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
2
Q
Capture of wild animal
A
Pierson v Post: actual bodily seizure, intentional trapping, mortal wounding and pursuit
3
Q
General Rule of Capture
A
to claim possession one needs clear and certain control
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
5
Q
Right of Publicity Case
A
White v Samsung, wheel of fortune lady likeness
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
7
Q
Fully inalienable property
A
votes; pensions; jobs; people
8
Q
Market-inalienable property
A
organs; babies; sex; fish and game
9
Q
Only market-alienable property
A
Basically trust assets
10
Q
Conversion Case
A
Moore v Regents of UC
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
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
13
Q
Common law trespass elements
A
unprivileged physical invasion of property possessed by another; must be intentional in almost all states
14
Q
Defenses to Trespass
A
Privilege or necessity; permission
15
Q
Limits to Trespass
A
Civic and public rights
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
17
Q
Common law nuisance elements
A
intentional, nontrespassory, unreasonable, and substantial interference with P’s use and enjoyment of the land
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
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
20
Q
sic utere rule
A
use your own things and do not injure the things of others
21
Q
right to use (sundown v King)
A
hotel spite fence case
22
Q
Restatement test for unreasonable intrusion in nuisance
A
the gravity of the harm outweighs the utility of the actor’s conduct
23
Q
Non-restatement/minority test for unreasonableness in nuisance
A
only examines the gravity of the harm
24
Q
severance from real property
A
removing things from real property and making them into personal property
25
Fixtures on real property
personal property that is attached to the real property, such as a lamppost
26
justifications for adverse possession
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
27
elements of adverse possession
open and notorious; continuous for the statutory period; exclusive; actual; adverse and hostile
28
Open and notorious use in adverse possession
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
29
Continuous requirements for adverse possession
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
30
Exclusive requirements for adverse possession
only the claimant is exercising control over the property
31
Actual use requirement for AP
claimant is using the land as a reasonable owner would; does not have to be as the actual owner would
32
tioga coal v supermarkets general
hostility requirement will be met regardless of subjective state of mind so long as the other requirements are met (majority of jx)
33
Adverse and hostile mental state requirements for AP
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
34
tacking in AP
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
35
disability and AP
mental disability extends the statutory period in most states; usually from the time the disability occurs to when or if it ends
36
government and AP
generally no AP for public land unless in some states it is used for proprietary or non-public purpose
37
Partial interests and AP
adverse possessor only gains possession over the existing interest such as a life estate
38
Gurwit v Kannatzer
farmland-ish case, need to look at how a reasonable owner would use the land to determine actual use
39
Van Valkenburgh v Lutz
a person needs clear and convincing proof of AP, must actually be adverse to the owner's possession
40
Fulkerson v Van Buren
use must be distinct and the adverse possessor cannot recognize the right of someone else
41
Howard v Kunto
tacking and privity
42
Limits of Vertical Ownership latin
ad coelum et ad inferos
43
US v Causby
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
44
Chance v BP Chemicals
extends vertical limits to reasonable possible use below the surface, some kind of damage to surface must be shown for deep subsurface intrusions
45
Lateral support
right to have your land in its natural condition supported by adjacent parcels of land
46
subjacent support
right to have land in its natural condition supported by the earth immediately below it
47
Riparianism water rights
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
48
Riparianism reasonable use doctrine
reasonable use of water on the land; reasonable method of use; reasonale method of diversion
49
Prior Appropriation Water rights
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
50
Groundwater Absolute Ownership
unlimited right to use groundwater through a well on your property; only Texas does this
51
Reasonable use approach for groundwater
reasonable purpose; suitability; extent and amount of harm; benefits of the use; necessity of the amount and manner of use; misc factors
52
Correlative groundwater rights
overlying owners share during shortages but otherwise non-overlying owners can use so long as it does not interfere with use by overlying owners
53
environmental tragedy of the commons
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
54
basic rule of lost property
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
55
Replevin
seeking the return of the item itself
56
trover
seeking monetary damages equal to the value of the item
57
Armory v Delamirie
chimney sweep kid case
58
