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Property 1-63 Flashcards

1
Q

Defeasible Fees

A

A fee simple estate of potentiall infiniate duration that can be terminated upon the occurance of some specifified event.

  • i.e., estate with a remainder vested in some other person, who may lose the vested interest upon the occurance of some event
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2
Q

How to created a Fee Simple Determinable

A

Requires clear words of intent for the remainder to vest.

Words of desire, home, or aspiration are insufficient.

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3
Q

What are the three types of defeasible fees?

A
  1. Fee simple determinable
  2. Fee Simple Subject to Condition Subsequent
  3. Fee Simple Subject to Executory Interest
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4
Q

Fee Simple Determinable Definintion

A

Property automatically terminates and reverts back to the grantor upon the happening of a given event.

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5
Q

Fee Simple Determinable Characteristics

A
  • Automatic Forefeiture – upon occurrance of the given event or condition, the grantee automatically forfeits his estate
  • Potentially infiniate – duration can be infiniate so long as the event or condition does not occurr.
  • Transferability – alienable, devisable, and descendible, subject to the occurrance of the given event.
    • absolute restains on alienation are void.
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6
Q

Fee Simple Determinable Creation

A

Requires clear durational langauge

  • Phrases such as “for as long as, while, during, until.”
  • e.g. to A for so long as he practices law.
    • If A stops practicing law, property automatically reverts back to the grantor
  • Words of desire, hope, or aspiration are insufficient.
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7
Q

Fee Simple Determinable Accompanying Future Interest

A

Possibility of Reverter

  • Grantor retains a possibility of reverter
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8
Q

Fee Simple Subject to Condition Subsequent Definition

A

Grantor retains the power to terminate grantee’s estate upon the happening of some given event or condition.

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9
Q

Fee Simple Subject to Condition Subsequent Characteristics

A
  • Forfeiture not automatic – if the event or condition occurs, grantee still retails title until grantor takes some action to exercise his right of re-entry.
  • Potentially infinite – duration can be infinite so long as the event or condition does not occur.
  • Transferability – alienable, devisanble, descendible, subject to the occurrance of the given event or condition
    • Absolute restraints on alienation are void.
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10
Q

Fee Simple Subject to Condition Subsequent Creation

A

Clear durational language must carve out a right of reentry for grantor

  • E.g. “to A, but if he wins the lottery, grantor reserves the right to reeenter and retake.
  • Words of desire, hope or aspiration are insufficient.
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11
Q

Fee Simple Subject to Condition Subsequent Accompanying futute interest

A

Right of reentry

Grantor retains right ot reentry.

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12
Q

Fee Simple Subject to an Executory Interest Definition

A

Property automatically transfers to a third-party upon the happening of a given event or condition.

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13
Q

Fee Simple Subject to an Executory Interest Characteristics

A
  • Automatic forfeiture – upon the occurrence of the event or condition, estate automaticllly transfers to a third person
  • Potentialy infinite – duration can be infinite so long as the even or condition does not occur
  • Transferability – alienable, devisable, and descendible, subject to the occurrance of the event or condition.
    • Absolute restrains on alienation are void.
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14
Q

Fee Simple Subject to an Executory Interest Creation

A

Clear durational langauge is required

  • E.g. “To A, but if A is ever arrested, then to B”
  • Words of desire, hope or aspiration are insufficient.
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15
Q

Fee Simple Subject to an Executory Interest Accompanying Future Interest

A

The third-party holds the shifting executory interest.

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16
Q

Life Estate Definition

A

An interest that lasts only for the life of the interest holder.

  • Does not terminate at a fixed or computable time period.
  • Typically measured by the life of the grantee
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17
Q

Life Estate Pur Autre Vie

A

Life estate measured by the lift of another person

  • O grants “To A for the life of B”
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18
Q

Life Estate and Waste

A
  • Life tenant cannot injure interests of remaindier/reversion holder.
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19
Q

Affirmative (voluntary) Waste

A

Life tenant cannot comsume or exploit natureal resources except:

  • Where necessary for repairs or maintainence of land
  • When grant expressly gives the right to exploit
  • If land was used for exploitation prior to grant.
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20
Q

Open Mines Doctrine

A

If extraction of materials was done on land before life tenant estate began, life tenant may only extract from mines already open.

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21
Q

Permissive Waste

A

Life tenat has duty to repair/maintain property up to the extent of income/profits derived from land or rental vlaue of land.

  • Failure to do so is permissive waste.
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22
Q

Ameliorative Waste

A

Acts that economically benefit land’s value.

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23
Q

Future Interests in the Grantor

A
  • Possibility of Reverter
    • Accompanies a FS Determinable
  • Right of reentry/power of termination
    • Accompanies a fee simple subject to a condition subsequent
  • Reversion
    • Default future interest for grants of an estate smaller than a fee simple, such as a life estates or estate for years
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24
Q

Future interests in Grantees or Third Persons

A
  • Vested Remainders
  • Contingent Remainder
  • Executory Interest
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25
Q

Three types of Vested Remaiders

A
  • Indedeasible vested remainder
  • Vested remainder subject to total divestment
  • Vested remainder subject to open
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26
Q

Remainders Definition

A

A future interest in a third person that arises immefiately upon the termination of the preceeding estate.

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27
Q

Remainders Chatacteristics

A
  • Expreslly created in the same conveyance in whch the preceeding estate is created.
  • Cannot cut off or divest an interest held by a prior transferee
  • Alienable, devisable, and descendible
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28
Q

Vested Remainders Definition

A

A remiander that automatically becomes possessory upon the natural expiration of the preceding estate

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29
Q

Vested Remainders Limitations

A
  • Vested remainders cannot
    • Be subject to any condition precedent
    • Vest in an unknown or unascertained person.
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30
Q

Indefeasibly Vested Remainder

A

Becomes possessory immediatley upon the termination of the prior estate.

