceivable public purpose; forbids transfers intended to confer benefits on particular favored private entities and with only incidental or pretextual public interests

298
Q

Order of operations for a takings question

A

physcal taking (loretto and cedar point) > Lucas > Penn Central; if exaction then Nolan and Dolan tests

299
Q

Murr v Wisconsin

A

the “whole property” denominator considers whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel or as separate tracts. Consider state and local law; physical characteristics of the land; prospective value of the regulated land

300
Q

Reciprocity of Advantage

A

the property-owners get some benefit from the regulation and makes it more likely that a taking will be upheld

301
Q

Lucas test

A

a regulation which deprives land of all economic or productive use is a taking unless the regulation does no more than duplicate the result that could have been achieved under property laws and nuisance (or pubic trust doctrine(

302
Q

Lucas law minimum requirement

A

94/95% is not sufficient for the Lucas holding

303
Q

Loretto Rule:

A

when the character of the governmental action is a permanent physical occupation of the property by the government or a third party it is a per se taking

304
Q

Cedar Point Nursery rules

A

government authorized invasions of property are physical takings; exceptions for trespass; conditioned access; backround restrictions. Permanent or temporary does not matter but isolated invasions are analyzed as torts; also exceptions for government inspections with exactions

305
Q

Penn Central Balancing test

A

economic impact of the regulation; extent the regulation has interfered with distinct, reasonable, investment-backed expectations; character of the governmental action

306
Q

penn central economic impact of the regulation factors

A

loss of market value; consider offsets; reciprocity of the benefit can mitigate takings; not determinative

307
Q

penn central extent the regulation has interfered with expectations factors

A

what were the expectations when the property was purchased; maintaining existing use; notice of existing restrictions would not necessarily bar a takings claim but does factor

308
Q

penn central character of the government action factors

A

physical invasion more likely to result in a taking determination; helps avoid a determination of a taking if it produces a widespread public benefit; eliminates a noxious use; applicable to all similarly situated properties

309
Q

takings question just compensation

A

either the government and the owner negotiate or the owner sues in court disputing the fair market value

310
Q

Kelo v City of New London

A

very controversial decision by SCOTUS and abrogated by many state statutes. If the plan as a whole serves a public purpose, even though not for literaly public use, it will suffice.

311
Q

exaction as a taking

A

an exaction is only a taking if there is no essential nexus between the exaction and a legitimate state interest or the exaction was not roughly proportional to the project’s impact

Property is BS (2 decks)

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