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Property Flashcards

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1
Q

Fee Simple Absolute?

A
  • Denoting the aggregate of all possible rights that a person may have in a parcel of land
  • May last in perpetuity [passes to heirs by intestacy]
  • Largest possible estate in land
  • Presumed unless otherwise state

A conveys to “J and his heirs,” under modern “to J” is sufficient

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2
Q

Fee Simple Determinable?

A

terminates automatically upon the happening of a named future event;

thus, AUTOMATICALLY reverts

[Grantor retains possibility of reverter]

  • Created in one clause w/ limitation built into it
  • Denoted by “for as long as, during, while, until,” etc.
  • Durational language
  • Possibility of Reverter is held wth the Grantor
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3
Q

Fee Simple Subject to a Condition Subsequent?

A

Grantor reserves the right to–MAY–terminate the estate upon the happening of a stated event

[Look for clear conditional language]

  • Condition ONLY gives grantor right to take estate. NOT automatic
  • Created in 2 separate clauses w/ the condition stated in 2nd clause
  • “But if, in the event that,” … “retake the premises”
  • Right of Reentry is held by the grantor
  • If language is ambiguous: then treat as an FSSCS
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4
Q

Fee Simple Subject to Executory Interest?

A

estate that is automatically divested in favor of a 3rd party

on the happening of a stated event

  • Can be created by either: durational or conditional language
  • J conveys “to A, but if land ceases to house a school, then to B”
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5
Q

Fee Tail?

A

freehold estate that descended to Grantee’s lineal descendants [children] only

  • Denoted by “to J and the heirs of his body”
  • Florida real property may not be entailed.
    • Instrument creating FT: creates life estate in 1st taker w/ remainder per stirpes to 1st taker’s lineal descendants at time of her death.
    • No remaindermen: to any other designated remaindermen.
    • No designated remaindermen: to original donor OR her heirs.
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6
Q

Life Estate?

A

lasts for the duration of the grantee’s life

  • Denoted by, O conveys “to J for life”
  • Life estate pur autre vie measures life of 3rd party other than grantee
  • Life estates can be made defeasible [terminate early]
  • A life estate measured by Grantee’s life is not devisable/descendible
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7
Q

Freehold Estates?

A

gives possession to property under some legal title

  • Words of purchase: describe person taking interest under device
  • Words of limitation: describe nature of estate taken by purchaser
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8
Q

Non-freehold Estates?

A

give mere possession but not legal title

  • Term Estate (Leasehold Estate)
  • anything less than a life estate
  • Essentially a landlord/tenant relationship.
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9
Q

Possibility of Reverter?

A

future interest created automatically in Grantor whenever he hands out a determinable estate

  • Fully transferable [transferable, devisable, and descendible]
  • Statute of Limitations when limitation occurs
  • Not subject to Rule Against Perpetuity
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10
Q

Right of Reentry (Powers of Termination)?

A

future interest created in Grantor that follows a FSSCS

  • Creation: MUST be spelled out [not automatic] in conveyance
  • To revert back, Grantor must exercise right
  • Descendible, majority devisable & few transferable inter vivos
  • Statute of Limitations when grantor attempts to exercise right
  • Not subject to Rule Against Perpetuity
  • FSSCS/RoR preferref over FSD/RoR b/c no automatic forfeiture.
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11
Q

Reversion?

A

future interest retained by Grantor when Grantor transfers less than a fee interest to a 3rd party

  • Transferable, devisable, & descendible
  • Not subject to Rule Against Perpetuities
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12
Q

Executory Interests?

A

future interest in a 3rd party that cuts short the previous estate before it would have naturally terminated

  • Since a fee estate has potential to last forever, any interest created in a 3rd party that follows the granting of a fee will always be an executory interest
  • It is transferable, devisable, & descendible
  • Subject to Rule Against Perpetuities
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13
Q

2 Types of Executory Interests?

A
  • Shifting E.I.: an interest that cuts short a prior estate created by the same conveyance. Interest passes from grantee to grantee
  • Springing E.I.: an interest that follows a gap in possession or divests the estate of the transferor. Interest passes from grantor to grantee
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14
Q

Remainder?

Types?

A

future interest created in a 3rd person,

which is intended to take after the natural

termination of the preceding estate

  • Contingent Remainder
  • Vested Remainder
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15
Q

Contingent Remainder?

A

[any remainder not vested]

  1. takers are unascertainable or
  2. interest subject to a condition precedent; thus, does not fall in automatically on the natural termination of previous estate
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16
Q

Vested Remainder?

A
  1. at creation takers ascertained or ascertainable AND
  2. not subject to any condition precedent other than the termination of the previous estate
  • It is transferable, devisable, & descendible
  • Fully vested remainder not subject to Rule Against Perpetuities, but remainder subject to open is
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17
Q

Special Types of Vested Remainders:

Vested remainder subject to condition subsequent?

A

is a presently vested remainder that’ll terminate upon the happening of some designated event; vested remainder subject to complete divestment

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18
Q

Types of Waste?

A

Voluntary

Permissive

Ameliorative

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19
Q

Remainder vested subject to open?

A
  1. created in a class of people, &
  2. has at least 1 member that is ascertainable and who has satisfied any conditions precedent to vesting, but may have other member join class later
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20
Q

Remainder: Class Opening?

A
  • Inter vivos conveyance: at time of conveyance
  • Testamentary conveyance: at death of Testator
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21
Q

Remainder: Class Closing?

A
  • Rule Against Perpetuities can void a future interest.
  • Rule of Convenience: class closes as soon as any member is entitled to possession of property
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22
Q

Voluntary waste?