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31
Q

Vested Remainder Subject to Total Divestment

A

Subject to some condition subsequent, such that the remainderman could be divested after taking possesssion.

  • To A for life, remainder to B; but if B weds, to C.
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32
Q

Vested Remainder Subject to Open (Class Gift)

A

Remainder vested in a described class of takers, at least one of whom is capable of taking possession (i.e. by virture of being alive).

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33
Q

Vested Remainder Subject to Open (Class Gift) cannot be subject to any ____ ____.

A

Conditon Precedent

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34
Q

Open vs. Closed Class

A

Class remains open to allow for future class memebers (anyone who satisfies class description) and closes when additional class memebers are impossible.

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35
Q

Rule of Convenience

A

Class closes whenever any memeber can call for distribution of her share; does not apply if it conflicts if it conflicts with the grantor’s express intent

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36
Q

Contigent Remainders Definition

A

A remainder will be contingent if it is either:

  • Subject to a condition precedent
  • Created in favor of an unascertained or unborn person.
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37
Q

Contigent Remainders Subject to Condition Precedent

A

Remainder’s taking is subject to a condition precedeent, i.e. contingent as to an event.

  • Once grantee satisfies the contingency, the interest automaticaly becomes an indefeasibly vested remainder.
  • To A for life, then to B and his heirs when get gets married.
    • If B is unmarried at the time of the conveyance, A has a life estate, B has a contigent remainder (bc marriage is a condition precedent), and the grantor has a reversion in case B is not married when A dies.
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38
Q

Contigent Remaiders Subject to Unborn or Unascertained Persons

A

Remainder is contigent if created in favor of unborn or unascertained persons

  • The remainder is contingent on the grantee becoming born or ascertained.
  • To A for life then to B’s heirs
    • If B is alive upon conveyance, remainder is contingent bc heirs of B cannot be ascertained until B dies.
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39
Q

Rule of Destructability

A

At common law, a contingent remainder is destroyed if it remains contingent when the preceding estate ends.

  • O grants “To A for life, then to B once B goes to law school.” A dies and B has not gone to law school.
    • At common law, B gets nothing upon A’s death.
    • Modern – gives a reversion to grantor or grantor’s heirs until grantee satisfies the condition.
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40
Q

Merger (Shelley’s Rule)

A

O grants “To A for life, then to A’s heirs.” and A is alive

  • At common law, the remainder merges and A has a fee simple absolute.
  • Modern – A has a life estate and A’s heirs have contingent reaminders.
    • O has a reversion bc A could die wihtout heirs.
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41
Q

Doctrine of Worthier Title

A

O conveys to “A for life, then to O’s heirs”

  • The contigent remainder in O’s heirs is void; A instead has a life estate and O has a reversion.
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42
Q

Executory Interests Definition

A

A future interest in a third party who takes effect by cutting short some interest.

  • Shifting and springing
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43
Q

Executory interests holds _____ sue for waste

A

Cannot

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44
Q

Shifting Executory Interest always follows a ___

A

defeasible fee

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45
Q

Shifting executory interest cuts short someone other than the ____

A

Grantor

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46
Q

Springing Esecutory Interest custs short the interest of the ____ or his ____

A

Grantor or his heirs

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47
Q

Springing Executory Interest Example

A

To A, if and when he gets married.

A has an executory interest

Grantor has a fee simple subject to an executory interest.

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48
Q

Rule Against Perpetuties

A

No property interest is valid unless it must vest, if at all, no later than 21 years after the death of a life in being at the time the interest was created.

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49
Q

The RAP applies to

A
  • Contingent Remainders
  • Executory Interests
  • Vested Remainders subject to Open
  • Options and rights of first refusal
  • Power of appointments
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50
Q

Rights of First Refusal & RAP

A

Contingent interests in property (i.e. options and rights of first refusal) villate RAP if they could possibly be exercised outside the time period allowed by RAP.

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51
Q

Class Gifts and RAP

A

For class gifts to satisfy RAP, class must be closed with all conditions preedent satisfied for every class members

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52
Q

Examples of RAP Violations

Age Contingencies beyond 21

A

A conveyance to an open class is contingent on members raching an age over 21

  • Void under RAP bc it cannot vest within 21 years of a life in being at the creation.
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53
Q

Examples of RAP Violations

Fertile Octogenarian

A

Presumption that any woman is capable of giving birth, regardless of her age or conditon.

  • To “A for life, then to A’s children who reach age 30.” A is 80, her son is 40.
    • Conveyance violates RAP as A’s son could die, she could have a daughter at 81, then die when she’s 82.
      • The remaining daughters interest will not vest for another 28 years.
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54
Q

Examples of RAP Violations

Charity-to-Charity

A

RAP does not apply to conveyances from one charity to another.

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55
Q

Tenancy in Common definition

A

An estate with multiple tenants in which each co-tenant owes an individual part and each has a right to possess the whole.

