Property Flashcards
2 ways in which contingent remainders are created
- In an unascertained person OR
- Subject to a condition precedent (other than the natural termination of preceding estates)
Easement by prescription
Easement acquired by actual use that is open and notorious, adverse, and continuous and uninterrupted for the statutory period
Exclusive use is NOT required
Easement by implication
Not expressly agreed upon but May be inferred by a court from existing use when:
1. The use existed before the tract was split into two or more parts
2. There is apparent and continuous use on the servient land
3. The parties intend that the use continue
4. The implied easement is reasonably necessary for the use of the land
- the owner of an easement has the duty to maintain the easement
How to sever joint tenancy with right of survivorship
A joint tenant can destroy the right of survivorship by severing the joint tenancy; it severed, the joint tenancy becomes a tenancy in common. A joint tenant may sell or transfer her interest in the joint tenancy during her lifetime without the knowledge or consent of the other joint tenant, severing the joint tenancy
Race-notice jx
A jurisdiction whose rule allows a subsequent bona-fide purchaser to prevail over an earlier purchaser if, and only if, the subsequent purchaser did not know of the earlier transfer and the subsequent purchaser’s deed was recorded before the first purchaser’s deed
Race jx
A jurisdiction whose rule determines which party prevails in a twice transferred property case strictly on the basis of whose deed is recorded first.
Notice jx
A jurisdiction whose rule allows a subsequent bona-fide purchaser to prevail over an earlier purchaser if the earlier purchaser’s deed was not recorded and the subsequent purchaser did not know of the earlier transfer.
Recording acts
State laws that determine which party prevails when the same property is transferred to multiple people.
BFP for value
A buyer who pays fair consideration for property without any knowledge or reason to have knowledge that the seller previously transferred the property to a different person.
Covenant creation requirements
Must be in writing
For the burden of a covenant to run with the land, all following elements must be satisfied:
1. In writing
2. The intent of the OG parties
3. Touch and concern the land
4. Horizontal and vertical privity
5. Notice
SOF exceptions to oral Ks for Land
Must be in writing but courts will recognize an oral contract if there has been part performance by the buyer.
Part performance requires TWO of the following three:
1 buyer takes possession
2 buyer pays all or part of the purchase price
3 buyer makes substantial improvements to the land
Fee simple determinable
Fee simple that automatically comes to an end when a stated event occurs or fails to occur and then it automatically reverts to the grantor
Equitable subrogation
One who pays off the mortgage obligation of another is treated as the beneficial owner of that OG obligation — the mortgagee who pays off the first mortgage has the right to substituted into the position of the earlier mortgagee and therefore is afforded priority to subsequent liens and creditors to the extent it satisfied the earlier debt
Joint tenancy —> tenancy in common
Time
Title
Interest
Possession
= severing any of these turns a joint tenancy into a tenancy in common
Doctrine of dedication
Owner of land voluntarily donates property to public use — and the donation is accepted — ownership is thereby transferred to the governing body
Life tenant duty to future interest holders
Life tenant has a duty not to harm future interest holders. Cannot consume or exploit the resources on the land UNLESS:
1 prior use
2 reasonable repairs and maintenance
3 expressly authorized by grantor
4 normal use of the land
Ouster
Ouster is the wrongful exclusion of a co tenant — required for a co tenant to obtain title through adverse possession
The law is that: “Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it.”
Title theory of mortgages
Joint tenants own equal, undivided shares with a right of survivorship. Any joint tenant can sever a joint tenancy, which creates a tenancy in common and destroys the right of survivorship. Under the title theory of mortgages, one joint tenant’s execution of a mortgage severs the joint tenancy. This is because the title theory of mortgages treats title as passing from a mortgagor to the mortgagee, which severs the unity of title. The result is that joint tenants become tenants in common, with the mortgagee the equitable owner of the undivided portion legally belonging to the mortgagor.
Can an adverse possessor convey marketable title to a subsequent grantee?
No.
profit a prendre (aka “a profit”)
profit a prendre (aka “a profit”) is a right to remove soil or a product of soil from another’s land. The government may take private property for public use if it provides just
compensation (Federal = Fifth Amendment;
State = Fourteenth Amendment). This is known
as Eminent Domain, aka The Takings Clause. A taking may be either possessory or regulatory.
A possessory taking (condemnation) is always a taking, whether total or partial. If there is a taking for public use, just compensation at the time of the taking must be paid to the owner of the property. Just compensation is the fair market value measured in terms of loss to owner. Gain to the government is irrelevant.
