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Property > Prop I > Flashcards

Prop I Flashcards

1
Q

Five Theories of Property

A 
Protect First Possession
Encourage Labor
Maximize Societal Happiness
Ensure Democracy
Facilitate Personal Development
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2
Q

Bundle of Sticks

A

The right to transfer
The right to exclude
The right to use
The right to destroy

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3
Q

Real Property

A

Rights in land and things attached to land (i.e. Buildings, fences, trees) and fixtures

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4
Q

Personal Property

A

Rights in moveable items (I.e. Chairs, pens, computers) and intangible things (I.e. Patents and shares of stock)

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5
Q

Three ways to transfer estates

A

Deed
Will
Interstate Succession

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6
Q

Deed

A

Completed transfer is a conveyance

Usually transferred intervivos

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7
Q

Intervivos Transfer

A

While living

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8
Q

Will

A

Transfer made by a decedent

Completed transfer is a device

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9
Q

Interstate Succession

A

Property distributed b/c no will

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10
Q

Hierarchy of Estates

A

Fee Simple
Few Tail
Life Estate
Leasehold

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11
Q

Feeehold Estates

A

Fee Simple Absolute
Life Estate
Fee Tail
Fee Simple Defeasible

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12
Q

Fee Simple Absolute common law

A 
"To A and his heirs"
The holder has all the rights with potentially infinite duration
No future interest
Freely ADD
If ambiguous, presumes life Estate
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13
Q

Fee Simple Absolute modern law

A

“To A” or “To A and his heirs”
Has all the rights with potentially infinite duration
No future interest
Freely ADD
If ambiguous, presumed fee Simple absolute

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14
Q

Life Estate common law

A

“To A for life” or “To A”
Presumed without words of inheritance
Measured by the lifetime of a particular person

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15
Q

Eminent Domain

A

Allows federal, state, and local governments to take property from a private owner who refuses to sell voluntarily and providing in return the marketable price on the land

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16
Q

Public Use

A

Limit that prevents government from using eminent domain power to take property for a purely private use, even if it is willing to pay fair market value

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17
Q

Just Compensation

A

The price that a willing seller would accept and a willing buyer would pay for a particular property on the open market

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18
Q

4 Ways to Escape a Zoning Ordinance

A

Amendment
Variance
Special Exception
Spot Zoning

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19
Q

Spot Zoning

A

Singles out a small parcel of land for different treatment
Primarily for the benefit of a private owner
In a manner inconsistent w/ the general plan for the community

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20
Q

Amendment to Zoning

A

Review the constitutionality of rezoning and allow it unless unreasonable
Usually by change or mistake

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21
Q

Change or Mistake Approach

A

If the conditions in the zone have significantly changed; OR

A mistake was made in the original Zoning ordinance

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22
Q

Nonconforming Use Doctrine

A

Before, or at the time of, the adoption of a new Zoning ordinance, the property was being used in a then-manner for a Use that, by later legislation, became non-permitted
Cannot be expanded for use

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23
Q

Nonconforming Use

A

Any lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located

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24
Q

2 Ways to Eliminate Nonconforming Use Doctrine

A

Amortization

Abandonment

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25
Q

Amortization

A

Requiring its termination over a reasonable period of time

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26
Q

Abandonment of Nonconforming Use

A

Intends to relinquish his rights to use

Voluntarily ceases Use for a set period of time varied by jurisdiction

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27
Q

Zoning

A

Regulation of the use of land by government action as opposed to regulation by agreements between private persons
Created by state statutory law, county ordinances, and city ordinances

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28
Q

2 Tests for Zoning

A

Rational Basis Test

Strict Scrutiny Test

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29
Q

Rational Basis Test

A

A law is unconstitutional only if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare

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30
Q

Strict Scrutiny Test

A

A law is constitutional only if it is narrowly tailored to accomplish a compelling state interest

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31
Q

2 Components Required For Zoning

A

Text of the ordinance

Maps that implement the ordinance

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32
Q

Termination of Covenants

A 
Expiration
Release
Merger
Destruction of Servient Tenement
Adverse Possession
Eminent Domain
Foreclosure
Abandonment
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33
Q

Abandonment of Covenant

A

When the existing violations are so great that an average person would reasonably conclude that the covenant was _____ .