A

voluntary commission of an act

that has more than a trivial injurious effect

on or change in the property.

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23
Q

Permissive waste?

A
  • involuntary;
  • permits premises to fall into disrepair;
  • may also occur if fails to pay mortgage interest payments, taxes, or Tenant’s share of special assessments
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24
Q

Ameliorative waste?

A

actually makes improvements to land

Life tenant allowed to commit ameliorative waste if:

  1. market value of remainderman’s interest is not impaired & it is permitted by the remainderman OR
  2. substantial & permanent change in neighborhood has deprived the property of a reasonable current value

Holder of a remainder has standing to sue for past or future waste.

  • Vested remainderman: can sue for damages/injunction to stop
  • Contingent remainderman: only sue for injunction to stop waste
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25
Q

Restraints on Alienation?

A

condition placed on ownership of real property that restricts the free conveyance of that property

Total restraint:

  1. On a fee: generally not valid
  2. On less than a fee: generally upheld so long as it reasonable

Partial restraint:

  1. Purchase option [right to buy back]
  2. Right of first refusal

Both are valid if REASONABLE

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26
Q

Rule Against Perpetuities?

A

“[n]o interest is good,

UNLESS it MUST vest, if at all,

not later than 21 years after some life in being

**at the creation of the interest” **

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27
Q

Rule Against Perpetuities applies to what interests?

A

Primarily:

contingent remainders
executory interests

Other interests that RAP applies to include:
• interests subject to open
• powers of appointment
• options to purchase (other than tenant’s option
during lease term)
• rights of 1st refusal

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28
Q

Right of Survivorship?

A

if a co-tenant dies,

ownership passes entirely to remaining owner(s)

right takes precedent over all else, including wills

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29
Q

Concurrent Estates?

A

2+ persons share concurrently

an interest in real property.

Each concurrent owner is a co-tenant.

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30
Q

SEVERING JOINT TENANCY?

A
  1. Becomes tenancy in common when severed
  2. Done by an inter vivos act of a co-tenant
  • a) have it partitioned
  • b) attempt to sell her interest in property
  • c) mortgages her interest in property
    • Lien will not sever joint tenancy, but transferring title will.
  1. Majority–including FL–(Lien Theory): mortgage viewed as lien on prop
  2. Min. (Title Theory): mortgage considered title to prop
  • d) If 3+ joint tenants & 1 severs his interest. Joint tenancy remains intact with the remaining tenant for the % severer did not own, and the whole property will be a tenancy in common with the non-severers and the new tenant.
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31
Q

Tenancy in Common?

A

form of concurrent ownership, where each co-tenant (1) owns an undivided interest in the whole of the property (2) w/o the right of survivorship

  • Presumed form of co-tenancy, unless stated otherwise [i.e., adding right of survivorship]
  • Only requires unity of possession
  • May freely transfer inter vivos:
  1. voluntarily: conveyance, lease, or any transfer of present possessory or future property interest, intestacy, devise
  2. involuntarily: foreclosure on co-tenant’s interest, or execution of judgment creditor’s lien on tenant’s interest
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32
Q

Joint Tenancy?

A

form of concurrent ownership, where each co-tenant (1) owns an undivided interest in whole of the property (2) WITH right of survivorship

  • Traditionally, joint tenancy required following 4 unities:
  1. TIME - each joint tenant interest must vest at same time
  2. TITLE - each joint tenant must be created in same instrument
  3. INTEREST - each joint tenant must hold an equal share of the property
  4. POSSESSION - each joint tenant has same equal right to possession
  • Majority: only require [INTEREST & POSSESSION]
  • May transfer via voluntary or involuntary transfer of interest
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33
Q

Tenancy in Common vs. Joint Tenancy?

A

TiC JT

Presumed Survivorship

Only poss required At least Interest & poss req

Different possession OK Equal possession interest

Interest freely transferred Severe via inter vivos act

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34
Q

Tenancy by the Entirety?

A

form of concurrent ownership

reserved for married couples,

which gives each spouse an undivided interest

in the whole of the property and the right of survivorship

[only b/w a husband & wife]

  • Severs into a tenancy in common when: divorce, death of spouse
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35
Q

Rights and Duties of Co-Tenants:

Possession of Property?

A

Each co-tenant entitled to possess whole property; If denied possession: bring suit for damages or ejectment

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36
Q

Rights and Duties of Co-Tenants:

Profits?

A
  • If produced by 1 of the co-tenant’s efforts: other co-tenants have no right to share in those profits unless they were ousted from use of property
  • If generated by what a 3rd party is doing w/ property (rent): all co-tenants entitled to equal share
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37
Q

Rights and Duties of Co-Tenants:

Expenses?

A
  1. Taxes/mortgage payments: each co-tenant must pay a proportionate share
  2. Repairs: no direct duty of repair, but if a co-tenant makes repair, she may be allowed to offset cost from 3rd-party [rent] received or partition action to be compensated
  3. Improvements: no duty, but co-tenant so choose cannot receive contribution, unless property sold and any additional funds received due to improvement co-tenant will receive
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38
Q

Adverse Possession:

Physical Occupation of Land

MUST be?

A

actually, openly, notoriously, & exclusively

occupies land in a manner sufficient to put

the true owner on notice

  • Scope: Can only claim portion of the land actually occupied,
  • EXCEPTION: when AP enters under color of title, then occupies significant portion [fact question] of property described in flawed deed then can claim all property noted in flawed deed
  • Future interests/actual interest – can only take what owner has; therefore, if life estate, can only own for a long as owner alive. Ex: true owner gave sub-surface rights to 3rd party, AP only get surface rights
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39
Q

Adverse Possession?

