Property Flashcards
Fair Housing Act
Prohibits discrimination in sale, rental, and financing of dwellings
1. Refusing to rent, sell, or finance a dwelling
2. Requiring different rents
3. Falsely denying that a unit is available
4. Providing different services to facilities
5. Stating a discriminatory preference in an advertisement
Also mandates reasonable accommodations for disabled people
What traits are protected by the Fair Housing Act?
- Race
- Color
- Religion
- National origin
- Sex
- Disability
- Familial status
Which residences are not covered by the Fair Housing Act?
- Single-family home sold or rented without a broker
- Owner-occupied buildings with four or fewer units
- Religious organizations and private clubs
How does causation work in the Fair Housing Act?
Covers disparate treatment and disparate impact cases, but the prohibited behavior must be linked to the protected trait
Example
A advertises a rental unit. Two applicants apply - one black and one white. A rents to the white applicant. Does this violate the Fair Housing Act?
No, because no evidence of causation.
A advertises a rental unit. The advertisement states the unit is a “perfect bachelor pad.” Does this violate the Fair Housing Act?
Yes, because states a preference based on sex and familial status.
What are the types of leasing tenancies?
- Tenancy for years
- Period tenancy
- Tenancy at will
- Tenancy at sufferance
What is a tenancy for years?
Tenancy measured by a fixed and ascertainable period, e.g. A leases land to B for three months
How is a tenancy for years created?
- Created by agreement between landlord and tenant which shows an intent to create this type of leasehold
- If the term is longer than one year, agreement must be in writing
How is a tenancy for years terminated?
- Ends automatically when the term finishes
- Tenant surrenders the lease
- Tenant or landlord materially breaches the lease
Does not terminate when landlord or tenant dies
What is a periodic tenancy?
Repetitive, ongoing tenancy, e.g. month-to-month
Default tenancy
How is a periodic tenancy created?
Parties intended to create a periodic tenancy, which may be express (signed lease) or implied (payment of rent)
How is a periodic tenancy terminated?
- Renews automatically until terminating party gives notice
- Terminating party must give notice before the start of what will be the last term
Does not terminate when landlord or tenant dies
What is a tenancy at will?
Tenancy that may be terminated by landlord or tenant at any time, for any reason
How is a tenancy at will created?
Parties intended to create a tenancy at will, which may be express (signed lease) or implied (payment of rent)
How is a tenancy at will terminated?
May be terminated by either party without notice:
* If agreement only gives landlord right to terminate at will, tenant also given that right by implication
* If agreement only gives tenant right to terminate at will, landlord not given that right
Terminates when either the landlord or tenant dies
What is a tenancy at sufferance?
Tenancy created when a tenant holds over after the lease ends
How is a tenancy at sufferance created?
Unilateral actions of the tenant rather than agreement between landlord and tenant
* Landlord may continue the relationship with the tenant by accepting rent, which is the same amount owed under the old lease unless the landlord informed the tenant of an increase before the lease expired
What does the tenant owe the landlord in a tenancy at sufferance?
Reasonable value of daily use and reasonably foreseeable special damages
How is a tenancy at sufferance terminated?
- Tenant voluntarily leaves
- Landlord evicts the tenant
- Landlord re-rents to the tenant
Example
A leases land to B on a month-to-month basis. A gives notice of termination on February 15. When is the termination effective?
March 31
What is the implied covenant of quiet enjoyment?
Tenant may withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for intended purpose and the tenant is constructively convicted
Applies to commercial and residential leases
What is constructive eviction?
Tenant is forced to abandon the premises
What are the elements of constructive eviction?
- Premises were unusable for intended purposes,
- Tenant notified landlord of the problem,
- Landlord did not correct the problem, and
- Tenant vacates the premises after a reasonable time.
What is the implied warranty of habitability?
Landlord has a duty to maintain the property so it is suitable for residential use, particularly concerning conditions that affect the tenant’s health and safety
* Cannot be waived
* Only applied to residential leases
What are the remedies for breach of implied warranty of habitability?
- Refuse to pay rent
- Remedy defect and offset costs against rent
- Defend against eviction
What must a tenant do to withhold rent as a remedy for breach of implied warranty of habitability?
- Must notify the landlord of the problem and give the landlord a reasonable opportunity to correct it
- Tenant is not required to vacate the premises
Tenant’s duty to pay rent: how does it arise and when is it suspended?
Arises from contractual relationship between landlord and tenant
Duty may be suspended if:
1. Premises are destroyed, so long as the tenant did not cause the damage
2. Landlord completely or partially evicts the tenant
3. Landlord materially breaches the lease, especially breaches of ICQE and IWH
Tenant’s duty to avoid waste
- Duty not to commit affirmative or permissive waste
- Tenant may commit ameliorative waste, but landlords usually require permission
Who is presumed to be responsible for repairs in a lease?
Landlord for residential leases; tenant for commercial leases
Landlord’s duty to mitigate damages
- If tenant abandons the property or is evicted, landlord has a duty to make reasonable efforts to re-rent the property
- Must treat the leasehold as vacant stock, meaning they treat the property like any other property they want to rent out
- Not obligated to accept an unacceptable replacement tenant
- Tenant is not obligated to continue paying rent if landlord fails to do so
- Landlord is entitled to the difference between original rent and replacement rent
Landlord’s duty to deliver possession
- Majority rule: landlord must deliver actual (physical) possession of the property
- Minority rule: landlord must only deliver legal possession of the property
Landlord’s duty for conditions of leased premises
- Responsible for common areas and nuisance-like behavior of other tenants
- Cannot retaliate by evicting a tenant who complains about conditions
- Not responsible for off-premises actions of third parties beyond landlord’s control
Landlord’s duty of care to invitees, licensees, and foreseeable trespassers
At common law, responsible for:
* Latent defects the tenant was not warned about
* Faulty repairs completed by the landlord
* Negligence resulting in injuries in common areas
Modern trend: general duty of reasonable care
Tenant owes a duty of care for everything else
Example
A rents a property from B. Due to poor construction, the property floods when it rains. A notified B after the property flooded for the first time. A moves out the next day and refuses to pay rent. Is A liable for rent?
Although B violated the ICQE and A notified B, A is still liable to B for rent because they vacated prematurely.
Example
The lock on an apartment building was broken, resulting in break-ins which caused damage. A tenant is injured by debris in the hallway. Has there been breach by the landlord?
Yes, landlord breached his duty to maintain common areas
Example
When A moved in, the landlord warned her there was a loose beam in the floor. A later tripped on the beam. Is the landlord liable?
No, because the defect was not latent because the tenant had been informed.
What is an assignment?
