Property Flashcards

Question

Easement

Answer 1

Grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land

Answer 2

Right to go on to and do something on another's land

Answer 3

Right to prevent landowner from doing something - expressly created by a writing signed by the grantor LASS L - Light A - Air S - Support S - Stream water from an artificial flow

Answer 4

Benefits holder in use/enjoyment of own land - ALWAYS 2 PARCELS INVOLVED Two parcels o Dominant -> Derives benefit o Servient -> Bears burden Automatically transfers of dominant tenement (dom parcel is sold), regardless of being mentioned in the conveyance Automatically transfers of servient estate (servient parcel is sold) UNLESS the new owner is BFP without notice of easement

Answer 5

An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land Holder has personal/commercial advantage unrelated to use/enjoyment of land - Servient land burdened - NO benefited/dominant tenement Examples o The right to place a billboard on another’s lot (commercial) o The right to swim in another’s pond (not commercial) o The utility company’s right to lay power lines on another’s lot (commercial) Not transferable unless it is for commercial purposes

Answer 6

PING P - Prescription I - Implication N - Necessity G - Grant PRESCRIPTION - COAH -> Continuous and uninterrupted; Open and notorious; Actual use (need not be exclusive); Hostile Permission defeats this IMPLICATION - Created by operation of law; they’re exception to the SoF - Preexisting use -> previous use on the servient part was apparent and continuous AND parties expected easement to run bc it is reasonably necessary to dom's use and enjoyment NECESSITY - Will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land o Owner has servient parcel has the right to locate the easement GRANT - in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of SoF

Answer 7

When a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose Easement can only be reserved for the GRANTOR Grantor CANNOT reserve for anyone else = void!!

Answer 8

END CRAMP E - Estoppel (servient owner materially changes positions in reliance) N - Necessity (when the needs, UNLESS it is in writing!) D - Destruction (of servient land...cannot be voluntary -> fire, flood, etc.) C - Condemnation (of servient land like Eminent Domain) R - Release (by holder to servient owner in writing) A - Abandonment (physical action demonstrating intent to not use easement again like building a structure across the easement) M - Merger (Owner of easement & Servient land held by same person) P - Prescription (COAH -> adverse possession elements)

Answer 9

Mere privilege to enter another's land for some delineated purpose Creation -> no writing required and freely revocable at will of licensor Ex. -> Tickets to Broadway show. All other 200 people get to see but you. Your ticket is a mere freely revocable license. Ex. -> Neighbors talking by a fence. Grantor orally grants an easement for more than 1 year? Invalid easement bc not in writing so turns into license!

Answer 10

Entitles holder to enter servient land & take some resources - For example, the soil, some substance of the soil (such as minerals, timber, or oil) or some product of the property (such as fish or game) - All the rules governing creation, alienation, and termination of easements are applicable to profits - Profit may be extinguished through surcharge (misuse that overly burdens servient land)

Answer 11

Plaintiff wants money damages? -> COVENANTS Plaintiff wants an injunction? -> EQUITABLE SERVITUDE

Answer 12

Any successor in interest to the burdened estate will be bound by the covenant as if they had expressly agreed to it: WITHN W - Writing (OG Promise in writing) I - Intent (Intended for Covenant to run) T- Touch and Concern (Pertains to involved land) H - Horizontal and Vertical Privity (see below) N - Notice (Notice of promise when successor took) HP -> nexus between the OG promising parties (succession of estate)  OG parties were vis-à-vis parties (Ex. grantor-grantee) when covenant was created  In other words, the 2 must have shared some interest in the land independent of the covenant  HP is difficult to establish – its normally why many burdens will not run VP -> Nexus between successor and original covenanting party (non-hostile)  Only time this won’t be present is when successor acquired her interest through adverse possession - Present when there is non-hostile nexus such as a contract, devise, or descent

Answer 13

Does the successor have standing to enforce the covenant? WITV W - Writing (OG Promise in writing) I - Intent (Intended for Covenant to run) T - Touch and Concern (Pertains to involved land) V - Vertical Privity (Does not need horizontal privity but must have non- hostile nexus)

Answer 14

An equitable servitude is a covenant (that is, a promise to do or not do something on the land) that, regardless of whether it runs with the land at law, can be enforced in equity against successors of the burdened land unless the successor is a bona fide purchaser (meaning, a subsequent purchaser for value without notice of the covenant).