A

Legally sanctioned taking of title to land

from the rightful owner.

Factors:

  1. Physical occupation:- actually, openly, notoriously, & exclusively occupies land
  2. Inent: done w/ sufficiently hostility [claiming land as yours] intent
  3. Time - on land continuously for statutory period
    • continuous requirement is not literal. Seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed (e.g., a vacation home, land at a summer camp).
  • Common law: 20 years
  • Florida: 7 years
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40
Q

Adverse Possesion:

Intent?

A

done w/ sufficiently hostile intent;

claiming land as yours

2 types:

  1. CLAIM OF RIGHT
  2. COLOR OF TITLE
  • Permission to be on land always destroys hostile intent, but mere knowledge does not imply permission.
  • Co-tenancy - only way to adversely possess against another co-tenant is to oust other co-tenant from making use of property
  • Mistaken encroachment is sufficient hostile intent.
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41
Q

Adverse Possession:

Time?

A

on land continuously for statutory period

[CL: 20 years] [FL: 7 years]

  • Continuously is question of fact based on nature of property
  • TACKING: Combines adverse possession periods to meet requirement (requires transfer from 1 AP to another)
  • DISABILITY: Suspend or tolls running of statute of limitation ONLY if there at beginning of AP period & starts once disability ends

  1. Minor [rightful owner]
  2. Insane [rightful owner]
  3. Imprisoned [rightful owner]
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42
Q

Rights of the Adverse Possession & True Owner?

A

Before AP period has run:

  1. TO can: eject AP on land & collect damages [e.g., rental value]
  2. AP considered a trespasser

After AP period run:

  1. AP relates back to date of entry onto land
  2. AP is: owner against rest of world
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43
Q

Types of Tenancies?

A
  1. Tenancy for Years
  2. Periodic Tenancy
  3. Tenancy At-Will
  4. Tenancy at Sufferance (Holdover Tenant)
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44
Q

Tenancy for Years?

A

tenancy w/ a fixed starting & ending date

  • Creation: by agreement b/w landlord & tenant
  • Can be oral UNLESS duration is for longer than 1 year
  • Term: Specified by agreement
  • Termination: Automatically at end of period
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45
Q

Periodic Tenancy?

A

it has a fixed starting date but no fixed ending date

  • Creation: Expressly by word of parties, but often by implication [hold over tenancy situation]
  • Term: indefinite
  • Termination: by giving appropriate notice of intent to terminate tenancy
    • Appropriate notice MUST:
      1. written
      2. equal to rental period up to a max of 6 months
      3. Timing: notice takes effect at start of next rental period [on exact date rent due]
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46
Q

Tenancy At-Will?

A

tenancy at will of the parties

  1. Creation: expressly at will of parties
  2. Termination
  • when either party decides to terminate the tenancy
  • either party dies
  • attempt to transfer interest in tenancy
  • If agreement gives only LL right to terminate at will, T also has right; If agreement gives only T right to terminate at will, LL does not have right too
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47
Q

Tenancy at Sufferance (Holdover Tenant)?

A
  • Created out of a holdover situation: Holdover situation a tenant has tenancy for years, but at end of lease tenant remains on premises
  • Holdover tenant status is determined by LL:
  1. If LL wants tenant to remain: PERIODIC TENANT (period is that for which rent it reserved)
  2. If LL doesn’t want tenant to remain: TENANT AT SUFFERANCE, until LL can succeed in getting tenant off property [eviction]
    * Acceptance of rent:
  3. LL accepts rent: strong evidence, LL wants tenant to stay
  4. LL doesn’t accept rent: strong evidence, LL doesn’t want tenant to stay
  5. Amount of rent: Rent amount under the old lease is the amount due
  6. Exception: LL can impose a HIGHER rent if LL informed T of increase prior to expiration of the old lease.
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48
Q

Common Disputes Between Landlord and Tenant:

Fight Over Rent:

Determine how much rent landlord can sue for:

Tenancy for Years?

A
  1. Entire rental obligation promised in lease
  2. Contract implications
  • Majority: allows for anticipatory repudiation of entire lease & can sue immediately for entire rental obligation. [CL: LL only sue for rent as it accrued]
  • LL duty to mitigate [reasonable]: e.g., re-rent the room in hopes to lessen amount owed
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49
Q

Common Disputes Between Landlord and Tenant:

Fight Over Rent:

Determine how much rent landlord can sue for:

Periodic Tenancy?

A

whatever rental obligation is up until point of notice to terminate lease

[moving out would be considered the giving of notice &

would ONLY be liable for an additional rental period]

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50
Q

Common Disputes Between Landlord and Tenant:

Fight Over Rent:

Determine how much rent landlord can sue for:

Tenancy At-Will?

A

amount of rent fixed in the agreement that is already owed

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51
Q

Common Disputes Between Landlord and Tenant:

Fight Over Rent:

Determine how much rent landlord can sue for:

Tenancy at Sufferance?

A

(a) Periodic tenancy: cost of rental value in expired lease
(b) Tenant at sufferance: reasonable rental value of the property

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52
Q

Rent payment defenses:

Failure to deliver possession?

A
  • Majority: LL’s obligation to deliver possession of property to tenant & if he failed to do so, T2 would be excused from having to pay rent until LL got T1 off of premises
  • Minority: American Rule: LL has no obligation to deliver possession of premises, it’s the tenant’s duty
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53
Q

Rent payment defenses:

ACTUAL Eviction?

