Prop Flashcards
What are life t duties doctrine of waste
🚩ENTITLED TO ORDINARY USES AND PROFITS OF THE LAND
🐢🚩CANT DO ANYTHING TO INJURE REMAINDERMAN OR REVERSIONER
🐢THEY CAN SUE FOR DAMAGES AND 🚩ENJOIN SUCH ACTS. IF REMAINDERMAN. PAYS MONEY TO MEET LIFE TS OBLIG 🥍entitle to reimbursement🚩
AFFIRMATIVE VOL WASTE
LIFE T CANT EXPLOIT RESOURCES UNLESS NEC FOR REPAIR OR MAINTENANCE
🌈LAND IS SUITABLE ONLY FOR SUCH USE
🥏PERMISSION OF GOR
Open mines DOCTRINE
IF MINEING WAS DONE ON LAND PRIOR TO LIFE ESTATE LIFE T CAN MINE LAND BUT ONLY. To MINES ALREADY OPEN
Permissive waste
MAINTAIN LAND AND STRUCTURES IN A REAS STATE OF REPAIR
🚩PAY ORDINARY TAXES
🚩INTEREST ON MORTGAGES NOT PRINCIPAL
🚩PAY SPECIAL ASSIGNMENT FOR PUBLIC IMPROVEMENT OF SHORT DURATION
🏁🏁🏁🏁🏁🇮🇱🇮🇱🇮🇱🇮🇱🇮🇱🏁🏁🏁🏁🏁🏁🏁🏁🏁
LONG PUBIC IMPROVEMENT APPORTION ED BET LIFE T AND FUTURE INTEREST HOLDERS
PERMISSIVE WASTE OCCURS WHEN LIFE T FAILS TO DO SO
🚩DUTY LIMITED TO EXTENT OF INCOME AND PROFITS FROM LAND or REEAS RENTAL VALUE
🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳🇺🇳
Life T NOT OBLIGED TO INSURE LAND FOR BENEFIT OF REMAINDER MAN. Not RESPONSIBLE FOR DAMAGES CAUSED BY THIRD PARTY TORTFEASOR
🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎
Ameliorative waste
CHANGE THAT BENEFITS PROP ECONOMICALLY
🐢ACTIONABLE AT CL BUT NOW LIFE T CAN ALTER OR DEMOLISH EXISTING PROPERTY PROP IF
IT DOES NOT DIMINISH REMAINDERMANS INTEREST AND EITHER THE REMAINDERMEN DO NOT OBJECT OR THERE IS A SUBSTANTIAL AND PERMANENT CHANGE IN NEIGHBORHOOD FROM RESIDENTIAL TO 90% industrial
🚩that has deprived prop of substantial form of PRODUCTIVITY
Leasehold Ts remain liable for ameliorative waste
even if neighborhood has changed
Worthless prop seek partition sale trust w income for life t
Reversion in GOR
ALIENABLE DEVISABLE DESCENDIBLE
Gor can sue for waste
Damages to reversionary interest
Revers interests vested not subj to rule v perp
Remainder future interest in third p Bec possessory on natural expiration of preceding estate
It cannot divest preceding estate or follow a gap
It must be EXPRESSLYCREATED IN THE INSTRUMENT creating prior estate
Vested remainder
NOT SUBJECT TO CONDITION PRECEDENT AN EXISTING OR ASCERTAINED PERSON
INDEFEASIBLY VESTED REMAINDER NOT SUBJECT TO DIVESTMENT OR DIMINUTION
Contingent remainder
Unborn unascertained and subj to condition precedent
🚩🚩CL contingent remainder destroyed if failed to vest on or b4 expiration of preceding estate 🚩🚩
O to A FOR LIFE THEN TO B IF REACHES 21
IF A DIES B4 B REACHES 21 REMAINDER DESTROYED PROPERTY REVERTS TO GOR
BUT
Modern ABOLISHED IN MOST SYATES Bs interest converted to executory interest divests from gors reversionary interest when B TURNS 21
DOCTRINE OF MERGER WHEN ONE PERSON AQUIRES PRESENT AND FUTURE INTEREST EXCEPT A CONTINGENT REMAINDER THE CONTINGENT REMAINDER IS DESTROYED
O TO A FOR LIFE THEN TO BS CHILDREN
IF B4 B HAS CHILDREN O PURCHASES AS LIFE ESTATE O HAS A LIFE PUR AUTRA VIE AND A REVERSION. The INTERESTS MERGE AND THE CONTINGENT REMAINDER IN BS UNBORN CHILDREN IS DESTROYED
BUT IF A LIFE ESTATE AND THE NEXT VESTED INTEREST WERE CREATED BY THE SAME INSTRUMENT NO MERGER
MERGER OCCURS WHERE ONE PERSON LATER AQUIRES IMMED SUCCEESSIVE ESTATES
RULE IN SHELLYS CASE AGAINST REMAINDER IN GE HEIRS
AT CL IF SAME INSTRUMENT CREATEDLIFE ESTATE AND GAVE REMAINDER TO GEsHEIRS
The REMAINDER WAS NOT RECOGNIZED AND A TOOK LIFE ESTATE AND REMAINDER
O TO A FOR LIFE THEN TO B FOR LIFE THEN TO THE HEIRS OF A.
THE RULE IN SHELLYS CASE TRANSFORMS THE REMAINDER IN AS HEIRS TO A REMAINDER IN A BUT HERE NO MERGER BEC REMAINDER FOR LIFE OF B IS. VESTED
TO A FOR LIFE THEN TO As HEIRS. REMAINDER IN A. A HAS A FEE SIMPLE
RULE IN SHELLYS CASE ABOLISHED IN MOST STATES
Modern Result As HEIRS HAVE A CONTINGENT REMAINDER
DOCTRINE OF WORTHIER TITLE RULE OF REMAINDER IN GORS HEIRS INVALID BEC REVERSION IN GOR
O TO A FOR LIFE THEN TO THE HEIRS OF O.