Answer 15

WITNES W - Writing (Generally, OG Promise was in writing) I - Intent (OG parties intended promise would be enforceable) T - Touch and Concern (Promise affects the parties as landowners) N - Notice (Subsequent purchasers were put on notice... Actual, Inquiry, or Record when they acquired land) ES - Equitable Servitude NO PRIVITIES REQUIRED FOR EQUITABLE SERVITUDES -> WOOHOOO

Answer 16

The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. Thus, if a developer subdivides land, and some deeds contain restrictive covenants while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants. Two Elements 1. Scheme of development (including D's lot) when sales began 2. D had notice of promise when they took - Actual -> literal knowledge - Inquiry -> neighborhood seems to conform to the common restriction - Record -> imputed to buyers on the basis of the publicly recorded documents If the Scheme arises AFTER lots are sold, no implied servitude can arise without express covenants

Answer 17

1. Neighborhood conditions have changed so much that enforcement would be inequitable 2. Unclean hands - person seeking enforcement is violating a similar restriction on his own land 3. A benefited party acquiesced in a violation of the servitude by a burdened party 4. Estoppel - a benefited party acted in a way that a reasonable person would believe the covenant was abandoned or waived 5. Laches - benefited party fails to bring suit against the violator within a reasonable time

Answer 18

COAH C - Continuous and Uninterrupted use for the given statue's period (can tack on time from predecessors as long as there is privity) O - Open and Notorious (Discoverable upon inspection to put true owners on notice) A - Actual and Exclusive (Actual possession of reasonable portion of land and not sharing with true owner) H - Hostile (without owner's permission... permission defeats this - ALSO adverse possessors state of mind is irrelevant)

Answer 19

SoL will not run against a true owner who is afflicted by a disability at the inception of the adverse possession (meaning, when the cause of action first accrued)... if disability came into play after the adverse possessor started their gig, it don't matter!!

Answer 20

SoL does not run against a holder of a future interest until the interest becomes possessory

Answer 21

Adverse possessor uses land in VIOLATION of a recorded real covenant for the limitations period? -> They takes title free of the real covenant Adverse possessor COMPLIES with the covenant for the statutory period -> They take title subject to the real covenant In either case, if an adverse possessor uses land for the limitations period, she DOES take title to the land.

Answer 22

Must be in writing signed by the party against whom enforcement is sought (the defendant) to comply with SoF AND 1. Identify the parties 2. Describe the property 3. Include the price or means of determining the price **both parties DO NOT have to sign... only the one being sued is required for enforcement Inaccurate Land Description? -> Specific performance with a pro rata reduction in price!

Answer 23

Allows a buyer to enforce an oral real estate contract by specific performance if: 1. Oral contract is certain and clear, AND 2. The acts of partial performance clearly prove the existence of a contract - Buyer has taken POSSESSION of the property - Buyer has PAID the purchase price or a significant portion of the purchase price - Buyer has made SUBSTANTIAL IMPROVEMENTS **NEED 2/3 OF THESE ^^

Answer 24

Once the contract is signed, equity regards the buyer as the owner of the real property (Equitable title is with buyer BUT legal title has not been conveyed yet! This means RISK OF LOSS is on the BUYER! - Even though the risk of loss is on the buyer, if the property is damaged or destroyed, the seller must credit any fire or casualty insurance proceeds they receive against the purchase price the buyer is required to pay

Answer 25

Seller’s implied promise to provide title reasonably free from doubt/threat of litigation on ON THE DAY OF CLOSING! Common defects that render title unmarketable:  Defects in record chain of title  Encumbrances (mortgages, liens, easements, restrictive covenants)  Zoning violations ***QUITCLAIM deeds does not in any way effect the implied covenant to marketable title - it still exists!!***

Answer 26

Buyer must notify seller and give the seller reasonable time to cure the defects  If seller fails -> rescission, damages, SP with abatement, and quiet title suit In a contract for the sale of real property, the seller of the land is entitled to use the proceeds of the sale to clear title if she can ensure that the purchaser will be protected * The seller's offer to escrow the funds in this case should act as such guarantee

Answer 27

Failure to disclose  1. Seller must know or have reason to know of the defect  2. Seller must realize that the buyer is unlikely to discover the defect; AND  3. The defect must be serious enough that the buyer would probably reconsider the purchase

Answer 28

To pass title the Deed must be LEAD - Lawfully Executed and Delivered Elements of a deed WWUI W - Writing signed by grantor W - Words of intent transfer U - Unambiguous description of the land I - Identification of the parties **NO CONSIDERATION NEEDED**

Answer 29

General Warranty Deed Special Warranty Deed Quitclaim Deed

Answer 30

- No covenants for title - Worst deed! - Grantor isn’t even promising that he has title to convey!

Answer 31

- Best Deed!! - It warrants against all defects in title, including those attributable to grantor’s predecessors! - Contains all 6 of the following covenants: o Present covenants (breached at delivery)  Seisin -> grantor owns  Right to convey -> grantor can transfer  Against encumbrances -> No servitudes/liens o Future covenants (breached if grantee disturbed in possession)  Quiet enjoyment -> No 3rd party lawful claims  Warrant -> Grantor will defend  Further Assurances -> Grantor will perfect **Present covenants do not run with land!! so remote grantees cannot sue on them!!!!