Complete transfer of the tenant’s remaining term
From whom may a landlord collect rent after an assignment?
Original tenant (privity of contract) and assignee (privity of estate)
What is a sublease?
Transfer of lease for less than the total duration of the lease
From whom may a landlord collect rent after a sublease?
Original tenant only (privity of contract and estate)
Sublessee has rent obligations to the original tenant
If a lease is silent, may a tenant assign or sublet?
Yes, the may do so freely
If a lease requires the landlord’s permission to assign or sublet but is silent on the applicable standard, when may the landlord deny permission?
- Majority rule: may only deny permission to transfer for a commercially reasonable reason
- Minority rule: may deny permission at their discretion
Does a landlord need a tenant’s permission to transfer their interest to a new landlord?
No
* New landlord is bound by the terms of the existing lease
* Original landlord remains liable to the tenant for all covenants in the lease
Example
A landlord discovered a significant defect with the leased property. Without informing anyone of the defect, the landlord sold his interest to a new owner. The roof later collapsed, causing damage. Is the original landlord liable?
Yes, because they knew of the defect but did not inform the tenant
What are the stages of a land sale?
- Contract stage: parties negotiate terms
- Deed stage: parties transfer property
What is liability based on at the different stages of a land sale?
- Contract stage: liability based on contract provisions
- Deed stage: liability based on deed warranties
Doctrine of Merger
- Once a deed has been executed, only the deed survives
- Contract is no longer valid and the parties lose all causes of action based on the contract (contract is “merged” with deed)
What does the Statute of Frauds require for all land sales?
Agreement must be:
* In writing,
* Signed by the party being sued, and
* Include all essential terms: buyer and seller, description of property, price and payment information
What are the exceptions to the Statute of Frauds in land sales?
Partial performance of contract
* Generally look for at least two acts of performance, including:
* Payment of all or part of purchase price, possession by the purchaser, improvements by the purchaser
Detrimental Reliance
* Estoppel doctrine that applies when a party reasonably relied on the contract and would suffer hardship without enforcement
Implied Covenant of Marketable Title
Guarantee included in every land sale that the title is free from an unreasonable risk of litigation
What defects might render a title unmarketable?
- Title acquired by adverse possession that has not been quieted
- Private encumbrances, e.g. mortgage, enforceable covenant, enforceable easement
- Zoning ordinance violation
What is a buyer’s remedy for breach of implied covenant of marketable title?
May rescind the contract
Delays in land sales
- Unless the contract states or the parties give notice, time is not of the essence
- Failure to close on the set day is a breach of contract, but not grounds for rescission
Specific performance is still available as a remedy
What is the implied warranty of fitness/suitability for land sales?
Builders are liable for defects in new constructions
What are the rules for implied warranty of fitness/suitability for land sales?
- Majority: both initial buyer and subsequent purchasers may recover damages
- Minority: only original buyer may recover damages
Seller’s duty to disclose defects in land sales
Seller has a duty to disclose all known physical and/or material defects to the buyer
* Generally concerned with latent or hidden defects
* Material defect must substantially affect the value or desirability of the home, or the health and safety of its occupants
General ‘as is’ disclaimers do not constitute waiver
What are the rules for equitable conversion?
Majority: buyer holds equitable title in period between the execution of the contract and the closing/deed delivery; seller holds legal title
* Buyer responsible for damage to the property that occurs in that period
* Seller has a right to possess the property in that period
Minority: seller bears the risk of loss until closing/deed delivery
Example
A orally agrees to sell land to B. B sends A a check for the price. B moves into the home, hires a contractor, and buys new furniture. A later returns the check and demands that B leave. Is the contract enforceable?
Yes, because although it was not written per the Statute of Frauds, it falls under the partial performance and detrimental reliance exceptions
Example
A agrees to sell land to B. The title has two covenants: (1) land can only be sold to white people, and (2) no pets are allowed. Can B rescind the contract?
Yes, under implied warranty of marketable title
(1): No, covenant violates FHA and US Constitution and is therefore unenforceable
(2): Yes, enforceable covenant
Example
A agrees to sell land to B. Two days before they are set to close, a tornado completely destroys the property. Who bears the risk of loss?
- Majority jurisdiction: B bears risk of loss as equitable title holder
- Minority jurisdiction: A bears risk of loss as the seller
What are the exceptions to the Rule Against Perpetuities?
- Gifts from one charity to another charity
- Option held by a current tenant to purchase a fee interest in a leasehold property
- Option in a commercial transaction
How do you apply the Rule Against Perpetuities?
- Determine when the interests were created
- Determine if the interest is subject to RAP
- Determine the relevant and validating lives
When are inter vivos and devise interests created for the Rule Against Perpetuities?
- Inter vivos: time of transfer
- Devise: testator’s death
Which interests are subject to the Rule Against Perpetuities?
- Contingent remainders
- Executory interests
- Class gifts subject to open
- Vested remainder subject to open
What are the relevant and validating lives in the Rule Against Perpetuities?
- Relevant life: person who affects vesting
- Validating life: person who determines whether the interests vest in the RAP period
Grant is valid without a validating life, and must have been alive when the interests were created
What is the Rule Against Perpetuities?
All future interests must vest no later than 21 years after the measuring life dies
How is the Rule Against Perpetuities applied to class gifts?
If a gift is void to any class member under RAP, it is void to all class members
Exceptions:
* Transfers of a specific dollar amount to each class member
* Transfers to a subclass that vests at a specific time
What is waste and the doctrine of waste?
- Waste: conduct that impairs the value of land
- Doctrine of waste: owner of a reversion or remainder may enjoin or recover damages for waste caused by a life tenant
Also applies to landlord/tenant, co-tenant in possession/co-tenant out of possession, mortgagor/mortgagee
What are the different types of waste?
- Affirmative waste: waste caused by voluntary conduct which reduces value of land
- Permissive waste: waste caused by neglect which reduces value of land
- Ameliorative waste: waste caused by changing the use of the property which increases value of land
What is a fee simple determinable?
Present possession which ends after a specified period
How is a fee simple determinable created and terminated?
- Created by specific durational language, e.g. “so long as”, “while”, “during”, “until”
- Terminates automatically after specified period ends
What interest does a grantor retain in a fee simple determinable?
Possibility of reverter, which vests automatically at the end of the specified period
What is the choice of law in property disputes?
Controlling law is based on where the property is located
Exceptions:
1. Instrument designates an applicable jurisdiction
2. Cases involving marriage (parties’ domicile may govern)
3. Mortgage cases where repayment is made in a different state
What is a fee simple absolute?
Present, infinite possession of property
How is a fee simple absolute created and terminated?