A

LL has been physically removed from property by LL or 3rd party on his behalf

[this ends rental obligation at this point]

  1. Partial eviction by LL: LL had evicted you from a portion of property [excuses tenant from paying any rent]
  2. Partial eviction by agent of LL: rent abatement, only has to pay for portion used or had access to
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54
Q

Rent payment defenses:

CONSTRUCTIVE Eviction?

A

eviction: [No actual physical removal] LL allowed/created condition on premises that have substantially interfered w/ tenant’s use & enjoyment of the property

  1. Tenant must actually move out w/in reasonable time following act constituting substantial interference.
  2. If it is an action of 3rd party: LL has to reason to know that action of 3rd party will substantially interfere w/ tenant’s use & enjoyment
  3. If total constructive eviction: defense to payment of any rent
  4. If partial constructive eviction: rent abatement, excused from paying for portion evicted from
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55
Q

Rent payment defenses:

Surrender?

A

In order to have defense to payment of rent: LL has to accept surrender & retake possession of premises

  • Rare to see a defense of surrender, b/c often retaking possession to re-rent & mitigate damages on behalf of former tenant
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56
Q

Rent payment defenses:

Destruction?

A

No distinction in all or a portion of the building.

Rent excused once destroyed.

[CL, if tenant leased whole building & destroyed still owed rent. Only apt renters would be excused from rent payments when building burned]

  • EXCEPTION: Tenant negligently or intentionally caused the destruction.
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57
Q

Rent payment defenses:

Warranty of Habitability?

A

Requires LL to maintain premises in a habitable condition; applies to residential leases only

(Minority: extends to commercial leases)

  1. Constructive eviction: (1) uninhabitable [substantially interfered w/ tenant’s use & enjoyment of property] & (2) tenant moves out
  2. If problem but tenant does not leave, but can’t live there comfortably, can notify LL to correct issue, must give LL reasonable period of time to make corrects, if after reasonable time then tenant may make repairs and offset cost of returning to habitable condition & deduct it from rent owed.
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58
Q

Rent payment defenses:

K law defenses?

A
  • ImpractIbility
  • Impossibility
  • Frustration of purpose
  • Violation of quiet use & enjoyment of property
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59
Q

Condition of Premises:

LL Obligations?

A
  1. Common: had no obligation to repair leased premises
  2. Modernly, there are statutory exceptions.
  3. Implied Warranty of Habitability: maintain premises in a habitable condition [residential lease only; majority]
  4. Other statutory obligations.
  5. There may be additional liability in tort.
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60
Q

Condition of Premises:

Tenant Obligations?

A
  1. Common: no obligation to repair
  2. Duty to avoid waste.
    • a) Voluntary waste: tenant has duty not to do anything intentionally/negligently that could cause damages, if so tenant is liable
    • b) Permissive waste: tenant has to take reasonable steps to guard against damage to the property, if so tenant is liable
    • c) Ameliorative waste:
      • 1) Modern law: can do so if expressly authorized or change in community, if so tenant is liable
      • 2) Common law: not authorized to make any improvements, if so tenant is liable
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61
Q

Disputes Between Landlord and Tenant:

Fight Over Possession?

A

If lease is entered into & LL leased property to tenant, then tenant has possessory right to property.

  1. LL can only retake property if: tenant committed material breach of lease
    • a) Doesn’t allow use of any force, must resort to legal process
      • 1) LL must give notice to tenant to either cure breach or vacate. [often 3-10 days]
      • 2) Then a hearing to determine whether tenant has committed breach, & if it is found that they have, they will be evicted.
    • b) Common: LL entitled to use reasonable force to retake possession from tenant
  2. Courts will not uphold what they view as a retaliatory eviction.
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62
Q

Disputes Between Landlord and Tenant:

Improvements?

A
  1. Can fixture be removed & premises left in substantially same condition as when tenant arrived? If so: T entitled to remove fixture, MUST remove before lease expires
  2. Common: anything improved becomes part of land & MUST stay [ameliorative waste] Unless, Trade fixtures (item used in course T’s trade/business) can be removed, Unless, removal will cost substantial damage to property
  3. Structural changes can’t be removed b/c presumption cannot be returned to substantially same condition as when tenant arrived
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63
Q

Landlord & Tenant:

Tenant’s Transfer of Interest:

Assignee?

A

T transfers remaining rental obligation in terms of time to another

  • LL can sue new tenant on privity of estate & old tenant on privity of K
  • If more than 1 transfer when assignee assigns property to another, original asignee’s privity of estate has ended. Original assignee liable for rent due while he was assignee. Therefore, LL may sue original tenant K and new asigneee on privity of estate
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64
Q

Landlord & Tenant:

Tenant’s Transfer of Interest:

Sublessee?

A

tenant transfers portion of rental obligation in terms of time to another

  • Can sue original tenant on privity of K, not sublessee …cannot force sublessee to pay rent cause not in privity of K. However, if LL not receiving rent, this is a material breach of lease and the LL can have him evicted.
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65
Q

Transfer of Interest in Leases?

A
  • Generally: fully transferable
  • LL may write a prohibition on transfer into a lease.
  1. prohibitions in transfer of a lease generally will be upheld
  2. To prohibit both an assignment and a sublease: you must state both are prohibited
  3. If consent is involved: LL must act reasonably & good faith in granting consent
  4. Rule in Dumper’s Case: if express prohibition against assignment in lease, & LL expressly./impliedly waives restriction once waived deemed waived for remainder of lease unless stated otherwise
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66
Q

Water Rights?