Hannah v Peel exceptions to finders keepers
a lost item goes to the finder unless the item was buried on real property or the person was invited in
59
mislaid items
willfully placed there; the person had the intent to return for it; the person forgot where it was
60
lost items
not voluntarily placed in the location; owner still has the intent to possess it; owner does not know where it is
61
abandoned items
willfully placed in the location; owner has no intent to return for it; owner intends to relinquish ownership
62
treasure trove items
the owner concealed the property in a hidden place and there is a substantial gap in time
63
Mislaid items McAvoy v Medina
mislaid items should remain with the owner/user of the locus in quo
64
Treasure Trove Rule Benjamin v Lindner
the property should be old enough that the owner is likely dead or definitively not looking for it
65
Agent rule for found property (South Staffordshire)
item goes to the employer of the agent
66
Found Buried items and rentals
item goes to the owner not the renter (Elwes)
67
types of gifts
inter vivos; causa mortis; testamentary
68
Inter vivos gift elements
immediate donative intent; delivery; acceptance
69
types of gift delivery
actual; constructive; symbolic
70
constructive delivery gifts
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
71
Symbolic delivery of gifts
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
72
Gruen v Gruen
the father donated an immediate remainder interest in the painting, making it an inter vivos gift and not testamentary
73
causa mortis gift elements
given in fear of impending death but is revocable if the donor survives, revokes before death, or dies from an unanticipated cause
74
Brind v Intl trust
a causa mortis gift is automatically revoked if the person does not die of the anticipated cause
75
elements of a deed
written document that is a conveyance or grant of alienable property from a grantor to a grantee
76
elements of a will
passed with death, is devisable/devises to the recipient, must satisfy statute of wills
77
basics of intestate succession
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
78
fee simple absolute
conveys all interests, magic words to A and his heirs, alienable devisable and descendible, default presumption in modern jurisdictions
79
Nemo dat rule
cannot give more of an interest than you have
80
life estate
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
81
pur autre vie
if A sells his life estate to B, B's interest terminates when A dies
82
Fee tail
from A to B and the heirs of his body; grantor has a possibility of reverter; property reverts if there are no remaining heirs
83
modern fee tail treatments
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
84
disentangling a fee tail
A can convey the fee tail to B and then B conveys it back as a fee simple;
85
Estates and Intent (White v Brown)
look at the document and use the expressed intent; if it is ambiguous presume a fee simple
86
Woodrick v Wood
if someone has a life estate they can alter the property so long as these alterations are beneficial to the value of the property
87
Types of waste
voluntary; permissive; ameliorative
88
Voluntary waste
a voluntary action that decreases the value of the property
89
permissive waste
lack of action leads to deterioration of the value of the property
90
ameliorative waste
act increases the value of the property; generally permitted in most jurisdictions
91
leasehold
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
92
Types of defeasible fees
fee simple determinable; fee simple subject to condition subsequent; fee simple subject to executory limitation
93
Fee Simple Determinable
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
94
FSD magic words
so long as; unti; while; during
95
Fee simple subject to condition subsequent
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
96
FSSCS magic words
provided that; but if; on the condition that
97
Fee Simple Subject to an Executory Limitation
interest transfers to a third party if a condition occurs; fully alienable devisable descendible
98
Reversion Interest
transferor conveys a lesser quantum than what they own
99
possibility of reverter
retained by transferor when conveying an FSD
100
right of entry
retained by a transferor who creates an FSSCS
101
Remainder interest
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
102
executory interests
future interest in a transferee that must divest a prior interest in order to become possessory
103
springing executory interest
takes from the original transferor
104
shifting executory interest
takes from the transferee
105
indefeasibly vested remainder
created in an ascertainable person and not subject to condition precedent other than the natural termination of the estate
106
vested remainder subject to divestment
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
107
Vested remainder subject to open
meets vested remainder requirements but is granted to a class of people that could expand
108
contingent remainder
any remainder that is either not vested in an ascertainable person or is subject to a condition precedent
109
Rule Against Perpetuities
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
110
What RAP applies to
contingent remainders, executory interests, and vested remainders subject to open
111
Only valid restraints on alienation
must be partial restraints and reasonable as to duration, scope, and purpose