- Created by language like: “and to his heirs”, “O to A”, “O to A and his heirs”, “O to A forever”
- May be transferred by gift, sale, devise, or intestate succession
What interest does the grantor retain in a fee simple absolute
None
What is a fee simple subject to a condition subsequent?
Present possession which the grantor may terminate if a condition is met
How is a fee simple subject to a condition subsequent created and terminated?
- Created by specific conditional language, e.g. “But if… O may repossess”, “provided that… if not, O may reenter and retake”
- Grantor may, but does not have to, terminate after a condition is met; grantor must take action
What interest does the grantor retain in a fee simple subject to a condition subsequent?
Right of reentry
Does not vest automatically, grantor must act
What is a fee simple subject to an executory interest?
Present possession which ends and vests in a third party when an event occurs
How is a fee simple subject to an executory interest created and terminated?
- Created by language like: “but if… to B”, “provided that… if not, to B”, “on the condition that… if not, to B”
- Terminates automatically after a condition is met
What interest does the third party retain in a fee simple subject to an executory interest?
Executory interest
* If divest grantor, “springing”
* If divests grantee, “shifting”
What is a life estate?
Present estate which terminates on the death of the measuring life
How is a life estate created and terminated?
- Created by language “for life”
- Cannot be transferred by will or intestate succession
- Automatically ends when measuring life ends
What interests are retained in a life estate?
If goes back to grantor on termination, grantor holds a reversion
* After reversion, grantor holds fee simple absolute
* Per doctrine of worthier title, if conveyance states that the property will go to the grantor’s heirs on termination, grantor still retains a reversion
If goes to a third party on termination, third party holds a remainder
* After remainder, third party holds a fee simple
* Per Shelley’s case, grantee’s heirs cannot hold a remainder
What is a vested remainder?
Interest that is given to an identifiable person and there is no condition which must be satisfied
Grantor retains no interest
What is a vested remainder subject to open?
Interest that is given as a gift to a class in which the full membership is known and at least one person has vested
What is the rule of convenience?
Doctrine regarding a vested remainder subject to open to avoid RAP which allows a class to close when any member becomes entitled to immediate possession
What is a contingent remainder?
Remainders that do not qualify as vested remainders or vested remainders subject to open
Grantor holds a reversion
Example
O conveys $1000 to “any students admitted to the bar.” Does this violate RAP?
No, RAP not violated
* Interests created at time of conveyance
* Students’ springing executory interest subject to RAP
* Validating life is last student to die
We will know if the interest is vested at the death of the last student
Example
O conveys land to A “for life, then to A’s first child to reach age 22.” Does this violate RAP?
Yes, violated RAP
* Interests created at time of conveyance
* A’s first child’s contingent remainder subject to RAP
* Validating life is A
We will only now if the interest vests 22 years after A’s death
Example
O conveys land to A “but if the land is farmed during A’s life, to B.” Does this violate RAP?
No, RAP not violated
* Interests created at time of conveyance
* B’s shifting executory interest is subject to RAP
* Validating life is A
We will know whether the interest vests when A dies
Example
O conveys land to A “so long as the property is used as a farm, then to B.” Does this violate RAP?
Yes, violates RAP
* Interests created at time of conveyance
* B’s shifting executory interest subject to RAP
* Validating lives are A and B
It is possible that the land will still be used as a farm more than 21 years after A and B’s deaths
Example
O transfers fee simple absolute to A. A dies intestate with B as only heir. What interests are created?
- O has no interest
- B has fee simple absolute
Example
O conveys land to A “with hope that when she dies she will pass it to B.” What interests are created?
- O has no interest
- A has fee simple absolute
- B has no interest
Example
O conveys land to A “so long as the land is used as a farm.” What interests are created?
- O has possibility of reverter
- A has fee simple determinable
Example
O conveys land to A, “but if the land is not farmed, O may re-enter and re-take the land.” What interests are created?
- O has right of re-entry
- A has fee simple subject to a condition subsequent
Example
O conveys land to A “and her heirs, but if the land is farmed, then to B and his heirs.” What interests are created?
- O has no interest
- A has fee simple subject to an executory interest
- B has shifting executory interest
Example
O conveys land to A “after admission to the bar.” What interests are created?
- O has a fee simple subject to executory interest
- A has springing executory interest
Example
O conveys land to A “for life, then to B if B survives A.” What interests are created?
- O has reversion
- A has life estate
- B has contingent remainder
Example
O conveys land to A “for life, then to B one year after A’s death.” What interests are created?
- O has one-year reversion following A’s death
- A has life estate
- B has springing executory interest
Example
O conveys land to A “for life, then to my heirs.” What interests are created?
- O has reversion under doctrine of worthier title
- A has life estate
Example
O conveys land to A “for life, then to B’s children.” B has one child. When does the class close under the rule of convenience?
When A dies
Example
O conveys land to A “for life, then to B.”
- O has no interest
- A has life estate
- B has vested remainder
Example
O conveys land to A “for life.” A transfers her interest for B. What interests are created?
- O has reversion
- A has life estate
- B’s interest terminates on A’s death
Example
O conveys land to A “for life, then to A’s firstborn child.” A has no children. What interests are created?
- O has reversion
- A has life estate
- First born child has contingent remainder
Example
O conveys land to A “for life, then to A’s children who reach 21.” A has three children: B is over 21, and C and D are under 21. What interests are created?
- O has reversion
- A has life estate
- B has vested remainder subject to open
- If C or D reach 21, they will partially divest B
Example
O conveys land to A to “for B’s life.” What interests are created?
- O has reversion
- A has life estate that terminates on B’s death
- B has no interest
Example
O conveys land to A “for life.” What interests are created?
- O has reversion
- A has a life estate
What are the types of concurrent estates?
- Tenancy in common
- Joint tenancy
- Tenancy by the entirety
What is a tenancy in common?
- Any conveyance to more than one person is presumptively a tenancy in common
- No right of survivorship
- Co-tenant may freely transfer the property, including by will and intestate succession
- Co-tenants have separate but undivided interests in the property
Have percentage interest in an estate (may be equal or unequal shares)
Have unity of possession, meaning they can use and possess the entire property
What is a joint tenancy?
- Tenants have a right of survivorship
- Creation: grantor must make a clear expression of intent and use survivorship language, e.g. “as joint tenants with a right of survivorship”
- Must possess the four unities
What are the four unities?
Possession: must have equal right to possess the whole property
Interest: must have equal shares
Time: must receive interests at the same time
Title: must receive interests in the same instrument
When is a joint tenancy severed?