A
  1. Riparian View (Majority) - anybody w/in watershed[touches water] has right to make reasonable use of water
  2. Prior Appropriation/Use View (Minority) – 1st to use water is 1st in right
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67
Q

Ways to Terminate a Covenant or Equitable Servitude?

A
  1. writing release
  2. merger of dominant & servient estate
  3. abandonment
  4. estoppel
  5. Changed circumstance so that reason behind restriction is no longer valid.
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68
Q

Equitable Servitudes:

INJUNCTIONS require?

A
  1. Touch and concern
  2. Intent
  3. Notice
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69
Q

Distinguish b/w covenants & equitable servitudes?

A

Covenants when breached: lead to damages

Equitable servitudes when breached: lead to equitable remedies [e.g., injuntion]

70
Q

For a covenant to run w/ the land, the following elements must be satisfied:

A

PINT

  1. Privity
  2. Intent
  3. Notice
  4. Touch & Concern use and enjoyment of land
71
Q

Covenants that Run w/ the Land:

Touch & Concern the Land?

A
  1. Servient estate: restriction has to reduce the use & enjoyment of the estate
  2. Dominant estate: restriction has to increase the use & enjoyment of the estate
  3. Affirmative restriction: requires owner of servient estate to act.
  4. Negative restriction: places limitation on owner of servient estate
72
Q

Covenants that Run w/ the Land:

Interest?

A

must be intended that restriction be in successors in interest

73
Q

Covenants that Run w/ the Land:

Notice

A

new owner of servient estate must take notice of restriction

74
Q

Covenants the Run with Land:

Types of Privity?

A

Horizontal privity

Vertical privit

75
Q

Covenants the Run with Land:

Vertical Privity?

A

privity of estate

  1. Holder of servient estate transfer all of her interest to new owner
  2. On dominant side, it does not matter whether holder of the dominant estate is transferring all of part of their interest.
76
Q

Covenants the Run with Land:

Horizontal Privity?

A

privity of K in connection w/ the land

b/w original parties

  • Requires privity of contract in connection w/ land. Such as: LL/tenant; Grantor/grantee; or Mortgagor/mortgagee
77
Q

Easements?

A

interest In land giving right to make use of someone else’s land for specified purpose

Checklist for easements:

  1. Creation
  2. Scope
  3. Termination
78
Q

Ways to Create Easements?

A
  1. Expressly: writing sufficient to satisfy statute of frauds
  2. Implication
    • Easement by prescription
    • Easement by conveyance
    • Easement by necessity
  3. Public use: Public is using land continuously for statutory period
79
Q

Easement by conveyance?

A
  1. Common ownership of dominant & servient estate, then severance
  2. Prior use [quasi-easement] – existed at time of severance
  3. Reasonable necessity
80
Q

Easement by necessity?

A
  1. Common ownership of dominant & servient estate, then severance
  2. Strict necessity
81
Q

Servient estate?

Dominant estate?

Easement appurtenant?

Easement in gross?

A
  • Servient estate: burdened [You always must have a servient estate.
  • Dominant estate: benefited [You do not have to have a dominant estate.
  • Easement appurtenant: easement vested in/runs with land
  • Easement in gross: easement vested in person
82
Q

Scope of an Easement?

A
  • Reasonably necessary to do so
  • Holder must do what is reasonably necessary to maintain easement, even if it interferes w/ servient owner’s use of his property
  • Problems arise when use goes beyond what is reasonable.
    • Known as SURCHARGING THE EASEMENT: overusing an easement will not terminate it, but allow suit to enjoin excessive use OR seek damages
83
Q

Termination of Easements:

Destruction of servient estate?

A

Destruction of servient estate will terminate an easement UNLESS owner of servient estate intentionally caused the destruction

84
Q

Termination of Easements Arising from actions of the owner of the servient estate?

A
  1. Prescription: if owner of servient estate interferes w/ use easement for statutory period will terminate easement
  2. Servient estate is sold to a BFP [value & no notice]

Easement will otherwise typically run with the land

85
Q

Termination arising from actions of easement holder?

A
  1. Merger of title – anytime same person acquires ownership of both dominant & servient estate (If owner then sells off servient estate, easement not automatically recreated).
  2. Written release – easement holder may release any rights held in an easement in a writing sufficient to satisfy SoF
  3. Abandonment requires:
    • STOPping use of an easement &
    • words & actions demonstrating INTENT to abandon
  4. Easement terminated by estoppel - owner servient estate detrimentally relies on easement holder’s stopping to use an easement
  5. Severance - if owner of dominate estate attempts to severe easement
86
Q

Profits?

A
  1. ANALYSIS SAME AS EASEMENTS
  2. Viewed as a super-easement: right to enter land & take something from/off it
  3. Can only be created expressly or by prescription.
87
Q

Licenses?

A

privilege to enter land, but a mere personal right; step down from an easement

  • Not interest in land, so No statute of frauds analysis, can be oral
  • Freely revocable at any time, for any reason unless made irrevocable
    • a) license coupled w/ an interest: 1 person owns personal property on land of another & has privilege incidental to such personal property to come on land to use or recover personal property
    • b) executed license: based on estoppel & often involves substantial expenditure of funds in reliance on promisor’s promise to allow promisee to use land. Often, deemed equivalent to an easement.
88
Q

Mortgage?

A

A security device used to secure repayment of a debt.

  1. 2 instruments create a mortgage:
    • MORTGAGE: doc that indicates existence of debt
    • NOTE: Borrower’s promise to repay the loan/debt
  2. Parties: Mortgagor: Borrower; Mortgagee: Lender
  3. Mortgage enforceable even though no one is personally liable to perform the obligation for which the mortgage serves as security; mortgagee has right to enforce its security interest through foreclosure
89
Q

Real Property Mortgages:

Remedies on Default of the Debt:

Debtor’s remedy?