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34
Q

Foreclosure of a Covenanted Property

A

Enforcement of a lien terminates a covenant that is junior in priority

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35
Q

Eminent Domain Covenant

A

When a government buys out a covenant, it is terminated

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36
Q

Adverse Possession Covenant

A

The Possession of the servient tenement must be hostile to the rights of the owner of the benefits of a land use covenant that burdens the servient tenement terminates a covenant

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37
Q

Destruction of Servient Tenement Covenant

A

Destruction of real property other than land terminates a covenant

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38
Q

Merger Covenant

A

When the dominant and Servient lands to a covenant become owned by the same person the covenant is terminated

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39
Q

Release Covenant

A

The transfer of the full benefits of the covenant to the owner of the servient tenement terminates the covenant

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40
Q

Expiration Covenant

A

The natural end of the covenant

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41
Q

Defenses to Covenants

A 
Unclean Hands
Waiver by Acquiescence
Laches
Statute of Limitations 
Estoppel 
Doctrine of Relative Hardship
Changed Conditions
Unreasonableness/Public Policy
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42
Q

Unclean Hands Covenant

A

A person cannot complain of a violation if that person is also in violation or has engaged in unfair or deceitful conduct with the particular issue

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43
Q

Waiver by Acquiescence Covenant

A

A party is seen as waiving their right to enforce a covenant where there was a violation of the covenant, which had a negative impact on the complaining party’s land, but no action to enforce the violation was taken

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44
Q

Laches Covenant

A

A person who does not assume rights within a timely fashion is barred from enforcing those rights

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45
Q

Statute of Limitations Covenant

A

Lack of commencement within the time prescribed by the statute

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46
Q

Estoppel Covenant

A

Reasonable reliance by a covenantor or successor upon the words or conduct of the covenantee to a legal detriment of the covenantor or successor

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47
Q

Doctrine of Relative Hardship Covenant

A

The owner of the burdened or Servient land must show it would be unjust or unfair to allow the covenant to be enforced.
At the time close to expiration

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48
Q

Changed Conditions Covenant

A

When the change within the subdivision was substantial; OR
When the change outside the subdivision will make all lots in the subdivision unsuitable for the uses permitted or required by the restrictions

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49
Q

Unreasonableness/Public Policy Covenant

A

Arbitrary or Spiteful
Unreasonably burdens a constitutional right
Imposes an unreasonable restraint on alienation
Unreasonable restraint on trade or competition
Unconscionable

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50
Q

Common Interest Community (CIC)

A

A planned residential development where all properties are subject to comprehensive private land use restrictions and which is regulated by an HOA

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51
Q

3 Theories to Determine Restrictions w/ in a Subdivision

A

Declaration of CC&Rs
Implied Reciprocal Servitudes Theory
Third Party Beneficiary Theory

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52
Q

Declaration of CC&Rs Theory

A

HOA established in writing
Imposed CC&Rs
Monetary Assessments

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53
Q

Implied Reciprocal Servitudes Theory

A

When a person buys into a subdivision, it is implied that the person is subject to any restrictions set forth by the common plan and scheme because of their duty to check title of the neighboring lots, even if not set out in that particular deed

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54
Q

Chain of Title Theory

A

Every deed to every lot in a subdivision is part of the deed chain to every individual lot therefore an individual is required to look up every deed to every lot

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55
Q

Third Party Beneficiary Theory

A

In order for a particular lot to be burdened, the Covenants must be w/ in the deed chain to that particular title

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56
Q

Equitable Servitude Burden Side to Run

A

Intent
Touch and Concern
Notice

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57
Q

Equitable Servitudes Benefit Side to Run

A

Intent
Touch and Concern
Standing to Enforce by vertical privity, 3rd Party Beneficiary Theory, or agency law

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58
Q

Covenant Real Burden Side to Run

A 
Intent
Touch and Concern
Horizontal Privity
Vertical Privity
Notice
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59
Q

Covenant Real Benefit Side to Run

A

Intent
Touch and Concern
Vertical Privity

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60
Q

Intent to Run

A

Intent to Bind successors

Express or implied

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61
Q

Touch and Concern Tests

A

Physical Use Test
Economic Value Test
Restatement

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62
Q

Physical Use Test

A

If the promise impacts the scope of the use of the burdened land then Touch and Concern is met

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63
Q

Economic Value Test

A

If the limitation placed on the promisor lowers the value of the burdened land, touch and Concern is met

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64
Q

Restatement Test T&C

A

Constitutionality
Legality
Public Policy
Reasonable

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65
Q

Horizontal Privity Tests

A

Common Law
Mutual Interest
Successive Interest

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66
Q

Horizontal Privity Common Law

A

Only a landlord/tenant relationship recognized

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67
Q

Mutual Interest Test

A

Original parties of a covenant must both have mutual interests in the affected land (I.e. Non possessory future interests, liens, cotenants)

