Property Flashcards
RAP applies to
(1) Executory interests
(2) Contingent Remainders
(3) Vested Remainders Subject to Open
(4) Purchase Option
(5) Right of First Refusal
Common Law - Transfer of Grantor’s Future Interests
Via intestacy ONLY
Dealing with RAP
(1) Double check RAP applies to the interest
(2) Is it possible that after everyone currently alive is dead, and more than 21 years pass, someone else could claim an interest?
(3) If yes, then the interest is wiped out.
Co-Tenants + Profits
If profit is produced by one co-tenant’s efforts (and not by a third-party like through rent) –> no right to share
Covenants vs. Equitable Servitudes
Covenants –> seeking money damages
Equitable Servitudes –> Seeking equitable remedies (i.e., injunction)
Covenant - Creation
(1) Privity
(2) Intent - writing must have language indicating the parties’ intent for the covenant to bind successors in interest / intent for the restriction to run with the land
(3) Notice - current owner of SERVIENT estate must take the land with notice of the covenant
(4) Touch and Concern the Land (use and enjoyment of the land is reduced for servient and increased for dominant estate)
To enforce benefit – must have writing (SOF), intent that covenant runs with land, vertical privity and T(ouches and concerns)
To enforce burden – must have above AND horizontal privity AND new owner had notice of the covenant.
Covenant - Privity
(1) Horizontal Privity –> Privity of K in connection with the land between the original covenantor and covenantee
(2) Vertical Privity –> Relationship between the original party and their successor
NOTE: For a burden to run, the privity of estate will only exist when the holder of the servient estate transfers all of his interest in the servient estate to the new owner (so it must be a FULL transfer)
Equitable Servitude Requirements
I - N - T
Intent
Notice
Touch and Concern the Land
To enforce benefit – (1) writing (SOF); intent; and T
To enforce burden –> above + new owner must have notice of the servitude.
Implied Reciprocal Servitude
Look for a filed declaration containing the restrictions, which may be negative ONLY
Statute of Frauds does NOT apply.
Look for a common scheme/plan - relevant factors include (1) large percentage of lots expressly burdened; (2) oral representations to buyers; (3) advertisements to buyers; (4) or recorded plot maps.
Current owner takes with notice of the restriction
Ways to Terminate Covenants or Equitable Servitudes
(1) Written Release
(2) Merger of the dominant and servient estates
(3) Abandonment
(4) Estoppel
(5) Changed circumstances so that the reason behind the merger is no longer valid
Easement Appurtenant
When there’s an easement with a dominant and servient estate
How can an Easement be created?
(1) Expressly –> the writing must satisfy the SOF
(2) Implication
By prior use
By Necessity
By plat
(3) By Prescription (adverse possession)
Easement Implied by Prior Use
(1) a single tract of land is divided by a common
owner;
(2) a pre-existing use by the grantor is established
prior to the division;
(3) continuous and obvious indication that the use was meant to be permanent;
(4) the use affects the value of the land conveyed;
AND
(5) the use is reasonably necessary for the owner’s
use and enjoyment of the land conveyed
(important or highly convenient).
Easement by Necessity
Usually need it for access to public roads
(1) Common ownership of dominant and servient estate, then severance
(2) strict necessity for the easement at the time of severance
Scope of Easements
What’s expressly stated only. Otherwise, can be used to extent that it’s reasonably necessary to do so
If someone goes beyond what’s reasonably necessary, the easement doesn’t terminate. Instead the servient can sue for injunction or damages.
NOTE: Holder of the easement can do what’s reasonably necessary to maintain the easement, even if it interferes with servient’s use of the property
Terminating Easements
(1) Estoppel – when the servient estate owner
reasonably relies (or materially changes
position) on an assurance that the easement will
not be enforced;
(2) Termination of the necessity;
(3) Involuntary destruction of the servient estate;
(4) Condemnation of the servient estate;
(5) Written release;
(6) Abandonment – a physical action showing an
intent to never use the easement again;
(7) Merger of the properties (if land is separated
again, it does not revive the easement); OR
(8) Prescription.
Profits
Holder of the profit has the right to go on someone’s land and take something from it. Can only be created expressly or by prescription
Otherwise, treat as easements.
Licenses
Privilege to do something on someone else’s property. PERSONAL right. Not an interest in the land.
These are freely revocable at any time unless the license is
(1) coupled with an interest OR
(2) executed (licensee spends money/labor in reliance on the license, thus the license is irrevocable until the licensee gets value out of the expenditure.)
Can also terminate on the death of the licensor OR conveyance of the servient estate.
Are licenses transferrable?
NO
Fixtures
Personal property attached to the land IF it’s owned by the landowner and so necessary/convenient for the use of the land that it’s deemed to be a part of the land
Intent to annex a chattel = question of fact (reasonable person standard)
A deed to the land transfers all fixtures unless stated otherwise.
mortgage covers the land and all its chattel.
Constitutional Limitations to Zonining
Procedural Due Process - Requires notice and opportunity to be heard
Substantive Due Process - Zoning ordinance cannot be arbitrary or capricious.
Equal Protection - Zoning ordinance cannot treat similarly situated people differently.
First Amendment - Subject to it if it regulates billboards or aesthetics
Takings
5th Amendment
If owner is denied all reasonable, economically beneficial uses of the land.
Balancing Test Factors:
(1) Economic impact of the regulation
(2) Extent regulation has interfered with distinct investment-backed expectations; and
(3) Character of government action
Rezoning
If a rezoning is inconsistent with a comprehensive plan for that area, then it must be based on a change of conditions in the land, neighborhood, environment, or public opinion.
Rezoning of a land is quasi-judicial and requires procedural due process. A broader rezoning is legislative.
Nonconforming Use
Use permitted by zoning statutes/ordinances to continue, even those similar uses are not generally permitted in the area
May not be expanded or rebuilt after substantial destruction.
Local ordinances also often prohibit the enlargement, extension, or alteration of a nonconforming use