- If four unities are not present, the joint tenancy is terminated and becomes a tenancy in common
- Inter vivos transfer severs the joint tenancy with respect to the transferring joint tenant
What is tenancy by the entirety?
- Joint tenancy between married spouses
- Requirements: must possess PITT and must be married to each other
- Creation: “as tenants by the entirety, with a right of survivorship”
- Right of survivorship
- Spouses are seen as one person, together having 100% interest
- Spouse cannot unilaterally convey, mortgage, or encumber
What is ouster?
- Co-tenant in possession denies another co-tenant access to the property
- Ousted co-tenant may seek an injunction granting access or recover damages for value of loss
How is rent split between co-tenants?
Third party rent is divided in proportion to the co-tenants’ shares
Co-tenant in possession is not required to pay rent to co-tenants out of possession
How are expenses split between co-tenants?
- Operating expenses (e.g. taxes or mortgage) are divided in proportion to co-tenants’ shares; co-tenant may collect contribution for payments in excess of her share
- No right to reimbursement from co-tenants for repairs or for improvements, although the repairing co-tenant can get credit in a partition action
What is partition?
Court divides the property into distinct proportions:
* Preference for partition in kind (physical division)
* May order a partition by sale if physical division is impractical or unfair
Unilateral right available to tenants in common and joint tenants, but not tenants by the entirety
Agreement between co-tenants not to partition is enforceable if the agreement is clear and the time limit is reasonable
Example
O conveys land “in equal shares to A, B and C.” A conveys her interest to D. B devises his interest to E. What tenancy does this create?
Tenancy in common
C, D, and E each have 1/3 interests
Example
O conveys land “to A and B as joint tenants with a right of survivorship.” A dies and her will leaves everything to C. Who owns the land?
B only
Example
O devises land “to A and B as joint tenants with a right of survivorship.” The will provides that A will have a ⅓ interest and B will have a ⅔ interest. What tenancy does this create?
Tenancy in common
Both A and B have possession, and received their interests at the same time by the same instrument. However, not joint tenancy because did not receive the equal interests.
Example
A, B and C are joint tenants. A transfers her share to D. What tenancy does this create?
- A receives a ⅓ share as a tenant in common
- B and C retain ⅓ shares as joint tenants
Example
A and B are tenants in common. A has a 10% interest and B has a 90% interest. They rent the land to C for $1000. How much rent is each entitled to?
- A is entitled to $100
- B is entitled to $900
What is the doctrine of adverse possession?
Person in unlawful possession may acquire good title to property
How does title transfer work with adverse possession?
- Until they acquire good title, the person is a trespasser
- Receive new title dating back to when the person entered the property; no title transfer from former owner
Can government property be adversely possessed?
No
What other property does adverse possession apply to?
- Subsurface rights, unless already claimed by a third party
- Easements
What are the elements of adverse possession?
- Continuous for statutory period
- Open and notorious
- Hostile
- Exclusive
Explain the “continuous” element of adverse possession.
Seasonal or infrequent use may suffice if consistent with type of property
May tack on prior adverse possessor’s time on the property
* Current adverse possessor must be in privity with the prior adverse possessor (e.g. prior somehow ‘conveys’ the property to current)
Statute of limitations does not run if the true owner has a disability at the time adverse possession began
* Example: infancy, insanity, imprisonment
* Disability must exist when the trespasser entered the property
Explain the “open and notorious” element of adverse possession.
- Trespasser’s use must put a reasonable true owner on notice of the adverse use
- Use cannot be hidden
- Trespasser must use the property as if they were the true owner
Explain the “open and notorious” element of adverse possession.
Possession must be adverse to owner’s interest
Majority: adverse possessor’s state of mind is irrelevant
Minority: adverse possessor’s state of mind is relevant
* Good faith jurisdiction: hostile if the trespasser believes in good faith that they are the rightful owner (adverse possession based on mistake)
* Bad faith jurisdiction: hostile if the trespasser knows the land is not theirs (adverse possession based on aggressive trespass)
Explain the “exclusive” element of adverse possession.
- Cannot share possession with true owner
- Can acquire title as tenants in common if two people adversely possess the property together
What is constructive adverse possession?
- Applies to adverse possessor who enters under the color of deed but only occupies a portion of property described in the fraudulent deed
- Adverse possessor will gain actual possession of the occupied land and constructive possession of the remaining land in the deed
Example
A lives on B’s land for five years. A ‘sells’ his interest to C, who then lives on B’s land for three years. The statute of limitations is seven years. Has C satisfied the “continuous” element of adverse possession?
Yes, by tacking on A’s possession
Example
A begins living on B’s land without their knowledge. A only leaves the house at night and never uses lights. Has A satisfied the “open and notorious” element of adverse possession?
No, because A acted to avoid detection
Example
A sells land to B. B is unaware that A did not own rights to the land. B takes possession of the land and begins farming it. Does this satisfy the “hostile” element in adverse possession in majority jurisdictions, good faith jurisdictions, and bad faith jurisdictions?
- Majority jurisdiction: yes, because adverse to true owner’s interest
- Good faith jurisdiction: yes, because B mistakenly believed he had good title
- Bad faith jurisdiction: no, because use was based on a mistake
Example
A receives a fraudulent deed for 10 acres of land. A only occupies 1 acre. What possession does A obtain by adverse possession?
Actual possession of 1 acre and constructive possession of remaining 9 acres
Example
A regularly crosses over B’s land to reach the main road. She has done so for 10 years in a jurisdiction with an adverse possession SoL of 10 years. What has A obtained by adverse possession?
Easement
What is a deed?
Legal instrument that transfers ownership of real property
What are the contents of a valid deed?
- States identity of parties
- Signed by grantor
- Include words that evidence a present intent to transfer (granting clause)
- Have sufficient description of the property: need not be legal description and may be based on monuments/physical attributes, extrinic evidence admissible to clarify
Explain the delivery and acceptance of a deed.
Valid deeds must be delivered and accepted
Delivery:
* Only considered delivered if the grantor had the present intent to transfer the property
* Physical delivery is not required
* Delivery to an agent with instructions to deliver the deed to the grantee is valid
Acceptance:
* Presumed so long as the transfer is for value
How is a deed executed?
Effective execution requires the grantor’s signature
* Grantee does not need to sign
* Deed does not need to be witnessed or notarized
* Forged signature voids the deed, even if buyer is a bona fide purchaser
May appoint an agent to execute the deed, so long as the agency relationship was made in writing
What role can brokers play in a land sale transaction?
Brokers and real estate agents may be involved so long as do not practice law
* May prepare a land sale contract, but may not draft legal documents
What is a general warranty deed?