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68
Q

Successive Interest Test

A

Grantor/Grantee

Transferor/Transferee

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69
Q

Vertical Privity Tests

A

Whole of the Estate

Any Interest

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70
Q

Whole of the Estate Test

A

Whatever Interest the transferor has at the time of transfer must be transferred to get vertical Privity
Majority

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71
Q

Any Interest Test

A

A transferor may transfer any part of their estate to get vertical Privity
Minority

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72
Q

Types of Notice

A

Actual
Record
Inquiry

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73
Q

Actual Notice

A

Had actual knowledge of the covenant

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74
Q

Record Notice

A

Notice based on a title search

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75
Q

Inquiry Notice

A

Reasonable inspection of the property and can make a reasonable inference.

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76
Q

Real Covenant

A

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors.
Remedy is money damages

77
Q

Equitable Servitude

A

A promise concerning land that benefits and burdens both the original parties to the promise and their successors
Remedy is injunction or specific performance

78
Q

Covenant

A

Promise

79
Q

Affirmative Covenant

A

Use the burdened land in a certain way

80
Q

Negative Covenant

A

Not to use the land in a particular way

81
Q

Appurtenant Covenant

A

Created for the beneficial use and enjoyment of property other than the property that is burdened

82
Q

Covenant in gross

A

Created for the benefit of a person without regard to, and which does not benefit, property that may be owned by that person

83
Q

License

A

An informal permission that allows the holder to use the land of another for a particular person
Revocable

84
Q

Profit

A

A right to enter the land of another to remove minerals, gravel, timber, game, or other natural resources

85
Q

Termination of Easements

A 
Expiration
Release
Merger
Bona Fide Purchaser
Destruction of Servient Tenement
Surcharge
Abandonment
Estoppel
Cessation by Necessity
Foreclosure
Eminent Domain
Defeasance
86
Q

Defeasance Easement

A

Easement is terminated by the happening or non happening of an event

87
Q

Eminent Domain Easement

A

Payment of just compensation to the owner by the government in the taking of land terminates an Easement

88
Q

Foreclosure Easement

A

The foreclosure of a senior encumbrance terminates any easements junior to that encumbrance

89
Q

Cessation by Necessity Easement

A

When the Necessity ends so does the Easement

90
Q

Estoppel Easement

A

Reliance

91
Q

Abandonment Easement

A

No use for a period of time; AND

Intent to abandon terminates an Easement

92
Q

Surcharge Easement

A

When the Easement is used for more than the scope of the Easement, it is terminated

93
Q

Destruction of the Servient Tenement Easement

A

Destruction of real property other than land terminates an Easement

94
Q

Bona Fide Purchaser Easement

A

If the Purchaser had no notice of the Easement, it is terminated

95
Q

Release Easement

A

When the owner of the dominant land releases the right of the Easement to the servient owner, Easement is terminated

96
Q

Merger Easement

A

When the dominant and Servient lands become owned by the same person, the Easement is terminated

97
Q

Expiration Easement

A

The natural end of the Easement time

98
Q

Easement by Estoppel

A

A landowner creates a license
The licensee relies in good faith on the license to his legal detriment
The licensor knows or reasonably should expect such reliance will occur

99
Q

Prescriptive Easement

A

Open and notorious
Adverse and hostile
Continuous
Exclusive

100
Q

Open and Notorious

A

Use is in an open manner that gives notice to the owner that the property is being used

101
Q

Adverse and Hostile

A

Use is without permission of the owner

102
Q

Continuous

A

Use is continuous for the prescriptive period

103
Q

Exclusive

A

Use to the exclusion of the general public

104
Q

Public Trust Doctrine

A

Navigable waters and certain related lands belong to the government as a trustee for the benefit of the public

105
Q

Easement by Necessity

A

Common Ownership
Severance
Necessary
Lasts as long as the Necessity exists

106
Q

Common Ownership

A

The lands were both owned by the same person

107
Q

Severance

A

The lands were severed by splitting them into parts

108
Q

Necessity EBN

A

Strict; OR

Reasonable

109
Q

Strict Necessity EBN

A

When the owner has no legal right to access their land

110
Q

Reasonable Necessity EBN

A

Beneficial or convenient for the use of the dominant parcel but not absolutely necessary

111
Q

Implied Easement by Prior Use

A

Common Ownership
Severance
Continuous
Reasonable Necessity for the Use

112
Q

Continuous IEP

A

Existing apparent and continuous use of a parcel for the benefit of another at the time of the severance