112
Mahrenholz v County Board of Trustees
if the language is ambiguous, general preference for FSSCS; reversionary interest cannot be transferred
113
Metropolitan Park District v Ridley
right to entry is limited to a reasonable period after notice of the occurrence of the condition
114
Jee v Audley
cannot create a fee tail for personal property; RAP analysis hinges on what is technically possible no matter how unlikely it may be
115
Tenancy in Common
each tenant has an undivided fractional interest in the whole; each has the right to use and possess the whole; transferable
116
Joint tenancy
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
117
four unities for joint tenancy
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
118
tenancy by the entirety
only for married couples; cannot be severed unilaterally; only ended by death, divorce, or bilateral agreement, otherwise the same as a JT
119
severing a joint tenancy
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
120
partition of a joint tenancy types
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
121
Ark land v Harper partition rules
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)
122
Tenhet v Boswell
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
123
General cotenant rights and duties
each tenant is responsible for his pro rata share of operating and maintenance expenses such as mortgage, tax, insurance
124
Improvement expenses for cotenants
reimbursed upon sale to the tenant who paid for the improvement
125
contribution action in cotenancy
one cotenant seeks reimbursement from others for expenses she has paid towards the operation or maintenance of the property
126
Accounting action in cotenancy
a cotenant seeks to obtain his share of the rents and profits generated by the property
127
Ouster and cotenancy
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
Cotenancy rent no ouster
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
Esteves v Esteves
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
fair housing act
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
Exceptions to the Fair Housing Act
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
housing discrimination burden shifting framework
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
Neithamer v Brenneman Property
gay man was rejected under the pretext of bad credit despite having guarantors and offering to prepay, tried to allege discrimination
134
common law tenant selection rule
can reject any tenant for any reason
135
modern tenant selection rule
limited by various civil rights statutes
136
term of years tenancy
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
periodic tenancy
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
Tenancy at will
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
tenancy at sufferance
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
lease analysis steps
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
delivery of possession american rule
LL must deliver the legal right to possession; tenant has to evict a holdover and collects damages
142
delivery of possession english rule
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
Keydata corp v us
case example comparing the english and american rules for delivery of possesion;
144
constructive eviction doctrine
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
Omissions sufficient for constructive eviction
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
implied warranty of habitability
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
Wade v Jobe
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
Assignment of a lease
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
JMB Properties v Paolucci
must vacate the premises within a reasonable time to succeed in a constructive eviction suit
150
sublease
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
assignment vs sublease Ernst v Conditt
if t1 retains a right to reentry or intends to retain one then it is a sublease
152
Novation
initial lease is void; t2 and LL create a new lease
153
standards for denying a sublease or assignment
LL has sole discretion; LL can reject for reasonable reasons; silent consent clause majority rule is reasonableness but common law is sole discretion
154
Reasonable bases for rejecting a sublease Kendall v Ernest Pestana
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
Terminating the tenancy
expiration; surrender; abandonment; eviction
156
surrender termination of tenancy
mutual agreement by LL and T to end the lease
157
Abandonment termination of tenancy
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
Sommer v Kridel
duty to mitigate loss after tenant abandonment; will do so by treating the apartment has any other unrented apartment
159
LL options for abandonment
terminate the lease or mitigate damages and sue for the remaining rent
160
evicting a term of years tenant
good cause; usually a material breach of the lease as defined reasonably in the lease or in local law
161
evicting a periodic tenant/tenant at will
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
retaliatory eviction
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
methods of retaliation by LL
increasing rent; decreasing services, eviction; bringing legal action
164
common law eviction procedure
self help or suit
165
modern eviction procedure
lawsuit only; no self-help