Warrants against all title defects, regardless of who caused it
What are the implied covenants of a general warranty deed?
Present covenants:
1. Covenant of seisin: deed describes the land
2. Covenant of right to convey: grantor has the right to convey the property
3. Covenant against encumbrances: no undisclosed encumbrances that could limit the land’s value
Future covenants:
1. Covenant of quiet enjoyment: grantee’s possession will not be disturbed by a third party claim
2. Covenant of warranty: grantor will defend against future title claims by a third party
3. Covenant of further assurances: grantor will fix future title problems
What is a special warranty deed?
- Warrants against title defects caused by the grantor
- Same covenants are general warranty, but they are only applicable to defects caused by the grantor
What is a quitclaim deed?
No title warranties
Often used in tax sales and intra-family disputes
For deeds, when does breach of present and future covenants occur?
- Present covenants: time of conveyance
- Future covenants: after conveyance
For deeds, what is the remedy for breach of an implied covenant?
Damages
Example
A asks his attorney to transfer a deed in “two months’ time, unless I change my mind.” Has the deed been delivered?
No, because A can revoke delivery
Example
A conveys land to B. A tries to deliver the deed to B, but learns she is out of the country. A calls B, stating that B is the new owner. Has the deed been delivered?
Yes, because call manifests intent to transfer
Example
A gives a deed to an agent with clear instructions to deliver it to B. Has the deed been properly executed?
Yes
Example
A delivers a deed to B. The next day, B tells A she does not want it. Has the deed been delivered, and how can B return the deed to A?
Yes, B has accepted. B will need to execute a new deed back to A.
What does it mean to record a deed?
Public registration of a deed
Does not affect the validity of a deed
What is the common law rule for recording a deed?
“First in time, first in right”
Always applies to gifts
What are the types of recording statutes?
- Race statutes
- Notice statutes
- Race-notice statutes
What is the rule for a race statute?
Rule: first to record wins, even if the subsequent purchaser had notice of a prior, unrecorded conveyance
Key language: “first recorded” or “first to record”
What is the rule for a notice statute?
Rule: subsequent purchaser wins if they acquire without notice of a prior unrecorded conveyance
Key language: “in good faith” or “without notice
What is the rule for a race-notice statute?
- Rule: subsequent purchaser wins if acquired without notice of a prior unrecorded conveyance and records first
- Key language: “first duly recorded” or “first recorded” with “in good faith” or “without notice”
What is the shelter rule?
Person who obtains land from a bona fide purchaser protected by the recording act has the same rights as the grantor
What is estoppel by deed?
If a grantor conveys land he does not own, he is estopped from repossessing the land on the grounds that he did not have title when he made the original conveyance
Example
“No conveyance or mortgage of real property shall be good against subsequent purchases for value and without notice unless the same be first recorded according to law.” What type of recording statute is this?
Race-notice statute
Example
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value unless the same be first recorded according to law.” What type of recording statute is this?
Race statute
Example
“No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.” What type of recording statute is this?
Notice statute
Example
A conveys land to B. B does not record. A later conveys the same land to C. C is not aware of B’s deed. C records, then A records. Who wins under a race statute, notice statute, and race-notice statute?
- Race-statute state: C, because recorded first
- Notice-statute state: C, because was unaware of B’s deed
- Race-notice statute state: C, because recorded first and was unaware of B’s deed
Example
A sells land to B. B does not record. A later sells the same land to C. C is not aware of B’s deed. B records, then C records. The state has a race-notice statute. Who wins?
C, because recorded first and was unaware of B’s deed
Example
A sells land to B. B does not record. A later offers to sell the same land to C. C observes A working on the land. C purchases the land and records. Who wins under a race statute, notice statute, and race-notice statute?
- Race statute: C, because recorded first.
- Notice-statute state: B, because C had inquiry notice.
- Race-notice statute state: B, because C is not protected by the statute because he had inquiry notice.
Example
A sells land to B. B does not record. Later A gifts the same land to C. C is not aware of the prior conveyance to B. C does not record, then A records. Who wins?
A, because recorded first and gifts are not covered by recording statutes so common law “first in time” rule applies
Example
A sells land to B. A later sells the same land to C. C is not aware of the prior conveyance to B. C sells the land to D. D is aware of the prior conveyance to B. The state has a notice statute. Who wins?
C, because although C was aware of prior conveyance, B was a bona fide purchaser.
What is an heir, devisee, and escheat?
- Heir: person who takes estate by intestate succession
- Devisee: person who takes estate by will
- Escheat: if decedent dies without a will and heirs, property goes to the state
What is ademption?
- Devise of property that fails because it is not a part of the estate at death
- Intended recipient generally gets nothing
- Ademption by satisfaction: if testator gives the promised gift during their life, beneficiary keeps the gift
What is lapse?
- Intended beneficiary predeceases the testator
- Gift lapses (fails) and becomes part of the residuary estate
What are anti-lapse statutes?
- If the predeceasing beneficiary is a relative of the testator, the predeceasing beneficiary’s beneficiary may take the gift
Example: grandfather leaves land to his son. Son dies before the grandfather. After the grandfather dies, the son’s daughter may take the land.
What is a trustee and a settlor?
- Trustee: person who owns property for the benefit of a beneficiary
- Settlor: person who creates the trust
Which titles do a trustee and a beneficiary have?
- Trustee has legal title
- Beneficiary has equitable title
What are the types of trusts?
- Charitable trust: charitable in nature and designed to benefit the public
- Private trust: designed to satisfy legal purposes for private parties
Example
A executes a date stating that he coveys $100,000 to B for the benefit of C’s education. This creates a trust. Who is the settlor, beneficiary, and trustee?
A: settlor
B: beneficiary with equitable title
C: trustee with legal title.
What is a fixture?
Tangible personal property that is attached to and treated as part of real property
What can fee simple owners, buyers, and trespassers do to fixtures?
- Fee simple owner: free to make improvements to property so long as does not violate regulations
- Buyer: entitled to fixtures unless otherwise contracted
- Trespasser: may remove an improvement or recover value if acted in good faith
What can a life estate/tenant do to fixtures?
- Limited by waste doctrine
- Presumption that can remove fixtures unless doing so would permanently damage property
Example
A believes he is the rightful owner of land. A builds a shed on the land. B, the rightful owner, notices A and demands he leave the property. What is A entitled to?
Value of the shed
What are a seller’s remedies if buyer breaches in a land sale?
- Primary remedy: specific performance of the contract because land is unique
- Damages: difference between contract price and market price
- Recission: sell the land to someone else
What are a buyer’s remedies if seller breaches in a land sale?