UNDER DOWT A HAS LIFE ESTATE O HAS A REVERSION
DOWT IS A RULE OF CONSTRUCTION IT 🚩DOES NOT APPLY IF INTENT TO CREATE REMAINDER IN GEs HEIRS IS CLEARLY MANIFESTED
🚩🚩🚩DOWT APPLIES ONLY TO INTERVIVOS TRANSFERS NOT WILLS. And ONLY IF THE WORD “HEIRS “ is USED
EXECUTORY INTERESTS
SPRINGING EXECUTORY INTEREST
EXECUTORY INTERESTS in THIRD PARTIES THAT EITHER
1 DIVEST A TE PRECEDING FREEHOLD ESTATES 🌎🏁🚩SHIFTING INTERESTS OR
2 OR FOLLOW A GAP OR. CUT SHORT A GORs ESTATE 🚩🚩SPRINGING INTEREST
O TO A AND HIS HEIRS WHEN A MARRIES B
A HAS A SPRINGING EXECUTORY INTEREST BEC IT DIVESTS GORS ESTATE
O TO A FOR LIFE THEN TO B AND HIS HEIRS BUT IF B PREDECEASES A TO C AND HIS HEIRS
C HAS A SHIFTING EXECUTORY INTEREST BEC IT DIVESTS A PRIOR ESTATE
🚩🚩EXECUTORY INTERESTS ARE SUBJECT TO THE RULE V PERP
A REMAINDER CANNOT FOLLOW FEE SIMPLE
Transferability of REMAINDER AND EXECUTORY INTERESTS
VESTED REMAINDERS FULLY TRANSFERABLE DESCENDABLE AND DEVISABLE
At CL CONTINGENT REMAINDERS AND EXECUTORY INTERESTS WERE NOT TRANSFERABLE INTERVIVOS
BUT ….TODAY FULLY TRANSFERABLE
Contingent remainders and EXECUTORY interest ARE DIFFERENT DSESCENDABLE AND DEVISABLE PROVIDED SURVIVAL NOT CONDITION
🚩🚩🚩ANY FUTURE INTEREST THAT IS TRANSFERABLE IS SUBJECT TO INVOL TRANSFER THAT MEANS 🐳🐳🐳🚩REACHABLE BY CREDITORS
Vested remainder subj to open.
WHERE AT LEAST ONE MEMBER OF THE CLASS EXISTS
CONTINGENT 🚩🚩WHERE ALL MEMBERS OF CLASS UNASCERTAINED
Members of class successors can take if no req of survival
Class subj to open unascertained members
TO A FOR LIFE REMAINDER TO Bs CHILDEN. NO GOOD TITLE AS LONG AS B ALIVE
WHEN CLASS CLOSES
THE RULE OF CONVENIENCE
IN THE ABSENCE OF EXPRESS CONTRARY INTENT THE CLASS CLOSES AND NOONE BORN AFTER THAT TIME CAN SHARE IN THE GIFT
🚩🚩🚩🚩WHEN SOME MEMBER CAN CALL FOR DISTRIBUTION OF HER SHARE
T to W FOR LIFE THEN TO As CHILDREN
WHEN WILL EXECUTED A HAS TWO CHILDREN B AND C. A has another child D T DIES A HAS ANOTHER CHILD —-E. Then W DIES A HAS CHILD F.
THE CLASS CLOSED AT 🚩🚩🚩Ws DEATH BEC IT WAS TIME TO MAKE THE DISTRIBUTION
Ts WILL DEVISES RESIDUE OF HIS ESTATE TO THOSE OF As CHILDREN WHO REACH 21 IF ANY CHILD is 21 AT Ts DEATH THE CLASS CLOSES
OTHERWISE IT CLOSES WHEN ONE OF As CHILDREN REACHES 21
If IT HAD BEEN A FUTURE GIFT TO A FOR LIFE THEN TO THOSE OF As CHILDREN WHO REACH 21 🚩🚩🚩🚩THE CLASS WOULD REMAIN OPEN UNTIL THE LIFE T DIES EVEN IF CHILDREN REACH 21
PERSONS IN GESTATION ARE 🚩🚩🚩INCLUDED IN THE CLASS
🚩🚩🚩SURVIVAL OF A CLASS MEMBER TO THE TIME OF CLOSING IS USUALLY UNNECESSARY TO SHARE IN THE FUTURE GIFT UNLESS SURVIVAL WAS MADE AN EXPRESS CONDITION
TO A FOR LIFE THEN TO HIS SURVIVING CHILDREN
CERTAIN TERMS CREATE IMPLIED SURVIVORSHIP CONDITIONS. —-WIDOW issue HEIRS NEXT OF KIN
TO A FOR LIFE REMEMBER TO THOSE OF Bs CHILDREN WHO SURVIVE A
CONTINGENT REMAINDER IN BS CHILDREN EVEN IF B DIES OR BS CHILDREN ARE IN EXISTENCE
Indefensibly vested remainder
To A FOR LIFE THEN TO B
Contingent remainder
TO A FOR LIFE THEN TO B IF B MARRIES C
To A FOR LIFE THEN TO AS SURVIVING CHILDREN
SHIFTING EXECUTORY INTERESTS
“To A for life, remainder to B and her heirs; but if B predeceases A, then to C and his heirs.” (C has a shifting executory interest.)
SPRINGING EXECUTORY INTEREST
“To A when and if he becomes a doctor.”
or
“To A for life, then two years after A’s death, to B.”