113
Q

Reasonable Necessity IEP

A

Alternative access or utilities cannot be obtained without a substantial expenditure of money or labor

114
Q

Statute of Frauds

A

Writing
Essential Terms
Signed by the Grantor

115
Q

Writing SoF

A

Medium of communication that represents language through words and symbols

116
Q

Essential Terms SoF

A

Indicates clearly what the promise is

117
Q

Signed by the Grantor SoF

A

The grantee does not have to sign; assumed acceptance upon accepting the document

118
Q

Easement by Reservation

A

Grants the servient land but retains an Easement over the property

119
Q

Easement by Reservation Common Law

A

Only reserved in favor of the dominant owner

120
Q

Easement by Reservation Modern Law

A

Can be reserved for a third Party

121
Q

Easement by Grant

A

Grants Easement to another

122
Q

Express Easement

A

Either by grant or Reservation

Agreed to in writing

123
Q

Easement

A

A non possessory right to use the land of another person

124
Q

Easement Holder

A

Dominant Owner

125
Q

Servient Tenement

A

Servient Owner

126
Q

Appurtenant Easement

A

Benefits the holder in her use of a specific parcel of land

127
Q

Easement in Gross

A

Benefits the holder regardless if they are the owner of land

128
Q

Affirmative Easement

A

Allows the holder to perform an act on the servient land

129
Q

Negative Easement

A

Allows the holder to prevent the servient owner from performing an act on the servient land

130
Q

Negative Easements at Common Law

A

Light
Airflow
Flow of Water in a Defined Channel
Subjacent or Lateral Support

131
Q

Negative Easements at Modern Law

A 
Light 
Airflow
Flow of Water in a Defined Channel
Subjacent or Lateral Support
Conservation 
Solar
132
Q

Widow Dower Common Law

A

A life Estate of 1/3 of all the freehold land that was owned by her husband and inheritable by his issue

133
Q

Separate Property System

A

Property is owned separately by the spouse who acquired it

134
Q

Divorce Separate Property

A

Equitable distribution based on income, standard of living, contribution during marriage, age, special needs, and length of marriage

135
Q

Death Separate Property

A

Surviving spouse receives a “forced share”

136
Q

Community Property System

A

All assets acquired from earnings during the marriage are owned equally by the spouses

137
Q

Divorce Community Property

A

Divided equally between the spouses

138
Q

Death Community Property

A

Half of the Community Property belongs to the spouse.

139
Q

Tenancy by the Entirety

A

“To A and B as husband and wife”
Similar to joint tenancy but only for marriage
Ended by death divorce or agreement by both spouses

140
Q

Mortgage Title Theory

A

The mortgage severs the joint tenancy upon conveyance of the title

141
Q

Mortgage Lien Theory

A

The mortgage does not sever the joint tenancy upon conveyance but only upon foreclosure proceedings if defaulted

142
Q

Conveyance by a Straw Person

A

A tenant transfers his interest to a third Party who then transfers it back to sever the joint tenancy

143
Q

Joint Tenancy

A

“To A and B as joint tenants with right of survivorship”
Requires unity of time, unity of title, unity of interest, and unity of Possession
If one is missing or ambiguous, tenancy in common is presumed
JDX split about word “jointly”

144
Q

Unity of Time

A

All tenants must acquire their interest at the same time

145
Q

Unity of Title

A

All tenants must acquire Title by the same instrument

146
Q

Unity of Interest

A

All tenants must acquire equal shares and duration

147
Q

Unity of Possession

A

All tenants must have equal right to possess and use the entire land

148
Q

Tenancy in Common

A

“To A and B as tenants in common”
Each cotenant has an undivided 1/3 fractional interest in the property
Freely ADD

149
Q

Merger Doctrine

A

If more than one interest is transferred to the same person without an intervening interest, the two interests merge into one

150
Q

Rule in Shelley’s Case

A

If a freehold estate is given to a person and, in the same instrument, a remainder is given to the heirs of that person, he takes both the freehold estate and the remainder

151
Q

Doctrine of Worthier Title

A

If a Grantor creates a remainder or an executory interest in his own heirs, the Grantor retains a future interest in himself rather than creating a future interest in those heirs

152
Q

Doctrine of Destructibility of Contingent Remainders

A

Any contingent remainder that has not vested at the termination of the proceeding freehold Estate is destroyed

153
Q

Rule Against Perpetuities

A

No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
Contingent Remainders, Executory Interests, and Vested Remainders Subject to Open

154
Q

Class Gifts

A

A gift is not valid to any members of the class until it is valid for all members of the class