- Primary remedy: specific performance of the contract because land is unique
- Damages: difference between contract price and market value on the date of breach
- If the seller acted in good faith, buyer can only recover out-of-pocket expenses
- Recission: cancel contract and seller must return payments
What is a mortgage and how does it work?
- Security device used to secure a payment of debt
- Borrower transfers security interest in exchange for loan
- If the borrower defaults on the loan, the lender can force a foreclosure sale to cover the outstanding debt
What are the components of a mortgage?
- Note: borrower promises to repay the loan
- Mortgage: instrument that provides security for the note
What is a mortgagor and a mortgagee?
- Mortgagor: borrower
- Mortgagee: lender
What are the types of mortgages?
- Purchase money mortgage: loan used to purchase property
- Future advance mortgage (‘second mortgage’): loan used for home equity, construction, business, and commercial loans
What is the difference between a ‘lien’ state and a ‘title’ state?
- Majority “lien state”: mortgage is a lien that does not sever joint tenancy
- Minority “title state”: mortgage is a new interest that severs a joint tenancy
What are the types of equitable mortgages?
- Deed of trust
- Installment land contract
- Absolute deed
- Conditional sale and repurchase
What is a deed of trust?
Operates as a mortgage, but trustee holds title for the lender
What is an installment land contract?
Loan from the property seller, who holds title until the buyer makes the final payment
What are the traditional and modern rules for if a buyer misses a payment in a land installment contract?
Traditional rule: seller keeps paid installments and property
Modern approaches vary:
* Treat like a mortgage, requiring foreclose and giving buyer right of redemption
* Seller retains ownership but requires part restitution of what buyer has paid
What is an absolute deed?
Borrower transfers deed to lender in exchange for loan
What must a borrower prove in an absolute deed?
- If disguised mortgage, borrower must prove that there was an obligation to or at the same time of the transfer by clear and convincing evidence
- Parol evidence is admissible
- Oral evidence not barred by the statute of frauds
What is a conditional sale and repurchase?
- Borrower sells property to lender in exchange for loan
- Lender leases the property back to the borrower
- Borrower has option to repurchase property after loan is paid off
How may a borrower transfer a mortgage?
- By sale, will, or intestate succession
- Transferee may ‘assume’ or be ‘subject to’ the mortgage
What happens if a transferee ‘assumes’ a mortgage?
Transferee is personally liable
Borrower remains personally liable unless:
* Lender releases the borrower, or
* Lender modifies the transferee’s obligation
What happens if a transferee takes ‘subject to’ a mortgage?
- Transferee not personally liable
- Borrower remains personally liable
*If deed silent or ambiguous on liability, assume transferee takes “subject to” *
What are acceleration clauses in mortgages?
Due-on-sale clause:
* Lender demands immediate full payment on transfer of mortgage to third party
Due-on-encumbrance clause:
* Lender demands immediate full payment when the borrower obtains a second mortgage or otherwise encumbers property
How may a lender transfer a mortgage?
- Lender may sell or assign the mortgage freely
- Borrower still obligated to make mortgage payments to new lender
If a lender transfers a mortgage, what happens if they transfer the note only or the mortgage only?
- Note only: mortgage follows the note
- Mortgage only: in some states, note follows the mortgage, in others transfer is void
What is foreclosure?
Forced sale of an asset to pay off a debt
When can a lender take possession of a property in a lien state, title state, and intermediate title state?
- Lien state: borrower is owner and lender cannot take possession prior to foreclosure
- Title state: lender may possess the property at any time
- Intermediate state: lender can possess when the borrower defaults
How can a borrower avoid foreclsoure?
Equity of redemption: borrower may reclaim title and prevent foreclosure by making full payment of debt before foreclosure sale
“Clog”: courts will intervene to avoid terms that make it harder for the borrower to exercise this right
Deed in lieu of foreclosure: borrower conveys the property to the lender in exchange for release of outstanding debt
How is a property foreclosed on?
Lender must give notice to the borrower
Methods:
* Judicial sale: public sale under court supervision
* Power of sale: private sale held by lender
What happens if there is excess or deficiency of funds after foreclsoure?
- If proceeds greater than debt, excess used to satisfy other creditors
- If proceeds less than debt, lender gets deficiency judgment against borrower for remaining debt
What is the rule for priorities after foreclosure?
- Senior interests (interests acquired before the foreclosed interest) survive foreclosure
- Junior interests (interests acquired after the foreclosed interest) extinguished by foreclosure
- Surviving debts satisfied chronologically
What are exceptions to the priorities rule after foreclosure?
- Purchase-money mortgage has priority over mortgages and liens from prior to the borrower’s acquisition of the property
- Properly recorded junior mortgage may take priority over unrecorded senior mortgage
- Senior lender agrees to subordinate to a junior interest
- If senior lender makes mortgage more burdensome, modification is subordinated; if senior lender replaces mortgage, new mortgage retains priority unless change is materially prejudicial to junior lender
- Borrower grants lender rights to property acquired in the future; interest in after-acquired property is junior to purchase-money mortgage
How does foreclosure affect parties’ interests?
- Eliminates borrower’s interest (unless statutory redemption)
- Foreclosure purchaser takes the property subject to senior mortgages but free and clear of junior mortgages (absent statutory redemption)
- Senior interests not affected
- Junior interests destroyed
What is statutory redemption?
- Borrower may redeem after foreclosure
- Nullifies foreclosure and ends foreclosure purchaser’s title and restores borrower’s
Example
A takes out a $100,000 mortgage from Bank 1 to buy a home. Later, she takes out a $25,000 mortgage from Bank 2 to renovate her kitchen. Who has interest in the property?
Bank 1 and Bank 2 have both interests in the home that can be foreclosed on.
Example
A takes out a mortgage from Bank 1 to buy a home. Bank 1 later assigns the note and mortgage to Bank 2. Does A have to make payments, and to whom?
A must make payments to Bank 2
Example
A takes out a mortgage from Bank 1 to buy a home. A defaults by missing a number of payments. Bank 1 begins foreclosure proceedings. How can A prevent this foreclosure under equity of redemption?
Repay the full debt before foreclosure
Example
A takes out a mortgage from Bank 1 to buy a home. As a term of the mortgage, A waives her right to redeem in exchange for consideration. Will courts intervene?
This is clogging, which courts will usually intervene to prevent.
Example
A takes out a $200,000 mortgage from Bank 1 to buy a home. A defaults on the mortgage. The remaining debt is $175,000. The home is foreclosed upon and sold for $100,000. How much will Bank 1 get?
Bank 1 will take $100,000 and get a deficiency judgment against A for remaining $75,000
Example
A takes out a mortgage from Bank 1 to buy a home. A defaults on the mortgage. A has also defaulted on a judgment lien from a car accident. The home is foreclosed upon. Which interests take priority?