TRUST
Fiduciary relationship w respect to specific property RES
TRUSTED HOLDS LEGAL TITLE TO PROP SUBJECT TO ENFORCEABLE EQUITABLE RIGHTS IN BENEFICIARY
The CREATOR OF THE TRUST IS THE 🚩🚩SETTLOR WHO MUST OWN PROP AT THE TIME OF TRUST CREATION w 🚩🚩INTENT TO CREATE
RULE V PERP APPLIES TO EQUITABLE FUTURE INTERESTS OF BENEFICIARIES AS WELL AS LEGAL FUTURE INTEREST
🚩🚩🚩🚩🚩🚩🚩🚩🚩CREATION OF TRUST
BY WILL TESTIMENTARY TRUST
INTER VIVOS TRANSFER OF TRUST RES OR
INTER VIVOS DECLARATION THAT SETTLOR IS HOLDING PROP IN TRUST
😆🚩🚩🚩ALL TRUSTS OF REAL PROPERTY MUST BE IN WRITING
A SETTLOR MAY BEQUEATH 🥏BY WILL 🥏PROP TO A TRUST CREATED IN HIS LIFETIME 🥏HE MAY POOR IT OVER INTO THE TRUST
Charitable trust 🌎must have a charitable PURPOSE
🥏MUST HAVE INDEFINITE BENEFICIARIES
🥏IT MAY BE PERPETUAL RULE V PURP DOESN’T APPLY
🥏The CY PRES DOCTRINE ALLOWS A CT TO SELECT ANOTHER CHARITY WHEN THE SETTLORS PURPOSE BEC IMPOSSIBLE OR IMPRACTICABLE
🚙CHARITABLE TRUSTS MAY BE ENFORCED BY STATE ATTY GEN
Rule v purp does mot apply from private to charitable or charitable to private
RULE V PERP
INTEREST IN PROP MUST VEST NO LATER THEN 21 YRS AFTER SOME LIFE IN BEING MEASURING LIFE AT THE CREATION OF INTEREST
🚨🚨🚨🚨IF THERE IS ANY POSSIBILITY THAT THE INTEREST MIGHT VEST MORE THEN 21 YRS AFTER SOME LIFE IN BEING INTEREST IS VOID
🥦🥦🥦🥦Rule APPLIES TO CONTINGENT REMAINDERS EXECUTORY INTERESTS VESTED REMAINDER SUBJECT TO OPEN
OPTIONS TO PURCHASE NOT ATTACHED TO A LEASEHOLD 🌭🌭🌭🌭
🍣🍣🍣🍣RIGHTS OF FIRST REFUSAL and
⛑⛑⛑⛑⛑POWERS OF APPOINTMENT
🐸🐸🐸WHEN PERP PERIOD BEGINS TO RUN
🐻🐻🐻FOR INTERESTS CREATED BY WILL
🦟🐽 THE DATE OF THE Ts DEATH
FOR DEEDS. DATE OF DELIVERY
IRREVOCABLE TRUST. DATE IT Was CREATED
REVOCABLE TRUST. THE DATE IT BEC IRREVOCABLE
An interest vests when it bec possessory, an indefeasibly vested remainder or vested remainder subject to total divestment
💑💑💑💑RULE V PERP
WHEN IT COULD POSSIBLY VESTNOT WHEN IT IS LIKELY TO VEST OR WHEN IT DOES
👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧👨👩👧
LOOK AT GRANT AT TIME OF CREATION
THE INTEREST MUST VEST WITHIN A LIFE IN BEING PLUS 21 YRS. IF THERE IS ANY POSSIBILITY THAT IT COULD VEST BEYOND THAT PERIOD
🕺🏼👯♂️🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼🕺🏼iT IS VOID
Ives IN BEING HUMAN AND REAS IN NUMBER
👨👨👧👨👨👧👨👨👧RULE V PURP DOES NOT APPLY TO VESTED REMAINDERS
🥦EXCEPT VESTED REMAINDER SUBJECT TO OPEN
INFECTIOUS INVALIDITY
IF INTEREST VIOLATES RULE V PERP IT WILL BE STRICKEN UNLESS T WISHES ENTIRE GIFT FAIL
COMMON PITFALL CASES
EXECUTORY interests FOLLOWING DEFEASIBLE FEE TO A FOR SO LONG AS NO LIQUOR CONSUMED ON PREMISES THEN TO B VIOLATES PERP Bs INTEREST IS STRICKEN.
EXECUTORY interests VALID IF SPECIFIC TO FEE HOLDER OR EXPRESSLY W IN PERP PERIOD
IF O TO A BUT IF LIQUOR EVER CONSUMED ON THE PREMISES TO B HERE ENTIRE CONDITION STRIKEN
GIFT TO CLASS BEYOND AGE 21 VOID
FERTILE OCTOGENARIAN
WOMAN PRESUMED TO BE CAPABLE OF BEARING CHILDREN AT ANY AGE
To A FOR LIFE THEN TO As CHILDREN FOR LIFE THEN TO As GRANDCHILDREN FOR LIFE
REMAINDER TO As GRANDCHILDREN INVALID
PERP REFORM STATUTE PRESUME WOMAN OVER
55 CANT BEAR CHILDREN
UNBORN WIDOW OR WIDOWER
TO A FOR LIFE THEN TO As WIDOW FOR LIFE THEN TO As SURVIVING ISSUE IN FEE GIFT TO ISSUE INVALID BEC W MIGHT NOT IN VOLVED WHEN INTEREST CREATED NOT SP IN BEING WHEN INTEREST CREATED
REMAINDER TO As CHILDREN WOULD BE VALID BEC THEY COULD BE DET AT DEATH
Few STATES RAISE PRESUMPTION THAT WIDOW IN BEING
Administrative CONTINGENCY VIOLATES RULE
GIFT CONDIT ON ADMINISTRATIVE CONTINGENCY IS INVALID
gift conditioned on an administrative contingency (e.g., admission of will to probate) violates the Rule.
Example: A gift “to my issue surviving at the distribution of my estate” is invalid
because the estate might be administered beyond the period of the Rule.