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56
Q

TIC Characteristcs: (5)

A
  • Freely transerable – each interest is freely descendible, devisable, and alienable.
  • Co-tenants only share the right to possession.
  • No survivorship rights – a co-tenant’s interest can be transferred to heirs upon her death.
  • Parition – a co-tenany can force partition at any time and take sole ownership of her shre in the estate while the remaining parties hold their interests as tenants in common
  • Modern law favors TIC
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57
Q

Joint Tenant Creation

A

Four contditons must concurrently exist when the tenants take their interests:

  • Time – JT must take their interest at the same time.
  • Title – JT must receive their conveyance through the same instrument
  • Interest – JTs must take equal and identical interests
  • Possession – JT must have equal possessory rights.
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58
Q

A grantor must ____ intent to create a JT; otherwise, a ____ is presumed

A

expressly intend; TIC

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59
Q

Joint Tenancy Rights of Survivorship

A

If one JT dies, surviving JT’s share automatically take equal possession of deceasted JT’s share.

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60
Q

Joint Tenant Transferability

A

Alienable, but not devisable or descendable

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61
Q

Severance of a JT interest

A

Severance by any JT creates a TIC with respect to the severed interest.

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62
Q

Joint Tenancy and Transfer of Interest

A

A JT interest becomes a tenancy in common upon transfer.

  • This does not destroy the entire JT is more than two JTs remain.
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63
Q

Joint Tenancy and Mortgages

A

Lien Theory – JT can take a mortgage on her interest without severing JT (bc no title passes to mortgagee)

Title Theory – JT is severed if any JT takes a mortgage on her interest bc title passes to the mortgagee.

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64
Q

Tenancy by the Entirety

A

Marital estate, similar to JT, but between husband and wife

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65
Q

Creation of Tenancy by the Entirety

A

Created by conveyance to a married couple; requires the same four conditions as a JT.

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66
Q

A tenancy by the entirety is presumed in any conveyance made jointly to ___ & ___

A

Husband & Wife

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67
Q

Tenancy by the entirety has rights of survivorship

t/f

A

True

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68
Q

Tenancy by the entirety ____ be partitioned.

A

Cannot

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69
Q

An attempt by one spouse to parititon is invalid and will not destroy the tenancy

t/f

A

True

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70
Q

Creditors of ___ spouse cannot reach that spouses interest.

A

one spourse

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71
Q

Only creditors of ___ spouses can reach a tenancy bu the entirety

A

Both

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72
Q

Severance of a Tenancy by the Entirity

A
  1. Death of one co-tenant
  2. Mutual agreement by the parties in writing
  3. Issuance of a divorce decree
  4. Execution by a joint creditor (e.g. foreclosure)
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73
Q

Co-Tenants’ Rights & Duties

A
  1. Possession
  2. Rent from a co-tenant in execlusive possession
  3. Rent from third parties
  4. Adverse possession
  5. Carrying Costs
  6. Repairs
  7. Improvements
  8. Waste
  9. Partition/Forced Sale
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74
Q

Possession

A

Each co-tenant has rights to possess the whole

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75
Q

Rent from a co-tenant in execlusive possession

A

A co-tenant in execlusive possesson is not liable to co-tenants for rent

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76
Q

Rent from third parties

A

A co-tenant leasing premises out must account to co-tenants for their share of rental income

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77
Q

Co-Tenants Adverse Possession

A

Tenants may not acquire title to the execlusion of co-tenants through adverse possession

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78
Q

Carrying Costs

A

Each tenant is responsible for his fair chare of taxes, interest, etc.

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79
Q

Repairs Co-Tenants

A

Co-tenants may seek contribution for reaosnable repairs, but must inform co-tenants before making repairs

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80
Q

Co-Tenants Improvements

A

No right to contribution for improvements; but co-tenants are entitled to credit for an increase in vlaluse attributable to the improvement (and also liable for any resulting loss).

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81
Q

Co-Tenants Waste

A

A co-tenant can bring an action for waste agaisnt another co-tenant during the life of the tenancy

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82
Q

Co-Tenants and Forced Sale

A

JT’s and TIC may bring an action for partition, or seek a forced sale and apportion the proceeds.

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83
Q

Leasehold Estates Definition

A

An estate in which the tenant has a present possessory property interest and the landlord has a futute interest (reversion)

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84
Q

Tenancy for Years (4)

A
  • Lasts for a fixed period of time
  • Requires a definite beginning and end date
  • If duration is longer than one year; SOF applies
  • Termination autoamtically at the end of the fixed period.
    • No notice is required
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85
Q

Periodic Tenancy Definition

A

A leasehold that is continuous for successive intervals (e.g. weeks or months) until either party gives notice of termination.

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86
Q

Creation of a Periodic Tenancy

Express, Implication, Operation of Law

A
  • Express Agreement – conveyed to a tenant for agreed interval
  • Implication – a lease does not specify duration, but provides rent to be paid at set intervals
  • Operation of Law –
    • Invalid Lease – if tenant takes possession despite an invalid lease, periodic tenancy arises upon the landlord’s acceptance of payment.
    • Holdover tenant – if landlord accepts rent from a holdover tenant, a priodic tenancy arises for the period the payment covers.
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87
Q

Termination of a Periodic Tenancy

(Time, Date)

A
  • Sufficient time – tenant must give notice one full period in advance; year-to-year tenancies require six months notice.
  • Effective Date – effective date of termination must be at the end of the period of the tenancy.
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88
Q

Tenancy at Will Definition

A

A tenancy with no fixed duration, terminable by either party at any time without notice.

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89
Q

Creation of Tenancy at Will

A
  • Express agreement
    • Without an express agreeemnt, courts wil treat the lease as an implied periodic tenancy!
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90
Q

Termination of a Tenancy at Will

(Will or operation of Law)

A
  • By Will– either party can terminate the lease at any time without notice, but a reaosnable demand to vacate the premises is usally required.
  • Operation of Law:
    • Death of either party
    • Waste by the tenant
    • Assignment by the tenant
    • Transfer of title by the landlord
    • Lease by the landlord to a third party
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91
Q

Tenancy at Suffernace Definition

A

A default tenancy that arises when a tenant continues to possess property after the lease expires (i.e. holdover tenant).