Under purchase money exceptino, Bank 1’s mortgage takes priority over lien, even though the mortgage is junior
Example
A takes out a mortgage from Bank 1. Bank 1 did not record the mortgage. A later takes out a mortgage on the same property from Bank 2. Bank 2 has no knowledge of the mortgage from Bank 1. A defaults on both. The home is foreclosed upon. The state has a notice statute. Which interest has priority?
Bank 2’s junior interest has priority over Bank 1’s senior interest because it satisfied the notice statute
Example
A defaults on the mortgage for her home. B purchases the home at a foreclosure sale. The state has statutory redemption. Can A stop foreclosure?
Yes, A can nullify the foreclosure if meets requirements of statute
Define:
1. Easement
2. Servient estate
3. Dominant estate
- Right to use another person’s land
- Land burdened by easement
- Land benefited by easement
What are the different categories of easements?
- Affirmative easement
- Negative easement
- Easement appurtenant
- Easement in gross
What is an affirmative easement?
Right to do something on another person’s property
What is a negative easement?
Right to prevent someone from doing property on that person’s own land
Must be express
What is an easement appurtenant?
Easement tied to use of the dominant land
What is an easement in gross?
Easement that benefits the holder personally
Are easements appurtenant and easements in gross transferable?
Easement appurtenant: yes, goes with land
Easement in gross:
* Traditional rule: not transferable
* Modern rule: transferable if intent for it to be transferable
Express Easement
- May be created by grant or reservation
- Subject to recording statutes
- Subject to statute of frauds so must be in writing
- Courts consider intent in interpreting ambiguous terms
- Use of an easement may change if it is reasonably foreseeable at the time the easement was created
- If use exceeds scope, dominant tenant is trespassing
- Dominant owner is not entitled to use an easement to access property acquired after the easement was created
What are the characteristics of an implied easement?
- Transferable
- Not subject to statute of frauds
- Not subject to recording statutes unless subsequent purchaser had notice of the easement
What are the types of implied easements?
- Easement by necessity
- Easement by prior use/implication
- Easement by prescription
- Easement by estoppel
What are the requirements for an easement by necessity?
- Common ownership: dominant and servient estates were owned in common by one person at some point, and
- Necessity at severance: when estates were severed, one property became virtually useless without easement
Example: no access without crossing another person’s land
When does an easement by necessity terminate?
When no longer necessary
What are the requirements for an easement by prior use/implication?
- Common ownership: estate owned by one owner,
- Original owner used the land as if there were an easement,
- Land was severed,
- Use was continuous and apparent at time of severance, and
- Use is reasonably necessary to the dominant’s estate’s use and enjoyment
What are the requirements for easement by prescription?
- Acquiring easement by adverse possession
- Same elements as adverse possession, except for exclusivity, and applied to use rather than property
What is an easement by estoppel?
- Property owner allows a neighbor to use their land (grants license)
- If reliance is detrimental to the neighbor, property owner is estopped from withdrawing permission
- Continues when the neighbor relies on the property owner’s promise - reliance must be reasonable and in good faith, look for the neighbor investing money by making improvements
What is an easement holder’s duty to maintain?
Easement owner has a duty to maintain the property that is subject to easement
What is a profit and a license?
- Profit: right to enter another person’s land to remove a specific natural resource
- License: revocable permission to use another’s land which does not bind successors
How is an easement terminated?
Part 1
- Easement holder expressly releases it in writing
- Easement merges into title if the easement owner acquires title to the underlying estate
- Servient estate owner relies to their detriment on the easement holder’s statements that they are abandoning the easement
How is an easement terminated?
Part 2
Easement holder does an affirmative act that shows a clear intent to relinquish easement
* Requires more than non-use or statements
* Usually need non-use and an act demonstrating intent to abandon
Easement holder fails to prevent the servient estate owner’s interference for statutory period
* Interference must be continuous, actual, open, and hostile
Example
A has an easement to cross B’s property. What easement does A have and who has which estate?
A has an affirmative easement and easement appurtenant.
A has dominant estate; B has servient estate.
Example
A has an easement to cross B’s property. What easement does A have and who has which estate? What easement does A have and who has which estate?
A has negative easement and an easement appurtenant.
A has dominant estate; B has servient state.
Example
A has an easement to use the pool on B’s land. What easement does A have and who has which estate?
A has a positive easement and an easement in gross.
No dominant estate; B has servient estate.
Example
A conveys his land to B. The deed states that A “reserves the right to cross the land.” What type of easement does A have?
Express easement by reservation
Example
A owns land. She sells a portion of the land to B. B asks A if he can cross her land because it is more convenient. Does B have an easement?
No, because mere inconvenience is not sufficient for an easement by necessity
Example
A owns land. She lives in a house on the east side of the property and regularly travels to a well located on the west side of the property. A sells the west side of the property to B. What type of easement does A have?
Easement by implication
Example
A and B are neighbors. A gives B permission to use the roadway across A’s land. Based on this, B pays to have the roadway paved. A later blocks the road and accuses B of trespassing. Can A prevent B from using the roadway?
No, because B has an easement by estoppel
Example
A gives B an easement to walk on his property. B begins riding his motorcycle across A’s property. May A eject B?
Yes, because B’s use was not reasonably foreseeable when the easement was created
Example
A gives B an easement to cross his land. B later purchases A’s land. Has the easement terminated?
Yes, because B cannot have an easement on his own property
Example
A gives B an easement to allow B to take his animals across A’s land. B sells his animals and moves to another state. Has the easement terminated?
Yes, because B has abandoned his easement because he is no longer using the path and has done affirmative acts demonstrating intent to abandon
Example
B has an easement to use a path to cross A’s land. A erects a fence to block B’s use of the path. Has the easement terminated?
Yes, so long as the path is blocked for the statutory period
Example
B has an easement to use a road on A’s land. B tells A he is not going to use the road anymore. Based on this, A hires workers to turn the path into a garden. B then demands that A remake the path. Has the easement terminated?
Yes, because A reasonably relied on B’s statement
Define:
1. Covenant
2. “Run with the land”
3. Benefit
4. Burden
- Promise concerning use of land that runs to successors
- Agreement binds successors
- Ability to enforce a covenant
- Subject to a covenant
What are the basic requirements to ‘run with the land’?
- Must be in writing per statute of frauds
- Original parties intended for covenant to run
- Touches and concerns the land
- Burdened party has actual or constructive notice
- Privity
What does it mean to “touch and concern” the land?