Options to purchase not attached to leasehold later then end of perp period Some CTs CONSTRUE REAS TIME and RT of first refusal
If right of FIRST REFUSAL BEYOND PERP PERIOD INVALID
THE RULE DOES NOT APPLY TO A CURRENT TENANT OR HIS ASSIGNS BUT IN DOES APPLY TO FORMER T OR TO ANY PARTY TO WHOM CURRENT T TRANSFERS OPTION SEPARATE FROM LEASE
RT of FIRST REFUSAL IS PRESUMED TO BE PERSONAL TO HOLER IN MANY STATES NOT SUBJECT TO RULE
CLASS GIFT BAD AS TO ONE BAD AS TO ALL
If INTEREST OF ANY CLASS MEMBER TO REMOTE WHOLE CLASS GIFT FAILS
FOR CLASS GIFT TO VEST CLASS MUST BE CLOSED AND ALL CONDIT PRECEDENT MET FOR EACH MEMBER
GIFT TO SUBCLASS EXCEPTION
GIFT TO ISSUE OF LIVING CHILDREN VALID
GIFT TO ISSUE OF AFTERBORN CHILDREN VOID
PER CAPITA GIFT. Gift OF FIXED AMOUNT TO EACH MEMBER OF CLASS NOT TREATED AS CLAS GIFT UNDER THE RULE
If
RULE IN DUMPHORS CASE
Once LL KNOWINGLY ACCEPTS ASSIGNMT
LL DID NOT OBJECT BY KNOWINGLY ACCEPTING RENT FROM ASSIGNEE
DUMPHOR ONCE LL ACCEPTS ONE ASSIGNMENT
HE WAIVES COVENANT AS TO FUTURE TRANSFERS UNLESS HE EXPRESSLY RESERVES IT she waives her right to avoid future transfers unless she expressly reserves the right to do so.
The reservation of this right must take place at the time of granting consent.
Transfer IN VIOLATION OF LEASE DOES NOT MAKE TRANSFER VOID LL MAY TERMINATE LEASE OR SUE FOR DAMAGES
ASSIGNMENT BY LL OF RENT AND REVERSION BY CONVEYING A BLDG TO NEW O BY DEED
RTS OF ASSIGNEE V TENANTS
ONCE Ts ARE GIVEN REASONABLE NOTICE OF Assignment THEY MUST PAY RENT TO NEW OWNER
The BENEFIT OF ALL TENANT COVENANTS THAT TOUCH AND CONCERN THE LAND. RUNS W THE LLs ESTATE TO THE NEW OWNER THE BURDEN OF LLs COVENANT THAT TOUCH AND CONCERN THE LAND RUNS W LL ESTATE TO ASSIGNEE
The ASSIGNEE IS LIABLE FOR PERF OF THESE COVENANTS
The original LL REMAINS LIABLE ON ALL THE COVENANTS HE MADE IN THE LEASE
LAND (INTENT BENEFIT THE LL AND BURDEN THE TS AND VISA VERSA. —
IF ENTIRE LEASEHOLD IS TAKEN BY EMINENT DOMAIN THE T IS NOT LIABLE FOR RENT. The. LEASEHOLD AND THE REVERSION IS MERGED IN THECONDEMNOR. There is no longer a leasehold estate
THE LESSEE IS ENTITLED TO COMPENSATION
🚩if THE TAKING IS TEMPORARY ORPARTIAL THE T IS NOT DISCHARGED FROM THE RENT🚩🚩🚩BUT IS ENTITLED TO COMPENSATION FOR THE TAKING
TorT LIABILITY OF LL AND T
🚩🚩🚩💑AT CL THERE IS NO DUTY TO MAKE THE PREMISES SAFE
TODAY THERE ARE 👨👨👧🐻🍣🚨🐳🚙🇮🇱🐽🌎👨👩👧🥦
🚩🚩🚩🚩6🚩🚩🚩EXCEPTIONS
1 CONCEALED DANGEROUS CONDIT LATENT DEFECT
AT THE TIME OF ENTERING INTO LEASE LL KNOWS OR SHOULD KNOW OF A DANGEROUS CONDITION THAT
Accession
Anexors INTENT TO MAKE OBJECT PART OF REALITY
Build house on land erroneously believed she owned
Some ct good faith trespassers get vVALUE ADDED. TO THE LAND NOT CONSTRUCTION COSTS
IF LANDOWNER DEFAULT ON CHATTEL PAYMT AND MORTG PAYMTS FIRST TO RECORD WINS EXCEPT IF S OF CHATTEL FILES
Under UCC S WINS IF FIXTURE FILING WITH IN 20 DAYS AFTER CHATTEL AFFIXED TO LAND
Easements covenants profits servitude non possessory interest RT to use land possessed by someone else
Easement holder RT TO USE ANOTHERS TRACT OF LAND FOR A SPECIAL PURPOSE LAY PIPE ACCESS ROAD NO RT TO POSSESS AND ENJOY
PRESUME PERPETUAL DURATION
AFFIRMATIVE EASEMT HOLDER CAN MAKE AFFIRMATIVE USE OF SERVIENT TENAMENT
NEGATIVE EASEMENT HOLDER CAN COMPEL O OF SVIENT TEN TO REFRAIN FROM ACTIVITY
LIGHT AIR LATERAL AND SUBAJACENT SUPPORT
FLOW OF ARTIFICIAL STREAM TODAY NEG EASEMTS ARE RESTRICTIVE COVENANTS
EASEMENT APPURTENANT BENEFITS HOLDER IN HIS USE AND ENJOYMENT OF ANOTHER TRACT OF LAND
BENEFIT OF EASEMENT APPURTENANT PASSES W LAND EVEN IF NOT MENTIONED
BURDEN OF EASEMENT APPURTENANT PASSES UNLESS🚩🚩NEW O IS A BONIFIED PURCHASER W NO ACTUAL OR CONSTRUCTIVE NOTICE
IT CANNOT BE CONVEYED APART FROM DOMINANT TEN UNLESS CONVEYED TO SVIENT TEN TO EXTINGUISH THE EASEMENT