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92
Q

Tenancy at Sufferance Creation

A

Tenant holds possession beyond lease expiration.

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93
Q

The lease terms and condition automatically carry over to the tenancy at sufferance

t/f

A

True

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94
Q

Landlord’s Options – Tenancy at Sufferance

A
  1. Sue to Evict
  2. Impose a new periodic tenancy
    1. Raised rent – landlord can demand higer rent for both the holdover period and any new periodic tenancy if he gave notice of the increase before the lease expired.
    2. Commerical leases – if expired lease was for one year or longer, the new periodic tenancy can be year to year.
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95
Q

Exceptions to imposing a Periodic Tenancy with a Tenancy at Sufferance

A
  • Tenant only remains in possession for a few hours
  • Tenant is not at fault for delay in vacating (illness)
  • Seasonal leaes (ski cabin)
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96
Q

Tenant’s Duties at Common Law

List

A
  • Duty to Repair
  • Duty to Pay Rent
  • Duty to not use property for illegal purposes
  • Liability to third parties
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97
Q

Tenant’s Duty at Common Law

Duty to Repair

A

The duty to repair can be modified by the lease:

  • Tenant must maintain premises and make ordianry repairs.
    • Mitgated by warranty of habitablity
  • Tenant Must Not Commit Waste
    • Voluntary Waste
    • Permissive
    • Ameliorative
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98
Q

Destruction of premises without fault of landlord or tenant

CL v. Modern

A

CL – tenant held liable for any loss

Mod– Tenant can terminate lease

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99
Q

Tenant’s Duty at Common Law

Duty to Pay Rent

A

Tenancy at sufferance arised upon breach

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100
Q

Tenant’s Duty at Common Law

Duty to not use prperty for illegal purposes

A
  • If tenant uses premises for an illegal purpose, LL may terminate lease or obtain damages and injunctive relief.
  • Occassional, minor illegal activity do not constitute a breach.
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101
Q

Tenant’s Duty at Common Law

Liability to third parties (tort)

A

Tenant is liable for injuries sustained by third parties invited by tenant (even if landlord promised to make repairs).

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102
Q

Fixtures Definition

A

Once-moveable chattel that is annexed (attached) to real property, indicating an intent to permanently improve property

103
Q

Fixtures Chareristics

A
  • Fixtures pass with ownershop of the land
  • Tenant installation qualifies as a fixture if there is an express agreement between the landlord and the tenant
    • If no agreement, tenant may remove the chattel that tenant installed so long as removal does not cause substantial harm to the property.
104
Q

Fixtures and Voluntary Waste

A

If tenant removes fixtures, he commits voluntary waste.

105
Q

Landlord’s Remedies for Tenant Breach

Tenant retains possession

A

Landlord may

  • File notice of eviction
  • Contiune the lease and sue for rent due
106
Q

Landlord’s Remedies for Tenant Breach

Tenant abandons premises

A

Landlord may

  • Surrender – treat the abandonment as tenant’s surrender and accept it, releaseing the tenant from the lease
  • Ignore (minority rule) – hold tenant liable for unpaid rent
  • Re-let (maj) – lease the premises to a new tenant and hold the breaching tenant liabe for any losses
107
Q

Landlord – No self Help

A

Landlord may not engage in self help upon tenant’s breach

108
Q

Landlords have the following duties to tenant:

A
  • Duty to delivery possession
  • Implied Covenant of Quiet Enjoyment
  • Implied Warranty of habitability
  • Tort liability
109
Q

Landlord’s Duty to Delivery Possession

A

Majority – actual possession; LL must deliver physical possession to tenant

Minoirty – legal possession; new tenant is responsible for holdover tneant.

110
Q

Tenant’s rememdy for landlord’s breach of duty to give possesson ____

A

Money damages

111
Q

Implied Covenant of Quiet Enoyment Definition

A

A tenant has an implied right to quiet use and enjoyment of the premises, without interference from the landlord. A breach may occur by actual or constructive evication.

112
Q

Implied Covenant of Quiet Enjoyment

Actual Eviction

A

Landlord wrongfully evicts or execludes tenant from property

113
Q

Implied Covenant of Quiet Enjoyment

Constructive Eviction

A

Landlord’s Action or inactions render the property uninhabitable.

  • Substantial Interference
    • major and/or chroni problems
  • Notice
    • tenant must inform the landlord and give him a reaosnable opportunity to repair; LL must fail to act meaninfully.
  • Move out
    • Tenant must vacate within a reasonable period after the landlord fails to repair.
114
Q

Retaliatory Eviction

A

LL is prohibited from retaliatorty eviction if a tenant lawfully reports housing code violations

115
Q

Implied Warranty of Habitability

Characteristics

A

Residential property must be fit for basic human habitataion

  • Not applicable to commerical leases
  • Absolute duty – cannot be modified in lease terms
  • Local code of case law specifies the standard for a breach
116
Q

Tenant’s Remedies for LL’s Breach of IWH

A
  • Move
    • Vacate the property and terminate the lease
  • Repair
    • make reasonable repairs and deduct the costs from future rent
  • Reduce Rent / Withhold
    • tenant can reduce rent or stop payment until a court determines the fair rental value given the breach
      • Must use escrow
  • Remain
    • tenant can remain in possession and seek money damages.
117
Q