166
Elk Creek Management v Gilbert
LL evicted a tenant who noted an electrical issue
167
Berg v Wiley
in most jurisdictions the only method of evicting a tenant is through a lawsuit and law enforcement; no self-help
168
land transaction procedure
budget and preapproval; contact agent; view properties; negotiate purchase and sale agreement; execute purchase and sale agreement; closing; executory period; recordation
169
statute of frauds
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
partial peformance exception to SoF
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
Equitable Estoppel Exception to SoF
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
UETA
Uniform Electronic Transactions Act; e-signatures suffice for SoF
173
marketable title
provision of marketable title is an express or implied condition of the purchase and sale agreement that parties can contract around
174
marketable title standard
"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
hickey v Green
example of equitable estopple/reasonable reliance exception to SoF
176
property title
legal right and status of the property
177
property deed
the actual document of conveyance
178
unmarketable title
seller's property interest is less than what the purport to convey; title is subject to private encumberance; reasonable doubt about either condition
179
marketable title exception
some Jx hold marketable title is not required if the buyer has actual knowledge of the encumbrance or the encumbrance is visible
180
warranty of marketable title time period
does not apply after closing
181
Lohmeyer v Bower
violations of restrictions on a property makes the title unmarktable if it leaves the buyer open to future litigation
182
Equitable Conversion Massachusetts Rule
vendor bears the risk of loss before closing
183
equitable conversion traditional rule
vendee bears the risk of loss before closing
184
equitable conversion modern/Brush Grocery Kart rule
party currently entitled to possession bears the risk of loss
185
Executory period specific performance
once the contract reaches the executory period a party can have the court force specific performance
186
Duty to disclose stambovsky (ghost case) approach
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
duty to disclose majority approach
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
caveat emptor/traditional duty to disclose
no duty to disclose unless there is a confidential or fiduciary relationship
189
duty to disclose strawn v canuso
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
strawn v canuso implied warranty of quality
a developer of a newly-constructed residential property impliedly warrants that the property is fit for the intended use
191
General Warranty deed
protects against defects that arose before or after the seller purchased the property
192
special warranty deed
only protects against defects that arose after the seller took possession
193
quitclaim deed
no warranties about title
194
Covenants of General/Special Warranty deeds
covenant of seisin, covenant against encumbrances, covenant of right to convey, covenant of further assurances, covenant of quiet enjoyment, covenant of warranty
195
covenant of seisin
the seller owns the property interest he purports to convey
196
covenant against encumbrances
there are no encumbrances on the title other than what is expressly mentioned in the deed
197
covenant of right to convey
the grantor has the right to convey the title
198
covenant of warranty
the grantor will defend the grantee against claims of superior title
199
covenant of quiet enjoyment
grantee's possession of the property will not be disturbed by anyone holding superior title
200
covenant of further assurances
grantor will take all future steps reasonably necessary to cure defects that existed at closing
201
Brown v lober
covenant of quiet enjoyment requires an actual adverse claim and does not apply simply because a superior claim exists
202
bona fide purchaser
one who gives valuable consideration for property without knowledge of adverse claims
203
gifting and BFP
cannot be a BFP based on a gift
204
tract indexes
each parcel of land has a particular number and all transaction relating to that parcel are under that number
205
grantor/grantee index
most common; names grantor and grantee; instrument; time of recording; book and page; description of land
206
ways of searching title
work backwards from latest transaction to the sovereign or find the sovereign and work forward
207
Luthi v Evans BFP and Notice
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
mother hubbard clauses
property is conveyed in very general terms, usually "everything" and normally because of time restrictions such as impending death
209
Who wins in a no recording act jurisdiction
first in time to possess
210
winner in a race jurisdiction
whoever records first gets the property regardless of notice of prior purchasers
211
winner in a notice jurisdiction
the last bona fide purchaser gets the property
212
race-notice winner
the subsequent BFP who records first gets the property
213
Shelter rule
a BFP can "clear the way" and convey to subsequent parties who are not BFP
214
Zimmer rule (Messersmith v Smith)
any problem with a deed is sufficient for the court to remove it from consideration
215
Void deed (majority rule)
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
voidable deed (majority rule)