Easmt in gross INDEP of land personal use
If serves commercial economic interest transferable
Express grant
WRITING IF A YR OR LESS OUTSIDE STATUTE OF FRAUDS MEET REQ OF DEED
Easement by reservation GOR conveys land but reserves RT to use tract for a special purpose
Only for GOR ANYONE ELSE VOID
Easement by implication
Operation of law
PRIOR TO DIVISION OF LAND
APPARANT AND CONTINUOUS USE OF SVIENT TEN
REAS NEC FOR FOR ENJOYMENT OF THE DOMINANT PART
Parties INTENDED USE TO CONTINUE AFTER DIVISION OF LAND
Easement implied without existing use
SUBDIVISION PLATT
IF LOTS SOLD W REF TO MAP ORPLAT SHOW STREETS LEADING TO LOT
B HAVE IMPLIED RT TO USE STREET LEADING TO LOTS
PROFIT A PENDRE
IMPLI3D EASEMT TO GO OVER SURFACE OF LAND TO EXTRACT PRODUCT
Easement by NECESSITY
LANDOWNER SELLS A PORTION OF HIS PLOT AND BY THE DIVISION DEPRIVES ONE OF PUBLIC RD OR UTILITY
O OF SVIENT TEN HAS RT TO LOCATE EASEMENT
Easement by prescription
Open and notorious discoverable on inspect
ADVERSE WITHOUT PERMISSION
CONTINUOUS AND UNINTERRUPTED FOR THE STATUTORY PERIOD
EASMT INTENDED TO MEET PRESENT AND FUTURE USEBUT IF DIVISION OVERBURDENES SVIENT ESTATE LOT O WILL NOT SUCCEED TO EASEMENT
Overuse or misuse does not terminate easement get injunction
Easement o has duty to make repairs if both use repair apportioned
Grant A YR OR LESS MO WRITING 🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🛹🛹🛹 RESERVATION BY GOR TOUSE TRACT FOR SPECIAL PURPOSE 🥊🥊🥊🥊🥊🥊🥊🥊🛹 IMPLICATION PREEXISTING USE 🥊🥊🥊🥊🥊🥊🥊🥊🥊 PRIOR TO DIVISION OF LAND
APPARENT AND CONTINUOUS NEC FOR ENJOYMENT OF DOMINANT PART PARTIES INTENDED USE TO CONTINUE PRESCRIPTION 🥊🥊🥊🥊🥊🛹🛹🛹🛹 OPEN NOTORIOUS Such that truly owner would make sufficiently APPARENT TO PUT TRUE O ON NOTICE TO PUT TRUE OWNER ON NOTYNOUCONTINUOUS AND UNINTERUPTED FOR STATUTORY PERIOD
Easement without ANY EXISTING USE
SUBDIVISION PLAT
Map or plat streets lead to lots
Implied easement to use street to access lots
Profit a pendra
Implied easement to go overland
Easement by A NEC
Easmt by prescription
OPEN NOTORIOUS
ADVERSE
CONT AND UNINTERRUPTED FOR THE STATUTORY PERIOD
CTs assume EASEMT intended to meet present and future needs wider cars if dominant estates subdued
Lot o will not succeed if overburden SVIENT est
Termination of easemts
1 STATED CONDITIONS
2 EASEMT AND SVIENT TENAMT MERG
Same PERSON AQUIRES OWNERSHIP OF THE EASEMT AND THE SVIENT ESTATE
⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️⛳️🥊🥊🥊🥊🥊🥊
The DOMINANT AND SVIENT ESTATE MERG and EASEMENT IS DESTROYED The unity must be complete THE DURATION OF THE SVIENT TEN MUST BE EQUAL TO OR LONGER THAN THE DURATION OF THE DOMINANT ESTATE
Deed of release from o of EASEMT to O OF SVIENT TENAMENT. Including EASEMENT IN GROSS
ABANDONMENT DEMONSTRATE BY PHYSICAL ACTION BUILD STRUCTURE THAT BLOCK EASEMENT 🥊🥊🥊🥊🥊
🥊🥊🥊🛹🛹🛹AN INTENT TO PERMANENTLY ABANDON EASEMENT
💑💑💑💑💑💑💑💑💑💑💑💑💑🚨🚨🚨🚨🚨🚨🚨🌈🌈🌈🌈🌈🌈🌈🌈🌈🌈🌈🌈😆🌈🌈🌈🌈🌈
MERE WISH TO ABANDON
MERE NON USE DOES NOT ABANDON
🎽🎽🎽🎽🎽ORAL EXPRESSION W LONG PERIOD OF NON USE
ESTOPPEL ORAL EXPRESSION OF INTENT TO ABANDON INSUFFICIENT UNLESS IN WRITING RELEASE OR ESTOPPEL O OF SVIENT ESTATE CHANGED POSITION IN RELIANCE OF REPRESENTATION OR CONDUCT
Termination of easement by prescription
Open notorious Continuous interruption of use for statutory period 20 YEARS
Easmt s created by NEC end when necessity ends
Condemnation of SVIENT estate extinguishes all easement
Destruction ofstucture on w there is easement
Invol destruction extinguishes easement VOL DESTRUCTION DOES NOT EXTINGUISH EASEMT
LicensesÙ
License
PRIVILEGE TO GO ON LAND OF LISENSOR NOT AN INTEREST IN LAND 🏁REVOCABLE AT WILL OF LICENSOR INALIENABLE Any ATTEMPT TO TRANSFER LICENSE CAUSES REVOCATION BY OPERATION OF LAW 🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊🥊
A FAILED ATTEMPT TO CREATE EASMT NO WRITING RESULTS IN LICENSE WHEN ORALLY GRANT EASEMENT FOR MORE THEN YR
🌎😆🌎🌎🥦🥦🌎🌎🌎🌎🌎🌎🌎🌎🌎🌎
Irrevocable LICENSE
1 ESTOPPEL LICENSEE INVESTS SUBSTANTIAL AMOUNTS OF MONEY AND LABOR IN RELIANCE ON LICENSE.
LICENSE TILL HOLDER GETS REIMBURSED FOR EXPENDITURES
2 LICENSED COUPLED W AN INTEREST IRREVOCABLE AS LONG AS INTEREST LAST
VENDEE OF CHATTEL GO INTO LAND TO REMOVE
FUTURE INTEREST HOLDER GOES ON LAND TO INSPECT FOR WASTE
PROFIT HOLDER CAN TAKE SOIL MINERALS TIMER
Profit
Holder can go on land to take soil timber minerals fish from SVIENT estate an implied easement Profit may be extinguished through Stated conditions Unity OF OWNERSHIP RELEASE ABANDONMENT ESTOPPEL NEC PRESCRIPTION Condemnation and destruction Surcharge Misuse that overburdens SVIENT ESTATE
COV RUNNING W THE LAND
WRITEN PROMISE TO DO SOMETHING ON. THE LAND OR TO REFRAIN FROM DOING SOMETHING on the land maintain a fence not build a multi family bldg
REAL COV RUN W THE LAND AT LAW
SUBSEQ owners MAY ENFORCE OR BE BURDENED BY THE COVENANTS
REQ FOR BURDEN TO RUN
Any successor in iNTEREST TO THE BURDENED ESTATE WILLBE BOUND BY THE COVENANT AS IF SHE HAD EXPRESSLY AGREED
The COVENANTING PARTIES MUST HAVE EXPRESSLY INTENDE D THAT THE SUCCESSORS in INTEREST TO THE COVENANTOR BE BOUND BY THE COVENANT
UNDER MOD RECORDER ACTS A BONIFIED PURCHASER IS BOUND BY COV IFHE HAD ACTUAL RECORD OR INQIRY NOTICE, AT THE TIME OF PURCHASE
HORIZONTAL PRIVITY POR AND PROMISEE SHARED SOME INTEREST IN LAND INDEPENDENT OF THE COVENANT MOR MEE ORIG PARTIES
VERTICAL PRIVITY SUCESSORS IN INTEREST TO THE-COVENANTING PARTY MUST HOLD SAME DURATIONAL INTEREST AS COVENANTOR AT THE TIME HE MADE COVENANT
NEGATIVE COV TOUCH AND CONCERN THE LAND IF THEY RESTRICT THE HOLDER OF THE SVIENT TENAMENT IN HIS USE OF THAT PARCEL
AFFIRMATIVE COVENANTS TOUCH AND CONCERN THE LAND IF THEY REQUIRE THE HOLDER OF THE SVIENT TENAMENT TO DO SOMETHING
Req for benefit to run
Successors in interest to promisee can enforce covenant if
1 INTENT THE COVENANTING PARTIES 🎈 INTENTED THAT SUCCESSORS IN INTEREST TO THE COVENANTEES BE ABLE TO ENFORCE THE COVENANT
2 VERTICAL PRIVITY
THE BENEFITS OF THE COV RUN TO ASSIGNEES OF THE ORIGINAL ESTATE OR ANY LESSER ESTATE
NO HORIZONTAL PRIVITY
WHERE NO HORIZONTAL PRIVITY THE SUCESSORS IN INTEREST TO THE COVENANTEE CAN ENFORCE THE COVENANT AGAINST PROMISOR BUT NOT PORS SUCCESSORS
3TOUCH AND CONCERN
THE BENEFIT OF THE COVENANT TOUCHES AND CONCERNS THEVLAND IF IT BENEFITS THE COVENANTEE AND HER SUCCESSORS
IN THEIR USE AND ENJOYMENT OF THE LAND
PROMISES TO PAY MONEY HOMEOWNERS ASSOC FEES AND COVENANTS NOT TO COMPETE RUN WITH THE LAND
BREACH OF REAL COVENANT
MONEY DAMAGES FROM D GENERAL ASSETS
INJUNCTION EQUITABLE SERVITUDE
Termination OF A COVENANT
WRITTEN RELEASE
MERGER OF BENEFITED AND BURDENED ESTATES
CONDEMNATION OF THE BURDENED PROPERTY
Equitable servitude
A COVENANT
WHETHER OR NOT IT RUNS W THE LAND IT WILL BE ENFORCED AGAINST ASSIGNEES OF THE BURDENED IESTATE WHO HAVE 🥊🥊🥊NOTICE
For MONEY DAMAGES REAL GOV
FOR INDUCTION
EQUITABLE SVITUDES
COVENANTS CONTAINED IN WRITING THAT SATISFIES STATUTE OF FRAUDS
Except
NEGATIVE EQUITABLE SERVITUDES MAY BE
🥊🥊🌈IMPLIED FROM A COMMON SCHEME FOR DEVELOPMENT IN A RESIDENTIAL SUBDIVISION
WHERE DEVELOPERS DIVIDE LAND AND SOME DEEDS CONTAIN NEG COVENANTS AND OTHERS DO NOT
🥊🎈🥊🚨⛑ NEG COVENANTS WILL BE IMPLIED ON ALL PARCELS PROVIDED THERE WAS A COMMON SCHEME FOR DEVELOPMENT AND NOTICE OF THE COVENANTS
COMMON SCHEME
RECIPROCAL NEG SERVITUDE WILL BE IMPLIED IF AT THE TIME SALE BEGAN DEVELOPER HAD A PLAN THAT ALL PARCELS WOULD BE SUBJECT TO THE RESTRICTION
THE SCHEME MAY BE EVID BY
A RECORDED PLAT
A GENERAL PATTERN OF RESTRICTIONS
ORAL REPRESENTATIONS TO EARLY BUYERS
THERE IS A COMMON SCHEME FOR DEVELOPMENT
RECIPROCAL NEG SERVITUDE WILL BE IMPLIED If AT THE TIME SALES IN THE SUBDIVISION BEGAN
DEVELOPER HAD COMMON SCHEME FOR DEVELOPMENT AND THERE WAS NOTICE
THE SCHEME MAY BE EVID BY RECORDED PLAT GEN PATTERN OF RESTRICTIONS ORAL REPRESENTATIONS TO EARLY BS
🥬🍎record3d platt
General pattern of restrictions
Oral representations to early bs
IF THE SCHEME ARISES AFTER SOME LOTS SOLD NO IMPLIED EQUITABLE SERVITUDE AS TO LOTS ALREADY. SOLD
NOTICE
TO BE BOUND BY COVENANT NOT IN HER DEED, GE MUST HAVE NOTICE OF THE COV IN THE DEEDS OF OTHERS
NOTICE MAY BE ACTUAL. DIRECT KNOWLEDGE
INQUIRY NOTICE NEIGHBORHOOD APPEARS TO CONFORM
RECORD NOTICE IN GEs CHAIN OF TITLE
Req for THE BURDEN TO RUN
INTENT NOTICE TOUCH AND CONCERN
THE COVENANTING PARTIES 🥊INTENDED🥊 THE SERVITUDE TO BE ENFORCEABLE 🥊BY OR AGAINST ASSIGNEES
THESUCCESSOR OF POR HAS ACTUAL INQUIRY OR RECORD NOTICE🌎
THE COV TOUCHES AND CONCERNS THE LAND IT RESTRICTS THE HOLDER OF SVIENT ESTATE IN HIS USE OF THAT PARCEL🌎