A
  • Equitable right of redemption: paying off debt or bringing loan current anytime prior to foreclosure sale
  • Statutory right of redemption: after foreclosure sale through jurisdictional statute allowing right [Forces buyer of foreclosure to sell to debtor w/in prescribed time period]
90
Q

Real Property Mortgages:

Remedies on Default of the Debt:

Creditor’s remedy?

A

Foreclosure [seize & sell for foreclosure sale]

Proceeds of sale are used:

  1. Pay off cost of sale
  2. Pay off debt [in order attached, remainder to debtor]
    • If multiple mortgages, & 1st mortgage defaults a purchaser takes title free & clear of any mortgages [mortgages discharge through foreclosure sale if creditors properly notified]
    • If multiple mortgages, & later mortgage defaults a purchaser takes title with senior mortgages [junior mortgages discharged]
      • Senior interest – any mortgage higher in priority than one being foreclosed upon & unaffected by foreclosure sale
      • Junior interest – any mortgage lower in priority than one being foreclosed upon
91
Q

Remedies on Default of the Debt:

Deficiency judgment?

A

judgment holding someone personally liable for amt of debt not retired by foreclosure sale

92
Q

Transfer of the Mortgaged Property?

A

if person purchased property SUBJECT TO A MORTGAGE than person is NOT personally liable for debt it’s attached to land; however, if person buys and ASSUMES DEBT than person become primarily liable w/ previous debtor being secondarily liable.

  • If ambiguous language: Then presumed to be “subject to.”
93
Q

Ways to Determine Priority in

Recording Acts & Titles?

A
  1. Race Statute [Almost never tested] – 1st to records wins
  2. Notice Statute
  3. Race-Notice Statute
94
Q

Recording Acts & Titles:

Notice Statute?

A
  1. Bona fide purchaser (BFP): pays value (not 50%) & takes w/o notice of another claim
  2. Paying value: paying reasonable purchase price
    • a) Mortgagee is someone that pays value
    • b) Judgment creditor is deemed to have paid value, ONLY over subsequent claims
  3. Notice
    • ACTUAL notice: subjective knowledge is actually possessed
    • CONSTRUCTIVE notice: recording of deed
    • INQUIRY notice: info that would lead RPP to further inquiry
    • NOTICE must be before time of sale
95
Q

Recording Acts & Titles:

Race-Notice Statute?

A
  • 1st to record conveyance & is BFP [value & w/o notice] who records 1st.
  • 2 parties fighting: Majority – more emphasis on race component.

NOTICE must be before time of sale

96
Q

Estoppel by deed?

A

if grantor transfers title he doesn’t current own but subsequently acquires title he is estopped from denying title to original grantee

97
Q

Wild deed?

A

a deed that it outside the chain of title

98
Q

3 requirements for a valid conveyance?

A
  1. WRITING that:
    • 1) Identify PARTIES [sufficient I.D. of the grantee]
    • 2) Words indicating INTENT to make present transfer of property
    • 3) Sufficient description of PROPERTY
    • 4) Grantor’s SIGNATURE
  2. DELIVERY of the deed
  3. Deed [must be] ACCEPTED by buyer (presumed if transfer is beneficial to grantee, but if grantee refuses to accept there’s no conveyance)
99
Q

Conveyance of Real Property by Deed:

DELIVERY of the deed:

Grantor gives deed to 3rd party [escrow situation]?

A
  1. If grantor expressly retains right to reclaim deed from 3rd party then there is no transfer of title
  2. Relation-Back Doctrine: if grantor gives deed to 3rd party[escrow agent] & tells to delivery to grantee. Date of conveyance relates back to date deed issued to agent.
    • A.) If conditions placed on delivery, & grantor transfers property to someone else before condition occurs:
      • Once condition met, conveyance will relate back to date grantor gave 3rd party deed, which was before transfer to new person & goes to original grantee. However, more conditions & more likely subsequent grantee will win [no delivery].
    • B.) Death escrow [Grantor gives the deed to X, the third party, & says, “X, give this deed to grantee when I die.]
      • when grantor gives deed to 3rd party he’s making a present transfer & is giving himself a life estate & transferring remainder to grantee.
100
Q

Conveyance of Real Property by Deed:

DELIVERY of the deed:

Grantor retains deed?

A

[REBUTTABLE PRESUMPTION OF NO DELIVERY]

Presumption may be rebutted through extrinsic evidence to the contrary, not rebuttable for mere conditional grants

101
Q

Conveyance of Real Property by Deed:

DELIVERY of the deed:

Grantor gives deed to grantee?

A

[REBUTTABLE PRESUMPTION OF INTENT]

Presumption may be rebutted through extrinsic evidence to contrary, not rebuttable for mere conditional grants

102
Q

DEED sufficient to satisfies the Statute of Frauds, if?

A

WRITING that:

  1. Identify PARTIES [sufficient I.D. of the grantee]
  2. Words indicating INTENT to make present transfer of property
  3. Sufficient description of PROPERTY
  4. Grantor’s SIGNATURE
103
Q

Real Property Contracts: Statute of Frauds?

A

Requires

  1. writing for a transfer of an interest in real property that must be
  2. signed by party to be charged & include:
  3. describe property;
  4. describe parties;
  5. price; &
  6. any agreed upon conditions re: price or payment.
104
Q

Real Property Contracts:

Exceptions to Statute of Frauds?