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
Recordation mistakes
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
Record constructive notice
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
Inquiry notice
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
title insurance
primary modern method and is generally better protection than a title search
221
estoppel by deed
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
types of easement
express easement; implied easement by prior existing use; (implied) easement by necessity; prescriptive easement; easment by estoppel/irrevocable license
223
appurtenant easement
pertains to a particular property and cannot be transferred separately from the estate it is tied to
224
easement in gross
tied to a particular person rather than the property and modern trend allows full transfer. Common law only allowed transfers of commercial easements
225
Affirmative easement
allows the dominant estate to perform an act
226
negative easement
prevents the servient estate from performing an act
227
SoF and Easements
SoF required for easements; failed attempts at easements create a license instead
228
Express easements
explicitly granted in an instrument or expressly reserved by a grantor when transferring property
229
elements for an implied easement by prior existing use
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
elements of an easement by necessity
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
Berge v Vermont easement by necessity standard
lack of reasonably practical access based on scope; frequency; ease
232
Emmanuel v Hernandez
implied easement by prior existing use needed to have been created by the original owner when he divided the property
233
elements for a prescriptive easement
open and notorious; adverse and hostile (presumed in most states); continuous for the statutory period
234
public easements
the government can reserve easements for the public on private property such as shorelines or waterways
235
O'Dell v Stegall
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
elements of easement by estoppel (irrevocable license)
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
Kienzle v Myers
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
Transferability of easements
appurtenant easements always transfer with the dominant estate and in modern law easements in gross are transferrabl
239
changes in an easement
the manner, frequency, and intensity of an easement may change over time to accommodate the normal development of the dominant estate
240
Marcus Cable Associates v Krohn
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
changing the route of an easement
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
duration of easements
perpetual; term of years easement; easement determinable; easement subject to condition subsequent; easement subject to executory limitation
243
terminating easements
expiration of a term; dominant estate releases servient estate in an SOF writing; estoppel; merger; condemnation; misuse; prescription; abandonment
244
releasing an easement by estoppel
the servient estate changes their position in reasonable reliance on a statement from the dominant estate of termination of the easement
245
release of easement by merger
if someone owns both the dominant and servient estate the easement is terminated even if one property is conveyed to someone else
246
release of easement by condemnation
if the servient estate is condemned any easement is terminated
247
release of easement by misuse
serious misuse of an easement can cause a court to nullify it in some jurisdictions
248
release of easement by prescription
the reverse of an easement by prescription
249
release of easement by abandonment
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
Preseault v US
abandonment of an easement requires more than nonuse it also requires manifestation of an intent to relinquish or to misuse
251
Traditional protections in a negative easement
light; water; air; land; view
252
real covenant required for the burden to run
statute of frauds; intent to bind successors; touches and concerns the land; notice; horizontal privity; vertical privity
253
real covenant required for the benefit to run
statute of frauds; intent to bind successors; touch and concern; vertical privity
254
real covenant touch and concern the land
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
horizontal privity real covenants
mutual or successive interest in land (majority) or no requirement (minority)
256
vertical privity
majority no longer requires; minority holds that the successor must inherit the entire estate
257
running equitable servitudes burden runs requirements
statute of frauds or common development plan; intent to bind successors; touch and concern; notice
258
running equitable servitude benefit runs requirements
SoF or common plan; intent to bind successors; touch and concern
259
defenses to equitable servitudes
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
restatement defenses to servitudes
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
license
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
profit
allows the holder to enter land he does not own and possess and remove resources from it
263
nuisance reasonableness standard
restatement: gravity of harm vs utility of conduct; some jx only look at the gravity of the harm