155
Q

Savings Clause

A

Preventing any potential violation of the rule by requiring that every interest must vest before the end of the applicable perpetuities period

156
Q

Unborn Widow Rule Common Law

A

It is assumed that a widow is not to have been alive at the time of transfer and cannot be used as a measuring life
Opposite modernly

157
Q

Fertile Octogenarian Rule

A

A living person is capable of having children regardless of their age and health

158
Q

Executory Interest

A

Future interest in a transferee that must divest another estate or interest to become possessory
ADD

159
Q

Contingent Remainder

A

Anyone who is not vested
Not ascertainable OR
Subject to a Condition Precedent

160
Q

Vested Remainder Subject to Open

A

Vested and held by one or more living members of a group that may be enlarged in the future
“T A’s children” where A has two children currently, B and C

161
Q

Vested Remainder Subject to Divestment

A

Vested but Subject to a condition subsequent

162
Q

Vested Remainder

A

Created in an ascertainable person; AND not Subject to a condition precedent

163
Q

Remainder

A

A future interest in a transferee that can become possessory immediately upon the expiration of the prior estate; AND does not divest any interest in a prior transferee

164
Q

Future Interest in a Transferee

A

Remainder

Executory Interest

165
Q

Future Interest in a Transferor

A

Reversion
Possibility of Reverter
Right of Entry

166
Q

Reversion

A

Retained when a transferor conveys a smaller vested estate than the one she has (I.e. Life Estate or fee tail)
Freely ADD

167
Q

Possibility of Reverter

A

Retained by the transferor who holds a fee Simple Absolute but conveys a fee Simple determinable
Freely ADD

168
Q

Possibility of Reverter and Right of Entry at Common Law

A

Could only be transferred interstate Succession unless the transfer was a release

169
Q

Right of Entry

A

Retained by the transferor who holds a fee Simple Absolute but conveys a fee Simple Subject to condition subsequent
The holder must act to regain possession
Freely ADD

170
Q

Fee Simple Subject to an Executory Limitation

A

“To A and his heirs, but if B returns, then to B and his heirs”

Created in a transferee that is followed by a future Interest in another transferee

171
Q

Fee Simple Subject to Condition Subsequent

A

“To A and his heirs, but if the land is ever not used for farming, then O has the right to enter and repossess the land”

A fee Simple estate created that may be terminated at the election of the transferor or when a certain condition or events occur

172
Q

Fee Simple Determinable

A

“To A and his heirs as long as the land is used for farming”

A fee Simple estate that automatically ends when a certain event or condition occurs

173
Q

Defeasible Estate

A

An estate that may end upon the occurrence of some future event

174
Q

Fee Tail

A

“To A and the heirs of his body”
Determined by the lives of the lineal descendants of a particular person
Only in DE, ME, MA, RI

175
Q

Waste Doctrine

A

Imposes a duty on the life tenant to use the property in a manner that does not significantly injure the rights of the future interest holders

176
Q

3 types of waste

A

Affirmative
Permissive
Ameliorative

177
Q

Permissive Waste

A

Waste resulting from the life tenant allowing the property to fall into a state of disrepair, or the life tenant failing to protect the property from the elements or failing to pay property taxes

178
Q

Affirmative Waste

A

Waste resulting in permanent injury to the interest of a successive owner that is actively caused by the life tenant

179
Q

Ameliorative Waste

A

A substantial change in the principal use of the real property that increases the value of the real property

180
Q

Life Estate modern law

A

“To A for life”
Measured by the lifetime of a particular person
Requires words of limitation “for life”

181
Q

Life Estate pur autre vie

A

A life Estate measured by the life of another

182
Q

Life Estate Casualty Insurance

A

Not required by the majority

183
Q

USRAP

A

A non vested property interest is valid if:
If when created, it is certain to vest or terminate no later than 21 years; OR
The interest either vests or terminates within 90 years of execution

184
Q

Scope of Transferors Power

A

A transferor may transfer an estate of lesser or equal quantum than the one she owns at the time of the transfer

185
Q

CA Easement by Prescription

A

Different and additional uses may be permitted if the use does not impose an unreasonable burden on the servient tenement

186
Q

Equitable Conversion Doctrine

A

Cause a joint tenancy to sever as to the interest that is the subject of the contract of sale

187
Q

Ouster

A

When a cotenant restricts another cotenant from using the land
Owes the apportioned rent

188
Q

Euclidean Zoning

A

Zoning by districts

189
Q

CA Executory Interest made be called what?

A

Remainder

Property (1 decks)

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