A

Doctrine of part performance: acts of part performance unequivocally prove existence of K. Need combination of the following:

  1. payment of all or part of purchase price;
  2. taking of possession;
  3. making substantial improvements.

Equitable &–under modern trend–promissory estoppel may also be used to prove an oral contract for the sale of land.

  • Equitable estoppel is based on an act or a representation.
  • Promissory estoppel is based on a promise.
105
Q

Equitable Conversion?

A

When land sale K formed, at that point there is a bifurcation of title.

  1. EQUITABLE title: passes to BUYER
  2. LEGAL title: remains with SELLER until closing of deal

Risk of loss follows equitable title

[minority follows legal title]

106
Q

Marketable Title?

A

implied covenant

that seller will deliver a marketable title

  • does not mean perfect title, but a title reasonably free from defect
  • If the seller cannot deliver marketable title, the buyer’s remedy is rescission of k.
  • Defects may include:
    • a) mortgage
    • b) covenant or easement restricting use & enjoyment of land
    • c) title received by adverse possession [until AP becomes rightful possessor]
    • d) existing condition on land that violates zoning restrictions
  • Seller may use proceeds of a sale of land to remove cloud on title & make it marketable
107
Q

Can a seller use proceeds from the sale of land to remove a clud on the title?

A

YES

Seller may use proceeds of a sale of land to remove cloud on title & make it marketable

108
Q

Merger Doctrine?

A

Land sale K deemed to merge into deed; therefore, marketable title is merged into deed, AND at this point can only sue upon deed.

109
Q

Quitclaim deed?

Warranty deed?

General warranty deed?

Special warranty deed?

A
  1. Quitclaim deed: as-is deed; purchasing rights previous party possessed
  2. Warranty deed: can sue; through breach of 1-6 covenants of title
    • a) General warranty deed: often contains all 6 of these covenants of title
    • b) Special warranty deed: may not contain all 6 or may not cover period prior to grantor owning land
110
Q

Covenants of Title:

Present Covenants?

A

Do not run w/ land,

can only be breached at time of closing

  1. Covenant of seisin – promise grantor does own property
  2. Covenants right to convey - promise has power to convey property
  3. Covenants against encumbrance - promise no encumbrance visible [easement] /invisible [mortgage] on property
111
Q

Covenant of seisin?
Covenants right to convey?
Covenants against encumbrance?

A

Present Covenants of Title

  1. Covenant of seisin – promise grantor does own property
  2. Covenants right to convey - promise has power to convey property
  3. Covenants against encumbrance - promise no encumbrance visible [easement] /invisible [mortgage] on property
112
Q

Covenants of Title:

Future Covenants?

A

Run w/ land,

breach can be at time of closing or afterwards.

  1. Covenants quiet enjoyment - promise will not be disturbed by 3rd party asserting valid claim
  2. Covenants warranty - promise grantor will defend grantee from 3rd party claim
  3. Covenants further assurances - promise grantor will do anything reasonable necessary to perfect grantees title
113
Q

Covenants quiet enjoyment?
Covenants warranty?
Covenants further assurances?

A

Future Covenants of Title

  • Covenants quiet enjoyment - promise will not have interference with possessionbe by 3rd party asserting valid claim
  • Covenants warranty - promise grantor will defend grantee from 3rd party claim
  • Covenants further assurances - promise grantor will do anything reasonable necessary to perfect grantees title
114
Q

LANDLORD & TENANT:

Anticipatory breach?

A

Although LL can sue T for rent as it becomes due,

LL cannot sue for future rent due under lease b/c the

doctrine of anticipatory breach does not apply to leases.

115
Q

Divest?

A

to terminate a prior interest in land

116
Q

pur autre vie?

A

“for another[’s] life” in French

a life estate measured by the life of another

117
Q

A co-tenant can collect _____________ from the other co-tenants for payments in excess of her share of the operating expenses.

A

contribution

118
Q

There is _______ right to reimbursement from co-tenants for necessary repairs or improvements. The co-tenant who makes the repairs can get credit in a partition action.

A

NO

  • The co-tenant who makes the repairs can get credit in a partition action.
119
Q

PARTITION?

A

court’s division of a concurrent estate

(equitable remedy)

  • Effect of a partition action is that the court will divide the property into distinction portions
  • Courts favor a physical division of the estate, unless, it’s not practical or unfair to all the parties.

Partition by sale: Proceeds are divided among co-Ts based on their ownership interests.

  • Co-Ts can agree not to partition, provided: the agreement is clear and the time limit is reasonable
120
Q

Rule of Convenience?

A

If grant doesn’t have an express closing date, the Rule of Convenience closes the class when any member of the class becomes entitled to immediate possession.

  • Prevents classifying an interest as vested subject to open and therefore avoid RAP
121
Q

Rule in Shelley’s Case?

A

Prevents against remainders in grantee’s heir

  • Uses doctrine of merger to create a fee simple
  • Oliver conveys “to Anna for life, then to Anna’s heirs.” What estate does Anna have under the Rule in Shelley’s case? Fee simple
122
Q

Doctrine of Worthier Title?

A

Prevents against remainders in grantor’s heirs

  • Creates presumption in a reversion to grantor
  • Oliver conveys “to Anna for life, then to my heirs.” What future interest does Oliver retain under the Doctrine of Worthier Title? Reversion
123
Q

Landlord-Tenant:

Duty to Repair?

A

In a residential lease, the LL is presumed*** to be responsible for repairs. The tenant must ***notify the landlord of any needed repairs.

  • LL is not responsible to make repairs caused by the tenant’s actions.
  • In a commercial lease, the landlord can place the duty to repair on the tenant.
124
Q

Can the landlord deny permission to a transfer of the lease?