Landlord’s Tort Liability

Common Areas

A
  • Duty of reasonable case
    • LL must exercise reasonable case in maintaining and repairing common areas.
118
Q

Landlord’s Tort Liability

Latent Defects

A
  • Duty to disclose
    • LL has duty to disclose hidden defects he should reaosnably know of
119
Q

Landlord’s Tort Liability

Assumption of Repairs

A
  • Negligence Standard
    • LL is liable for harm caused by negligent repairs he chooses to undertake
120
Q

Landlord’s Tort Liability

Public Use

A
  • LL is liable for known defects if he knows the property is for public use and tenant is unlikley to make repairs
    • concert hall
121
Q

Landlord’s Tort Liability

Seasonal or Short Term lease of a Furnished Dwelling

A
  • LL is liable for defects that cause harm to tenant
    • Broadest liability
122
Q

Unless restricted by ____ terms, a tenant may transfer her leashold interest in whole or in part

t/f

A

lease

True

123
Q

Assignmnet

A

Entire lease hold transfers from tenant to assignee

  • Assignee (person who assumes lease)
  • Assignor (tenant who assigns lease)
  • Assignee is in privity of estate with LL
  • Assignor remains in privity of contract with LL
  • Assignee owes rent direclty to LL, but assignor may be held liable for unpaid rent
124
Q

Sublease

A

Partial leashold transfer from sublessor to sublessee

  • Sublessor (the tenant who subleases)
  • Sublessee (the tenant’s sub-tenant)
  • Sublessor is in privity of contract and estate with LL
  • Sublessee is not liable to landlord for rent and is not bound by any covenants unless expressly assumed.
125
Q

Assignemnt/ Sublease Provisions

A

Construced agaisnt the LL

  • Lease provisisons restricting assignment or sublease are enforceable, but generally construed agaisnt the LL
  • Once LL gives a tenant permission to assign or sublet, such provisisons are thereafter waived.
126
Q

Easement Definition

A

A non possessory property interest that confers a right to use another’s land.

127
Q

Easement Appurtenant

A
  • Entitles a dominant eatate owner to use a servient estate’s land
  • Attaches to the dominant estate and passes automatically (even if not mentioned in the conveyance).
128
Q

Easement in Gross

A

Entitles an individual or entitity (not a dominate land owner) to use the servient estate.

  • Does not attach to the land
  • Similar to a licnese but irreovcable; may be transferred.
129
Q

Affirmative Easement

A

Entitles its holder to make affirmative use of the servient estate

130
Q

Negative Easement

A

Entitles its holder to restrict the servient estate from otherise permissible activities

131
Q

Creation of Easements

List Types

A
  1. Prescription
  2. Necessity
  3. Impication
  4. Express grant or reservation
132
Q

Easement by Prescription Definition

A

A process of acquiring an easement; similar to adverse possession

133
Q

Easement by Prescription Elements

A
  1. Continuous
    1. for the applicable period
  2. Open & Notorious
    1. owner knoews or should know of the use
  3. Actual
  4. Hostile
    1. Without owner’s permission
134
Q

Easement by Implication Definition

A

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots

135
Q

Easement by Implication Definition

Elements

A
  1. Easement existed prior to division of a single tract of land
  2. Common grantor’s use is continuous and apparent
  3. Use is reaosnably necessary for enjoyment of the dominant tenement
  4. Parties intended the use to contiune after division of the land
136
Q

Easement by Implication may be implied without prior use if:

A
  1. Subdivision plat– lots in a subdivision are sold with reference to a map plan
  2. Profit a prendre – holder of a profit a prendre has an implied easement to pass over the land as reaosnably necessary to extract materials
137
Q

Easement by Necessity Definition

A

An easement can arise if access to or from a property is impossible without the easement.

138
Q

Easement by Necessity Elements

A
  1. Creation usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility
139
Q

With an Easement by Necessity, the owner of the servient estate can choose a reasonable ____ for the easement

140
Q

Easement by Necessity terminates automatically when the _____ ends.

141
Q

Easement by Grant or Reservation Elements

A
  1. In writing
  2. Signed by the servient estate holder
  3. Satisfies deed formalities LEAD
142
Q

Scope of Easement

A

An easement’s scope is determined by the terms or conditions that created it.

  • In interpreting an easement’s scope, courts will consider the reasonable intent of the origional parties.
143
Q

Expansion of Easement

A
  • Easement holders cannot unilaterally expand the scope their easement through overuse or misuse
144
Q

Overuse or misuse of an easemement results in an _____ not ____ of the easement

A

Injunction, not termination

145
Q

Duty to Repair Easements

A
  • Easement holder has a duty to make repairs if he is the sole user.
  • If both the servient landlowner and the easement holder use an easement, the repair costs are apportioned.
146
Q

Easements may be terminated in any one of the following way:

8

A
  1. Estoppel
  2. Necessity ends
  3. destruction of servient tenenment
  4. Release
  5. Abandonment
  6. Merger
  7. Prescription
  8. Expiration
147
Q

Negative Easements

A

Entitles the holder to prevent the servient landlower from enagaging in otherwise permissible actions on his land

148
Q

Four categories of negatice easements

A
  1. Light
  2. Air
  3. Support
  4. Stream or water from artificial flow
149
Q

Creation of a negative easement

A

Can only be created by express grant.

150
Q

License Definition

A

A privilege to enter another’s land for some delineated purpose (not an interest in land)

151
Q

A licenseor may revoke the privilege at any time, unless estoppel applies.

t/f

152
Q

Estoppel will prevent a license from being revoked when:

A

The icensor has allowed the licensee to contrible substantial money, labor, etc.