Answer 32

Warrants against all defects in title (BUT only for grantor themselves) All of the same promises/covenants as general warranty deed, but only on behalf of myself! No responsibility for any transgressions of my predecessors of interest Statutory Special Warranty Deed o Grantor has not conveyed this parcel to anyone but this grantee o Estate is free encumbrances made by grantor

Answer 33

First one to record wins! "Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser whose conveyance is first recorded."

Answer 34

Last BFP to take (enter the fact pattern) wins! "Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded."

Answer 35

BFP and records before the other! = Now to win, (1) B must be a BFP and (2) win the race to record! "Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded."

Answer 36

To be a BFP, a grantee must: 1. Purchaser (did not take by gift, will, inheritance) 2. Pay valuable consideration 3. Take without notice of prior conveyance - **Donees, heirs, and devisees themselves are not purchasers and thus cannot be BFPs

Answer 37

Literal knowledge

Answer 38

Charged with what inspection of the land/property would have revealed... whether you did the inspection or not, you will be on inquiry notice! If a recorded instrument makes reference to an unrecorded transaction, grantee is on inquiry notice of whatever a reasonable follow-up would have revealed.

Answer 39

On notice if Deed was properly recorded within the chain of title

Answer 40

Sequence of recorded document capable of giving record notice to subsequent takers Chain of title is established through a title search - grantor/grantee index

Answer 41

Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against This protects the BFP interest when they try to transfer to donee's etc... **Applies even if the transferee had actual knowledge of the prior interest

Answer 42

Recorded deed that is connected to the chain of title It is INCAPABLE of giving constructive notice. Rule of Wild Deed -> if a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed and is incapable of giving record notice of its existence.

Answer 43

- Grantor purports to convey to grantee realty they do not then own - Grantor later acquires title to the property - Title automatically vests in grantee - Grantor is estopped from denying validity of pre-acquisition conveyance - But watch out for BFP: Early recording is outside chain of title One who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance, if he subsequently acquires the title that he had previously purported to transfer.

Answer 44

The Mortgagor is the borrower! The Mortgagee is the lender!!!

Answer 45

An extension of value by a lender who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire

Answer 46

Loan is not used to purchase the property that is being used as collateral Ex. Dave and Melissa pay of their home. They now seek to borrow $30,000 from FCB to pay for Austin's Law School, granting FCB a security interest in their home.

Answer 47

Who’s Personally Liable on Debt: If O (mortgagor) sells Blackacre to B: o B “assumes mortgage”: Both O and B o B takes “subject to mortgage”: Only O, but if recorded, Blackacre can be foreclosed

Answer 48

1. Expenses of the sale, including attorneys' fees, and court costs 2. Foreclosing party's -> The principal and accrued interest on the loan 3. Any junior lienors in the order of their priority; and then 4. The mortgagor

Answer 49

Junior interests terminated (paid in descending order from sale proceeds) Necessary Parties -> All junior lienholders + debtor! o A junior mortgagee must be named as a party to a senior mortgagee's foreclosure action because it has the right to pay off the senior mortgage to avoid being wiped out by foreclosure o Failure to include a necessary party results in the preservation of that party's interest despite foreclosure and sale - This means their mortgage will remain on the land!!  Making the next buyer of the property liable for that mortgage/debt (whatever it may be) **Senior interests unaffected (buyer takes subject to them!)**

Answer 50

Creditors must record First in time, first-in-right - recording first gives you priority!

Answer 51

The right of a mortgagor to recover the land by paying the amount overdue on the mortgage, plus interest, at any time before the foreclosure **Sale cut off by foreclosure sale**

Answer 52

Right of a mortgagor to recover the land after the foreclosure sale has occurred, usually by paying the foreclosure sale price

Answer 53

Variance grants a landowner permission to depart from zoning restriction Show (1) undue hardship + (2) no diminution to neighboring property values

Answer 54

Land ranked and categorized to create hierarchy of uses. Under this, land that is zoned for a particular use may be used for the stated purpose and for any higher use! Ex. Zoning Hierarchy 1. Single Family Home 2. Two-family home 3. Apartment building 4. Strip mall 5. Factory Someone who owns the apartment building, can build a Single Family home on that property. But someone who owns a two-family home, cannot build a factory on that very same property!

Answer 55

Land may be used only for the purpose for which it is zoned!

Answer 56

Water belongs to those who own land bordering watercourse. Riparian share right of reasonable use!

Answer 57

Water belongs to state... Right to divert/use can be acquired through actual use

Answer 58

Owner can take any protective measures to get rid of surface water/combat is flows