THE BENEFIT OF THE EQUITABLE SERVITUDE RUNS W THE LAND AND IS ENFORCEABLE BY PSEES SUCCESSORS 🚨IF ORIG PARTIES INTENDED AND THE SERVITUDE TOUCHES AND CONCERNS BENEFITED PROP
🥦NO PRIVITY OF ESTATE IS REQ FOR AN EQUITABLE SERVITUDE TO BE ENFORCEABLE BY OR AGAINST ASSIGNEES
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DEFENSES TO EQUITABLE SERVITUDE
1PERSON SEEKING ENFORCEMENT IS GUILTY OF UNCLEAN HANDS🥦 VIOLATING A SIMILAR RESTRICTION ON HIS OWN LAND
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A BENEFITED PARTY AQUIESED 🥦IN THE VIOLATION
OF SERVITUDE BY BURDENED PARTY
BENEFITED P ACTED IN SUCH S WAY THAT REAS person would believe covenant WAS ABANDONED OR WAIVED ESTOPPEL🥦AND BURDENED PARTY RELIED
Benefited party fails to bring suit within a REAS time LACHES
NEIGHBORHOOD CHANGED SO SIGNIFICANTLY THAT ENFORCEMENT WOULD BE UNREASONABLE
TERMINATION OF EQUITABLE SERVITUDE
WRITEN RELEASE
MERGER OF BENEFITED AND BURDENED ESTATES
CONDEMNATION
Irrevocable license IF DETRIMENTAL RELIANCE ON A PAROLE AGREEMENT
PARTY WALLS OR COMMON DRIVEWAYS CAN RESULT FROM IMPLICATION OR PRESCRIPTION
Cross easement of support. Burdens and benefits run to successive owners Are horizontal PRIVITY
Each promise touches and concerns the land party has notice bec of visibility
Actual entry giving rise to adverse possession
That is open notorious adverse THE KIND OF USE TRUE O WOULD MAKE
SUFFICIENTLY APPARENT TO PUT TRUE O ON NOTICE THAT TRESPASS IS OCCURRING
USE OF FARMLAND FOR A PICNIC NOT USE TRUE O WOULD MAKE NOT AN ACT CONSISTANT W OWNERSHIP
HOSTILE ADVERSE WITHOUT TRUE OS PERMISSION 🥊🥊🥊🥊IT DOESNT MATTER WEATHER POSSESSOR BELIEVES SHE IS ON HER OWN LAND 🌈
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If POSSESSION STARTS PERMISSIVELY SHE MUST INDICATE TO TRUE O SHE IS CLAIMING HOSTILELY
IF GOR OR TENANT STAYS IN POSSESSION PERMISSION PRESUMED
GORS OPEN REPUDIATION OF CONVEYANCE STARTS STATUTE RUNNING V GE
BOUNDRY LINE FENCE BET LAND Os by agreement
NOT CORRECT
But most ct fix ownership as per agreed line
Orig uncertainty as to true line
Fence Agreed upon
Lengthy acquiescence
CONTINUOUS POSSESSION FOR STATUTORY PERIOD AS BY AVE OWNER
INTERMITTENT PERIODS OF OCCUPANCY NOT REQ CONSTANT OCCUPANCY NOT REQ AS LONG AS USE LIKE TRUE O
TACKING PERIODS OF ADVERSE POSSESSION BY PREVIOUS OWNER
PRIVITY by DECENT DEVISE OR DEED
No PRIVITY if one adverse claimant ABANDONS
ORAL TRANSFER SATISFIES PRIVITY
PAYMT of prop taxes good evid of claim of RT
DISABILITY
IF TRUE O UNDER DISABILITY WHEN C/A FOR ADVERSE POSSESSION FIRST AROSE
MINORITY IMPRISONMENT INSANITY
NO TACKING OF DISABILITIES OF TRUE O
I
Equitable conversion
Doctrine of Equitable Conversion
Under the doctrine of equitable conversion, once a contract is signed 🥊and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property. 🥊The seller’s interest, which consists of the right to the proceeds of sale, is consid- ered to be personal property. 🥊The bare legal title that remains in the seller is consid- ered to be held in trust for the purchaser 🎈as security for the debt owed the seller. But note that possession follows the legal title; so even though the buyer is regarded as owning the property, the seller is entitled to possession until the closing.
Death of Seller
If the seller dies, the “bare” legal title passes to the takers of his real property, but they must give up the title to the buyer when the contract closes. When the purchase price is paid, the money passes as personal property to those who take the seller’s personal property. Note that if the property is specifically devised, the specific devisee may take the proceeds of the sale. (See F.1.b., infra.)
There is an implied covenant in every land sale contract that at closing the seller will provide the buyer with a title that is “marketable.”
a. “Marketability” Defined—Title Reasonably Free from Doubt no UNREAS risk of litigation
Unencumbered FEE SIMPLE W GOOD RECORD TITLE
DEFECTS IN THE CHAIN OF TITLE
VARIATIONS IN DESCRIPTION
DEFECTIVELY EXECUTED falls to meet req for recordation
Prior GOR LACKED CAPACITY
BUT ANCIENT MORTGAGE DID STATOF LIM RUN THEN OK
Beneficial easement to Utility EASEMT SVS property or visible known not unmarketable
Restrictive covenants. Title unmarketable
Significant encroachment of adjacent landowner as opposed to only a few inches
Zoning reg do not render title unmarketable unless EXISTING VIOLATION
QUITCLAIM DEED DOES NOT CONTAIN ANY COV OF TITLE STILL IMPLIED MARKETABLE TITLE
Installment land k furnish mketable title on delivery andbs final payment
Void deeds
Defective Deeds
A void deed will be set aside by the court even if the property has passed to a bona fide purchaser,
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but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser.
