Most Likely on Essay Flashcards
Quitclaim Deed
The grantee gets whatever the grantor has.
General Warranty Deed
Include:
- Covenant of seisin
- Right to conveyance
- Encumbrances
- Quiet Enjoyment
- Warranty
- Further assurances
Special Warranty Deed
Same as general, but promises to warrant and defend the title only against claims arising by, through, or under the grantor. It does not warrant against defects in the title that existed before the grantor was deeded the property.
Easement
An easement is the grant of a nonpossessory property interest who entitles its holder to enjoyment or use of another’s parcel
Type of Easements
Affirmative: the holder is allowed to make affirmative use of the servient land
Negative: entitles the holder to compel the possessor of the servient tenement to refrain from engaging in the activity on the servient estate …. NOW KNOWN AS RESTRICTIVE COVENANTS.
Appurtenant
When it benefits the holder in his physical use or enjoyment of another tract of land.
Two tracts: dominant and servient.
Dominant: estate benefited by the easement
Servient: estate subject to the easement right
** Passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance
The burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual or constructive notice of the easement.
In Gross
The holder of the easement has a right to use the servient estate independent of his possession of another tract of land; the easement benefits the holder rather than land.
Personal is NOT transferable but for economic use it is transferable.
Creation of Easements
Express (grant)
Implicated – necessity, quasi-easement, and plat
Prescription
Express (grant)
Must be in writing & signed by the holder (statute of frauds) … if not is SOF does not need writing.
Must comply with all formal requisites of a deed
Implication by Necessity
Arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line
Quasi-Easement (prior use)
Unity of ownership
Part of the parcel is conveyed to the grantee
The parcel that is conveyed is the dominant estate
Reasonably necessary use of the easement OR convenient use
Apparent usage (obvious)
Termination of Easements
Stated Conditions Unity of Ownership (Merger) Release Abandonment Estoppel Prescription Necessity Condemnation and Destruction
Stated Condition
The easement grant states when or under what conditions the easement will terminate
Unity of Ownership (Merger)
If the same person acquires both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed.
Release
An easement (including in gross) can be terminated by a deed of release from the owner of the easement to the owner of the servient estate.
Abandonment
Demonstrates by physical action an intent to permanently abandon the easement … remember non-use is not enough.
Oral expressions combined with a long period of nonuse may be sufficient.
Estoppel
If the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel.
Prescription
Adverse, continuous interruption of the use for the prescriptive period
Necessity regarding easement & when does it end
Easements created by necessity expire as soon as the necessity ends
Condemnation & Destruction
Extinguishes all easements = involuntary destruction, but not voluntary.
Licenses
NOT an interest in the land; a privilege, that is revocable at the will of the licensor.
Personal to the licensee and thus, inalienable
Attempt to transfer = revocation
What happens when there is a FAILED attempt to create an easement?
Results in a license. If a grantor ORALLY grants an easement for more than 1 year it does not meet the requirements for the SOF and therefore is not enforceable as an easement, but is as a license.
A license becomes irrevocable when?
Estoppel: if a licensee invests a substantial amount of money or labor in reliance on the license, the licensor is estopped to revoke.
License coupled with interest: irrevocable as long as the interest lasts
Covenants Running w/the Land (Real Covenants)
Normally found in a deed, a written promise to do something on the land or a promise to not do something on the land.
Run with the land … subsequent owners may enforce or be burdened by the covenants
What are the requirements for a burden to run in real covenants?
Intent Notice Horizontal Privity Vertical Privity Touch & Concern
Intent
The covenanting parties must have intended the successors in interest to the covenantor be bound by the terms of the covenant.
Different types of notice?
Actual, inquiry, or record notice (constructive)
Horizontal Privity
At the time the promisor entered in the covenant with the promisee, the two must have shared some interest in the land independent of the covenant
Vertical Privity
The successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time he made the covenant
Touch & Concern
Neg. covenants T&C the land if they restrict the holder of the sevient estate in his use of that parcel of land
Aff. covenants T&C the land if they require the holder of the servient estate to do something, which increases his obligations in connection with his enjoyment of the land.
What are the requirements for the BENEFIT to run?
Intent, vertical privity and T&C, are the three requirements the promisee’s successor in interest needs to enforce the covenant.
How to terminate a real covenant?
Release, merger, or condemnation.
Equitable Servitudes
A covenant, that regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant.
Created: by covenants contained in writing (SOF). Exception – negative equitable servitudes.
Common Scheme
Reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision began, the developer had a plan that all parcel would be subject to the restriction.
Scheme evidence by: recorded plat; general pattern of restrictions; oral representations
Benefit to run (ES)
Original parties intended and T&C
Burden to run (ES)
Intent, notice, and T&C
What does it mean that the state is a notice statute?
Subsequent BFP (for value without notice)
Race
Grantee who records first prevails
Race-Notice
Subsequent BFP AND who records first prevails
“No conveyance/mortgage of an interest in land is valid against any SUBSEQUENT PURCHASER WITH VALUE without notice thereof whose conveyance is first recorded
Joint Tenancy
Each tenant hast an undivided interest in the whole estate, and the surviving co-tenant has a right to the whole estate (right of survivorship)
Created:
- Identical interests
- From the same instrument
- At the same time
- With an equal right to possess
Tenancy by the Entirety
Each SPOUSE has an undivided interest in the whole estate and a right of survivorship
Created:
Same as JT
Tenancy in Common
Each tenant has a distinct, proportionate, undivided interest in the property. There is NO right of survivorship.
Created:
1. Possession