153
Q

License does not need to meet the ___ requirements

154
Q

Licenses ____ alienable

155
Q

Profit

A

A nonpossessory property interest entitling its holder to enter a servient estate to remove resources.

  • All rules governing easements apply to profits
    • Creating, transferability, and termination
156
Q

A profit may be extingusihed through:

A

Misuse or overuse of resources on the servient estate.

157
Q

Real Covenant Definition

A

A promise to do or refrain from doing something related to land.

158
Q

Real covenants ___ with the land. This means that subsequent owners may:

A

Run with the land

This means that subsequent owners may be burdened by it or may enforce it.

159
Q

Affirmative Covenant

A

A promise to do something related to the land.

160
Q

Restrictive Covenant

A

A promise to refrain from doing something related to the land.

161
Q

Termination of a real covenant can occur by:

A
  1. Written release
  2. Merger of benefitted and burdened estates
  3. Condemnation of burdened property
162
Q

Covenants vs. Equitable Servitudes

A

Covenant = money damages

Equitble Servitude – injunction

163
Q

Requirements for Burdens of Covenant to Run with the Land

A
  1. Writing
    1. Origional covenant must be in writing
  2. Intent
    1. Parties intended to bind successors in interest
  3. Touch & Concern
    1. Covenant must affect parties’ legal relationship
  4. Horizontal & Vertical Privity
  5. Notice
    1. Successor in interest had notice of the covenant
164
Q

Horizontal Privity

A

Relationsgio betwen the conveanting parties

  • Grantor/Grantee
  • Landlord/Tenant
  • Mortgagor/Mortgagee
165
Q

Vertical Privity

A

Relationship between convenanting parties and their successors in interest

  • Contract
  • Devise
  • Decent
166
Q

Requirements for the benefit to run with the land

A
  1. Writing
  2. Intent
  3. Touch & Concerns the land
  4. Vertical Privity
167
Q

_____ Privity is not required for the benefit to run

A

Horizonatal

168
Q

______ is not required for the benefit to run with the land

169
Q

Equitable Servitudes Definitions

A

A promise enforced in equitity against successors through injunctive relief

170
Q

Equitable Servitudes Elements

A
  1. Writing
  2. Intent
  3. Touch & Concern
  4. Notice
171
Q

Equitable servitudes do not require ____ or ____

A

horizontal/vertical

172
Q

Defenses to enforcement of an Equitable Servitude

A
  1. Pervasive changes in the neighborhood
  2. Estoppel
  3. Acquiescence
  4. Unclean Hands
  5. Laches
173
Q

Reciprocal Negative Easements Definition

A

Lot owners in residential subdivision may enforce restrictions on the use of property agaisnt other subdivision lot owners.

174
Q

Reciprocal Negative Easement Elements

A
  1. General Common Plan or Scheme
    1. Recorded Plat
    2. General pattern of restrictions
    3. Oral Representations
  2. Notice
    1. Actual
    2. Inquirty
    3. Record
175
Q

Adverse Possession Definition

A

A trespasser may acquire title to another’s property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s rights.

176
Q

Adverse Possession Elements

A
  1. Continuous for the statutory period
    1. Continuous for the statutory period
  2. Open & Nororious
    1. must be conspciuous, such that a true owner would know of the trespass if he inspected his property
  3. Actual & Execlusive
    1. Must possess a reasonable portion of the property to the execlusion of the owner and the public
  4. Hostile
    1. Possession must be without owner’s permission.
177
Q

No knowledge or intent requirement, trepasser need not intend to adversly possess the land

t.f

178
Q

Adverse Possession and Leaseholds

A

If a tenant stays in possession after his lease hs expired, he is presumed to have permission through a tenancy at sufferance

179
Q

Adverse Possession & Disabilities

A

SOL does not begin to run if the true owner was under some disability when the adverse possession began.

  • Disability after adverse possession does not toll SOL
180
Q

SOL for adverse possession does not run against future interest holders until the interest becomes ____

A

Possessory

181
Q

Restrictive covenants will not run with the land if the adverse possessor’s use violated the covenant; but ovenat will run if the adverse possessor’s use:

A

Complied with the covenant.

182
Q

Color of Title

A

A claim of title to property not actually owned .

  • Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property.
183
Q

Government Land cannot be adversely possessed.

t/f

184
Q

Leasing & Adverse Possession

A

Adverse possessors can lease a protion of the land to a third party and still possess the property.

185
Q

Title taken by adverse possession is not marketable unless there has been

A

An action to quiet title.

186
Q

Adverse possession and tacking

A

Adverse possessors can tack together successive period of adverse possession to satify the statutory period, even if successive possesion was by different adverse possessors.

187
Q

To tack adverse possessors, the possession must be ____

A

Successive, there cannot be gaps between period of adverse possession.

188
Q

Tacking of adverse possessors requires ____ between successive adverse holders.

A

Privity

  • Satisfied if subsequent adverse possessor takes by descent, devise, or by deed purporting to convey title.
189
Q

Tacking is not permitted if one adverse claiminat ____ the preceding claimant

190
Q

Co-Tenants & Adverse Possession

A

Co-tenants may not adverely posses each other’ interest unless ouster has occurred.