- Must affect both land owners
- Negative covenants usually touch and concern
- Unenforceable covenants (e.g. discriminatory covenants) do not touch and concern
- Affirmative covenants (e.g. paying HOA fees) tend to touch and concern under modern trend
What privity is required for a covenant to burden a successor?
- Original parties must have had horizontal privity (estate and covenant were contained in the same instrument)
- Successor and original party must have strict vertical privity (successor must take the original party’s entire interest)
What privity is required for a covenenant to benefit a successor?
Successor and original party must have relaxed vertical privity (successor need only take an interest carved-out of the original party’s estate)
Example
A conveys property to B which neighbors A’s land. A and B agree to paint their houses white. B conveys the land to C. To whom does the burden run?
Burden runs to C
Example
A conveys property to B which neighbors A’s land. The deed states that A and B promise to use the property for residential uses only. Are A and B in privity?
A and B are in horizontal privity because a deed was transferred, and that deed contained the covenant
Example
A and B have deeds that contain a promise not to build a shed on their properties. B conveys a fee simple absolute to C. Is the covenant enforceable against C?
Running the burden to C
B and C have strict vertical privity because B transferred his entire interest
So long as the covenant was transferred between A and B in the same instrument, the covenant is enforceable against C
Example
A and B have deeds that contain a promise not to build a shed on their properties. B conveys a life estate to C. Is the covenant enforceable against C?
Running the burden to C
B and C have relaxed vertical privity because B only transferred part of his interest
Covenant is not enforceable against C
What are the requirements for equitable servitudes?
Same requirements as a real covenant but no privity requirements
What is an implied equitable servitude?
Implied equitable servitude that does not need to be written
Typically arises in planned communities, e.g. condos
What are the requirements for an implied reciprocal servitude?
- Developer intended to create a covenant on all plots in the subdivision,
- Promise is reciprocal (benefits and burdens every parcel equally),
- Promise is negative,
- Successor on at least inquiry notice, and
- Common plan or scheme - look for map of the community, marketing or advertising, or oral or written mention of common restrictions
What is the changed circumstances doctrine?
- Court may stop enforcing an equitable servitude if the restriction no longer makes sense due to drastic changes in the surrounding area
- Main question: does the property still benefit from the restriction?
What is the remedy for breach of equitable servitude v. breach of covenant?
- Breach of equitable servitude: injunction
- Breach of covenant: damages
What is a common interest community?
Development in which individual units are burdened by a covenant to pay dues to an association which provides services (e.g. maintaining facilities) and enforces covenants
What are the types of common interest communities?
- Owner’s associations: property owners belong to and pay dues to an association or board
- Condominiums: individual units owned outright, common areas owned collectively as tenants in common
- Cooperatives: property is owned by a corporation made up of residents that leases individual units to residents
What is a common interest community’s association’s declaration?
- Governing documents that outline covenants and restrictions
- Valid so long as they are not illegal, unconstitutional, or against public policy
What is a common interest community’s association’s governing powers?
- Administer assessments and fees
- Manage and maintain common property
- Enforce and create new rules
New rules must be reasonably related to furthering a legitimate purpose of the association
What are the duties of a common interest community’s association?
Association must deal with members of the community:
1. Fairly
2. In good faith
3. Prudently
4. Using ordinary care
Note: Business Judgment Rule applies
Example
A developer buys land to build a community. The first conveyances contained a restriction that houses must be painted white. In a later conveyance, the developer fails to include this restriction in the deed. What type of equitable servitude is this?
Implied reciprocal servitude, because the owner is on inquiry notice since all other houses are white
Example
Houses in a subdivision all have restrictions against commercial use. When the subdivision was developed, the surrounding neighborhoods were residential. Now, commercial properties have been opened nearby. One owner in the subdivision wants to open a business on his property. Is the equitable servitude enforceable?
Court will enforce the servitude even under the changed circumstances doctrine because there has not been a change within the community so properties still benefit
What is zoning?
- Government may regulate land use through zoning laws for the protection and safety of the commmunity
- States have authority to zone based on police powers
- Local governments have authority based on enabling acts
- Purpose is to segregate incompatible uses from being developed in the same area
What are the definitions of cumulative zoning and mutually exclusive zoning?
- Cumulative zoning: residential use permitted everywhere; commercial use restricted to some areas; industrial use allowed in fewest areas
- Mutually exclusive zoning: only one use is permitted per zone
How does zoning work for existing nonconforming properties?
Occurs when a structure is in violation as result of changed zoning laws
Use may be grandfathered in, meaning it may continue with nonconforming use
If project is in process when the change happens, developer may continue constructing for nonconforming use if:
1. Developed in good faith,
2. Secured proper permits, and
3. Made substantial progress in the project
What can a nonconforming developer do?
- Cannot expand nonconforming use
- Cannot switch to another nonconforming use
- May transfer property to a new owner
How does zoning work for post-ordinance nonconforming properties?
Occurs when an owner requests to change to a nonconforming use after ordinance is in place
Owner applies for a variance:
* Use variance: right to use property for nonconforming use
* Area variance: right to develop property in violation of restrictions
What must an applicant show to obtain a variance?
- Compliance would create unnecessary hardship,
- Hardship arises from circumstances unique to property,
- Owner did not create hardship,
- Variance is consistent with overall purpose of ordinance, and
- Variance will not cause substantial harm to general welfare
What is private nuisance?
Substantial and unreasonable interference with another’s use or enjoyment of his property
* Substantial: interference that would be offensive, inconvenient, or annoying to an average person in the community
* Unreasonable: injury outweighs usefulness of defendant’s actions
What is public nuisance?
- Unreasonable interference with the community’s health, safety, or property rights
- Private party must show they experienced a unique harm
What are remedies for a nuisance action?
- Money damages
- If inadequate or unavailable, may get injunction
What are the theories of water rights?
- Riparian rights
- Prior appropriation
What are riparian rights?
- Landowners who border own rights to the waterway
- Riparian owners have right to reasonable use of water
- Riparian owner may be liable for interfering with another riparian owner’s use
What is prior appropriation for water rights?
- First person to use the water has rights, regardless of where their land is located
- In some jurisdictions, user must use the water for beneficial purposes (low standard: any productive use is sufficient)
What are the types of support rights?
- Lateral support rights
- Subjacent support rights
What are lateral support rights?
Neighboring landowner cannot excavate as to cause a cave-in on an adjacent owner’s land
* If adjacent owner’s structures contributed to cave-in, apply negligence standard
* If adjacent owner’s structures did not contribute, apply strict liability
What are subjacent support rights?
Concerns mineral rights
Surface landowners have the right to not have their land cave-in by activities of underground owners