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Void deeds include those that are forged, were never delivered, or were obtained by fraud in the factum (i.e., the grantor was deceived and did not realize that she was executing a deed).
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Voidable deeds include those executed by minors or incapacitated persons, and those obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
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Fraud in the inducement duress undue influence breach of fiduciary duty
Fraudulent Conveyances
Even when a deed complies with the required formalities, it may be set aside by the grantor’s creditors
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if it was made: (i) with actual intent to hinder, delay, or defraud any creditor of the grantor;
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or (ii) without receiving a reasonably equivalent value in exchange for the transfer,
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and the debtor was insolvent or became insolvent as a result of the transfer.
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However, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
Description of Land Conveyed
A description is sufficient if it provides a good lead to the identity of the property (e.g., “all my land in Stockton”).
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If it is too indefinite, the grantor retains title (but reformation of the deed is a possible remedy).
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Parol evidence is generally admissible to resolve patent or latent ambiguities if the description gives a good lead, but it may not be admissible where the description is inadequate.
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Rules of construction natural monuments (e.g., oak tree); artificial monuments (e.g., stakes, buildings); courses (e.g., angles); distances (e.g., feet, yards); name (e.g., Blackacre); and quantity (e.g., 300 acres). 🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑🍑
b. Boundary Cases
Presumptively, title to land passes to the center of a right-of-way or water boundary. This presumption can be rebutted by language in the deed. In variable boundary line cases (i.e., water boundary) the slow and imperceptible change in the course of a river or stream operates to change ownership rights
ACCRETION accretion (slow deposit of soil on land abutting water) belongs to the abutting owner. 🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏🍏
Avulsion (sudden change of watercourse) DOES NOT CHANGE BOUNDRIES Fix boundaries are not changed by encroachment of water
ACCEPTANCE AND DELIVERY OF DEED
INTENT TO MAKE A DEED PRESENTLY EFFECTIVE
Even if posssession delayed
Title passes upon delivery
RETENTION OF INTEREST BY GOR OR CONDITIONAL DELIVERY RT TO REVOKE
Lack of intent to pass Title
GOR EXECUTES DEED BUT DOES NOT DELIVER IT DURING LIFETIME
Conditions Not Contained in Deed
If a deed is absolute on its face but delivered with an oral condition, the condition is disregarded and the delivery is absolute.
Where Grantor Gives Deed to Third Party
Here, conditional delivery is permissible.
Conditions not contained in deed deed absolute on face CONDIT ORAL IS DISREGARDED.
Transfer to Third Party with No Conditions
If THIRD PARTY IS GORs AGENT NO TRANSFER NO DELIVERY
GORs RT TO RECOVER DEED
Grantor can revoke 🍎if the condition is not yet occurred 🍎and if there is 🍎no enforceable contract to convey
GORS RT TO RECOVER DEED
1 CONDIT NOT YET OCCUPIED AND THERE
2 is NO ENFORCEABLE K TO CONVEY
Breach of escrow conditions
Obtain deed from escrow holder prior to perf of CONDIT NO GOOD TITLE to SUBSEQ PURCHASR
RELATION BACK DOCTRINE
TITLEPasses when CONDITION OCCURS BUT if justice requires the grantor dies or bec incompetent
title may “relate back” to the time when the grantor gave the deed to the third party. Rights of intervening bona fide purchasers are protected.
TRANSFER TO THIRD PARTY W CONDITIONS DONATIVE TRANSACTIONS
GOR GIVES DEED TO THIRD P WHEN CONDITIONS OCCUR
CAN GOR REVOKE IF CONDIT HAS NOT YET OCCURRED ?
ONLY IF NO ENFORCEABLE K TO CONVEY
When condition is GOR DEATH CTS FIND Delivery IRREVOCABLE where GOR INTENT FUTURE INTEREST
Most STATES PRESUME ACCEPTANCE UNLESS DEFEATS
DEDICATION LAND MAY BE TRANSFERED TO A PUBLIC BODY CITY OR COUNTY BY @ ORAL WRITTEN STMT @SUBMISSION OF MAP OR PLAT 🍎OPENING LAND TO PUBLIC OFFER ACCEPTED BY 🍈FORMAL RESOLUTION 🍐APPROVAL OF MAP 🗺 OR PLAT MAINTENANCE OR IMPROVEMENTS
Notice statute ICtEDi p
Actual notice any source newspaper word of mouth
RECORD NOTICE SEARCHER COULD REAS FIND
Exam Tip Although no one has a legal duty to perform a title search, a subse- quent purchaser will be charged with the notice that such a search would provide, whether or not she actually searches.
BFP who paid value and has no actual or constructive notice will prevail over prior Ge who fail to record notice at time of conveyance
B HAD NO NOTICE AT THE TIME HE TOOK
SUBSEQ BFP PROTECTED WHETHER HE RECORDS orNOT
RACE NOTICE
“
SUBSEQ BFP PROTECTED IF HE HAS NO NOTICE AND RECORDS BEFORE PRIOR GE
O TO A ON JAN 1 A DOES NOT RECORD O TO B ON JAN 15 FOR VALUABLE CONSID HE HAS NO NOTICE OF PRIOR CONVEYANCE A RECORDS JAN 18 B RECORDS JAN 20. A prevails
RACE WHO EVER RECORDS FIRST WINS
BFP PERSON WITHOUT NOTICE PAYS VALUABLE CONSIDERATION NO ACTUAL inquiry or record notice
In determining who is a BFP for purposes of protection of the recording statutes, remember that the purchaser must be without notice at the time of conveyance. It does not matter if she learns of an adverse claim after the conveyance
but before recording.
SUBSEQ purchaser charged with notice of a misindexed deed
Unacknowledged instrument not entitled to recordation except not defective on its face