  • To adversely possess a co-tenant, the co-tenant msyt be execluded from the land for the SOL
  • The SOL begins once execlusion begins
191
Q

Elements of a Land Sales Contract

A
  1. In writing
  2. Signed by the parties to be bound
  3. Articulate essential terms (Price, description of land, names of parties)
192
Q

Grantee is assumed to have the power to fill in his name on the deed

t/f

193
Q

Exception to the SOF requirments for a Land Sales Contract

A
  1. A land sales contract is outside the SOF if the buyer does two of the follow three:
    1. Pays all or part of the purchase price
    2. Possession
    3. Improvements
194
Q

Land Sales Process

A
  1. Contract
  2. Escrow Period
  3. Closing
  4. Conveyancing
195
Q

Equitable Conversion

A

During escrow, buyer ownes the real property interest, but seller owns personal property.

196
Q

Death of a Party – Land Sales Contract

A

If a buyer or seller dies before closing, rights to the contract pass according to the interest held

  • Seller’s interest passess as personal property
  • Buyer’s interest passes as real property
197
Q

Risk of Loss – Land Sales Contract

A

If property is destroyed before closing through no fault of the parties, buyer bears the risk of loss.

  • Parties can contract differently
  • Seller must credit any insuracne proceeds from loss agaisnt the purchase price
198
Q

Implied Promises in Land Sales Contracts:

Marketable Title

A
  • Promises to provide marketable title
    • Promise that title is free from risk of litigation
      • Defenses rendering title unmarketable
        • Adverse Possession
        • Encumbered by interests (servitudes, mortages, future interests)
        • Zoning Violations
199
Q

Implied Promises in Land Sales Contracts:

Statements of Material Fact

A
  • Promises to disclose & make no material false statements
    • Seller must not materially misrepresent facts or make false statements concerning the property
    • Seller must disclose latent defects
    • Seller cannot limit liability
200
Q

Implied Promises in Land Sales Contracts:

New Property

A

Seller/buyer is subject to an implied warranty of fitness/quality in construction

201
Q

Remedy for Breach of Land Sales Contract

A
  • Buyer must notify seller before closing and give reasonable time for seller to cure defects
    • If seller fails to cure, buyer can rescind, file for damages, demand SP, or file suit to quiet title
    • If buyer fails to notify seller before closing, contract mergers with the deed and seller is not liable.
202
Q

Elements of Deed

A
  1. Lawfully executed
    1. Deed must be signed by the grantor and must reaosnably identify the parties and the land
  2. Delivered
    1. Requires intent to be bound by the conveyance
    2. Title passes upon delivery; cannot be rescinded
    3. Grantee must accept the deed; acceptance is presumed
    4. Rejection by grantee = inefective delivery
203
Q

Three Types of Deeds

A
  1. General Warranty
    1. Contains all six covenants
  2. Special Warranty
    1. Grantor has not conveyed the land to another
    2. The land is free from encumberances
  3. Quit Claim
    1. Transfers whatver interest grantor purports to have in property
    2. No Covenants included.
204
Q

General Warranty Deed Present Covenants

A

Present covenats are only breached at the time of delivery.

  1. Seisin
    1. Grantor is the rightful owner and the deed coveres the described land
  2. Right to Convey
    1. Grantor has the right to convey
  3. Agaisnt Encumberances
    1. Grantor promises the land is free from encumberances
205
Q

General Warranty Deeds

Future Covenants

A

Future covenants are only breached after delivery

  1. Quiet Enjoyment
    1. Grantor promises that grantee will not be distrubed by a thid party’s claim of lawful title
  2. Warranty
    1. Grantor agrees to defend against lawful claims of title by others
  3. Further Assurances
    1. Grantor promises to perform future acts reaosnably necessary to perfect the title conveyed
206
Q

BFP Definition

A

A BFP purchases property for value (i.e gives money) without notice of a prior conveyance.

207
Q

BFP purchasers

A

Includes mortgages for value

Does not include donees, heirs, or devisees

208
Q

BFP Notice

A

A buyer has notice of a prior conveyance by:

  • Actual
    • Actual knowledge, from any source
  • Inquirty
    • What a reasonable inspection of the land would reveal (regardess if buyer actually inspects)
  • Notice
    • Knowledge from a routine title seach
209
Q

Notice Statutes

A

Subsequent BFP always prevails whether or not he recorded first, a subsequent BFP always prevails over a prior grantee who fails to record

210
Q

No conveyance or mortgage of an interest in land shall be vlaid against any subsequent pruchaser for vlaue without notice thereof unless it is recorded.

211
Q

Race Notice

A

First subsequent BFP to record prevails

212
Q

No conveyance or mortgage of an interest in land shall be vlaid against any subsequent purchaser for value with out notice thereof whose conveyance is first recorded.

A

Race-Notice

213
Q

Race Statutes

A

First grantee to record prevails, regardless of whether buyer is a BFP

214
Q

No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is recorded first.

215
Q

Shelter Rule

A

One who takes from a BFP will prevail against any interest the transferor_BFP would have prevailed agaisnt even if the transferee had actual notic of a prior conveyance.

216
Q

Wild Deeds

A

A recorded deed unconnected to the chain of title

Record notice cannot be derived from a wild deed.

218
Q

Estoppel by Deed

A

One who conveys land in which she has no interest is estopped from denying the validity of the conveyance if she subsequently acquires the same interest

219
Q

Mortgage Definition

A

A secuirty interest in land that serves as collateral for the repayment of a loan.

220
Q

Mortgages must be in ____

221
Q

Mortgagor

Mortgagee

A

Mortgagor = debtor/borrower

Mortgagee = creditor

222
Q

Parties Rights

Lien Theory Mortgage

A

Under majority lien theory, mortgagor has title and the right to possession absent foreclosure.