264
nuisance reasonableness standard restatement full
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
terminating an equitable servitude
written release; merger; condemnation
266
factors for harm in nuisance
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
Special cases for nuisance unreasonableness
malicious or indecent interference or when the use and enjoyment is well suited and the actor's conduct is not well suited
268
Limits of using torts to solve environmental problems
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
common law public trust doctrine
originally only concerned navigable waterways and the land underneath them and was interested in protecting commerce and fisheries
270
Mark v Whitney public trust doctrine
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
Audoban public trust doctrine
expands protection to non-navigable waterways when the use would interfere with a navigable waterway; protects recreational and ecological intersts
272
General approaches to zoning
comprehensive plan with a statement of objectives and standards for future developments; some only create maps and ordinances
273
Cumulative Zoning
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
Exclusive Zoning
the use of each district is controlled; protects desirable specialized concentrations of uses from undesirable intrusive uses
275
Zoning constitutionality standard from Village of Euclid v Ambler Realty
only unconstitutional if clearly and arbitrarily unreasonable, having no substantial relation to the public health, safety, morals, or general welfare
276
Assumptions of zoning seen in Euclid v Ambler
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
Amortization
requiring termination of a nonconforming use over a reasonable period of time
278
zoning abandonment
non-use by possessor for a specific period of time
279
Changes in zoning during construction
the right to use is vested if permits have been acquired and there has been substantial expenditure in good faith reliance
280
Methods of ending nonconforming uses in zoning
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
Rezoning majority rule
rezoning must be for public benefit and must not harm the goals of a comprehensive plan
282
rezoning minority rule
rezoning must show that the rezoning is either necessary to correct a mistake or necessary to adapt to substantial changes in neighborhood construction
283
Variance in zoning
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
special exceptions in zoning
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
illinois central rr v illinois
rebirth of public trust doctrine in the US, held that the legislature could not sell some lands
286
nonconforming use intensification Trip Associates v Baltimore
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
constitutional protections and limits for property
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
constitutional supports of slavery
3/5ths compromise; no protection for fugitive slaves in free states; no power to ban importation until 1808
289
Dred Scott v Sandford
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
Continuing subjugation efforts through property law
"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
buchanan v warley
prohibite racial zoning
292
corrigan v buckley
court upholds private racially restrictive covenants
293
shelley v Kraemer
the courts cannot enforce a racially restrictive covenant as this violates the 14th amendment
294
Jones v Mayer
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
takings clause
nor shall private property be taken for public use without just compensation
296
eminent domain issues
when has the government "taken" your property; what is a public use; what is just compensation
297
public use general standard
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
Order of operations for a takings question
physcal taking (loretto and cedar point) > Lucas > Penn Central; if exaction then Nolan and Dolan tests
299
Murr v Wisconsin
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
Reciprocity of Advantage
the property-owners get some benefit from the regulation and makes it more likely that a taking will be upheld
301
Lucas test
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
Lucas law minimum requirement
94/95% is not sufficient for the Lucas holding
303
Loretto Rule:
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
Cedar Point Nursery rules
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
Penn Central Balancing test
economic impact of the regulation; extent the regulation has interfered with distinct, reasonable, investment-backed expectations; character of the governmental action
306
penn central economic impact of the regulation factors
loss of market value; consider offsets; reciprocity of the benefit can mitigate takings; not determinative
307
penn central extent the regulation has interfered with expectations factors
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
penn central character of the government action factors
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
takings question just compensation
either the government and the owner negotiate or the owner sues in court disputing the fair market value
310
Kelo v City of New London
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
exaction as a taking
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