Mortgagee has a lien, conferring a right to take action for ownership of the land if the mortgagor defaults on the loan

223
Q

Parties Rights

Title Theory Mortgage

A

Under title theory, mortgagee has title to the property during the loan term, not mortgageor

224
Q

Equitable Mortgage

A

Debtor gives creditor a deed to his land as collateral for the debt instead of executing a mortgage

225
Q

A mortgagee (creditor) can transfer her interest by:

A
  1. Endorcing the mortgage note and delivering it to transferee
  2. Executing a separate assignment of the mortgage interest.
226
Q

Holder In Due Course Definition

A

A holder in due course takes a mortgage note free of any personal defenses the mortgagor coud have raised against the origional mortgagee.

Holder in due course still remains liable for

  • material alteration
  • duress
  • fraud
  • incapacity
  • infancy
  • illegality
  • insolvency
227
Q

Elements of Holder in Due Course

A
  1. Negotiable Note
    1. made payable to the named mortagee
  2. Endorsed and Signed
    1. endorsed and signed by named mortgagee
  3. Delivered
    1. delivered to the transfreee
  4. Good Faith and Value Paid
    1. transferee must take the note in good faith without notice of illegality and pay value.
228
Q

Foreclosure

A

Unpon default, mortgagee can satisfy debt through foreclosure by judicial action

  • Property is sold
229
Q

Difficency Judgement

A

If the debt exceeds the sale proceeds, mortgagee can file suit agaisnt mortgagor for debt balance.

230
Q

Redemption in Equity

A

At any time before the foreclosure sale, mortgagor can redeem the property by paying the amount due.

231
Q

Acceleration Clause Mortgage

A

If acceleration cluase, the owner must pay off the entire loan and interest plus back payments.

Acceleration cannot be waived in origional contract, but can be waived later with consideration. (Clogging)

232
Q

Mortgagee Possession Rights

A

Mortgagee’s rights to possession prior to foreclosure depends on the jurisdiction

  • Lien Theory – no right to possess before forclosure
  • Title Theory– right to possess at any time upon demand
233
Q

Mortgagee in possession assumes the risk of account for:

A
  • Rents
  • Managing property
  • Tort Liability to 3rd Parties
234
Q

Creditors must record their interests

t/f

235
Q

Purchase Money Mortgages (PMM)

A

Superior to all interests

  • PMM mortgage is given in exchange for funds used to buy the property. Given to the seller or a mortgagee.
236
Q

If PMM is given to seller and lender, the seller’s PMM is ____ to the third-party lenders

237
Q

Junior Interests

A

Junior interests are terminated by foreclosure of a superior claim.

  • Foreclosure terminates all junior interests; junior interest holders cannot look to the land
  • Junior holders can seek a deficiency judgment
  • Junior interest holders are necessary parties to a foreclosure action otherwise they will remain on the land.
238
Q

Senior Interests

A

Senior interests are unaffected by junior interest foresclosure.

  • Buyer of foreclosed property takes it subject to the senior interests.
  • Buyer is not liable for senior debt but the senior mortgage remains on the land.
239
Q

Lateral Support

A

Ownership of land includes the right to have the land supported in its natural state by adjoining land.

  • Negligence – if excavation causes damage to structure
  • Strict liability – if excavation causes damage to natural land
241
Q

Subjacent Support

A

Underground structures must support surface structures existing when the subjacent estate was created.

  • Strict Liability – for damage to pre-existing structures
  • Negligence – for damages to structures erected after subjacent
242
Q

Riparian Doctrine

A

Water belongs to those who own land bordering the watercourse.

243
Q

Riparian Doctrine

Reasonable USe Theory

A

Majority – riparian owners share rights to reasonable use and are liable to other owners if their use unreasonably interfers with the other owners’ use.

  • Balance utility vs. gravity of harm
  • Natural use prevails over artificial use
244
Q

Riparian Doctrine

Natural Flow Theory

A

Minority – riparian owners may be enjoined for any use resulting in a substantial or material reduction in others’ water quality.

  • Natural use prevails over artificial use
245
Q

Prior Appropriation Doctrine

A

Water rights are acquired by actual use:

  • Priority of beneficial use determines rights to water
  • First individual to make beneficial use of water has superior legal rights to its use
246
Q

Ground Water

A

Water beneath the surface not confined to a known channel (well water)

  • Surface owner is entitled to make a reasonable use of ground water but must not be wasteful.
247
Q

Surface Water

A

Water from rain, springs, or other runoff that has not yet reached a natural watercourse

  • Landowners can genrally use surface water as they please but are liable for interrupting its flow
248
Q

Surface Water

Natural Flow Theory

A

Owners cannot unreasonably alter natural drianage

249
Q

Surface Water

Common enemy theory

A

Owners can do anything to change drainage or combat flow unless it causes unnecessary damage to others’ land

250
Q

Surface Water

Reasonable use theory

A

Utility of use is balanced agaisnt the gravity of the harm from that use.

251
Q

Special Use Permit

A

Certain property uses require a special use permit even where zoning generally allows the type of use

  • hosptials and drive thrus in commercial zoning
252
Q

Extractions

A

Condition for gov’t approval of a new develoment

  • Condition is usally a payment or gift of property to Gov’t to offset the develoment’s demands on services.
253
Q

Exaction Elements

A

Exactions are unconsctitutional unless they satisfy the following:

  • Nexus
    • there must be a rational relationship between the exaction sought by the Gov’t and the burden on public facilities
  • Proportionality
    • Exaction must be reasonably relate, in nature and scope, to the impact of the development.

Property Critical Pass (1 decks)

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