Can the landlord transfer his own interest without the tenant’s permission?

A
  • Majority Rule: LL may deny permission to a transfer only for commercially reasonable reasons
  • Minority Rule: LL may deny permission at his discretion
  • A LL does not need the tenant’s permission before transferring her interest, but a new LL is bound by terms of the existing lease.
125
Q

Fair Housing and Discrimination?

A

no one should suffer unequal treatment in housing decisions based on a protected characteristic such as race, gender or disability

  • What’s prohibited? Refusing to rent; Requiring different rents; Falsely denying that a unit is available; Providing different services to facilities; Biased advertising (ex. perfect bachelor pad” discriminates against families and sex)
126
Q

Adverse Possession:

Disability?

A

The statute of limitations will not run against a true owner who has a disability at the time the adverse possession begins. Common examples of disabilities include insanity, infancy or imprisonment

127
Q

Adverse Possession:

Interruptions?

A

A true owner can interrupt the adverse possession period by ejecting the adverse possessor. This will stop the adverse possession clock.

128
Q

Two main exceptions to Statute of Frauds requirement for land sale Ks?

A
  1. part performance: payment of all or part of purchase price;
129
Q

Implied Warranty of Fitness or Suitability?

A
  • Applies to defects in NEW CONSTRUCTION
  • In most jurisdictions, both the initial homeowner-purchaser and subsequent purchasers may recover damages. In other jurisdictions, only the original buyer can enforce this warranty.
  • Generally, suit for breach of this warranty must be brought within a reasonable time after discovery of the defect. (Some jurisdictions have a statutory time period.)
130
Q

Land Sale Ks:

Duty to disclose?

A
  • Most jurisdictions impose a duty on the seller to disclose to the buyer all known, physical material defects
    • Concerned with latent or hidden defects
    • Material defect must substantially effect the value of the home, health and safety of its occupants, or the desirability of the home
    • General disclaimers (e.g., “as is”) will not satisfy the seller’s duty to disclose.
131
Q

Seller’s Remedies on Breach by Buyer?

A
  1. Damages: Measure is the difference between the contract price and market price
  2. Rescission: Seller can sell the property to someone else
  3. Specific Performanc
132
Q

Buyer’s Remedies on Breach by Seller?

A
  1. Damages: Measure is the difference between contract price and market value on date of breach
    • If Seller breached in GF: can only recover out of pocket expenses
  2. Rescission: Returns payments to the buyer and cancels the contract
  3. Specific Performance
133
Q

Equitable Conversion and Risk of Loss?

A
  • Majority Rule: Buyer holds equitable title during the period between the execution of the K and the closing and delivery of the deed
    • Buyer responsible for any damage to the property that happens during that period
    • As holder of legal title, seller has a right to possess the property.
  • Minority: Place the risk of loss on Seller until the closing and delivery of deed
134
Q

Two kinds of mortgages:

A
  1. Purchase money mortgage: Person takes out a loan for the purpose of purchasing property
  2. Future advance mortgage: A line of credit used for home equity, construction, business, and commercial loans (often referred to as a “second mortgage”)
135
Q

Deed of trust?

A
  • Operates like a mortgage but uses a trustee to hold title for the benefit of the lender (beneficiary of the trust receiving the payments)
136
Q

Installment Land Contract?

A
  • Seller finances purchase; Seller retains title until Buyer makes final payment on installment plan
  • Traditionally, if Buyer breached (missed a payment), Seller kept installment payments made & property.
  • Now states try to assist defaulting buyers: (i) some treat installment contract as a MORTGAGE requiring Seller to foreclose; (ii) some give the buyer the equitable right of redemption; (iii) some allow the seller to retain ownership but require some LEVEL OF RESTITUTION for what’s been paid.

*

137
Q

Absolute Deed?

A
  • Mortgagor (borrower) transfers the deed to the property instead of conveying a security interest in exchange for the loan.
  • If this is a mortgage disguised as a sale, the borrower must prove a mortgage-like agreement by clear & convincing evidence, i.e. that there was an obligation created prior to or contemporaneously with the transfer.
  • Parol evidence is admissible to make this showing.
  • Statute of Frauds do not bar oral evidence about the agreement.
138
Q

Transfer by Mortgagor/Borrower:

Liability of mortgagor/borrower?

A
  • Mortgagor may transfer the property by deed (selling), by will, or by intestate succession. Mortgagor remains personally liable after the transfer unless:
    • Release by mortgagee/lender
    • Modification of transferee’s obligation by mortgagee/lender
  • Due-on-sale clause gives lender option to demand immediate full payment upon transfer - an acceleration clause that allows the lender to speed up the payment when the property is transferred.
  • (It can apply when property is sold, devised, or otherwise alienated.)
  • Due-on-encumbrance clause - acceleration when mortgagor obtains a second mortgage or otherwise encumbers the property.
139
Q

Liability of subsequent transferee:

Assumption of mortgage?

A
  • If the transferee assumes the mortgage, mortgagor/borrower is secondarily liable for the mortgage.
  • Both the original mortgagor and the transferee are liable upon default.
  • In most jurisdictions, the assumption agreement does not need to be written
140
Q

Liability of subsequent transferee:

Taking “subject to” mortgage?

A
  • Transferee is not personally liable upon default.
  • If the deed is silent or ambiguous as to liability, transferee/buyer is considered to have taken title subject to the mortgage.
141
Q

Transfer by Mortgagee/Lender?

A
  • The rule is that the mortgage follows the note.
  • If the mortgage is sold seperately, the transfer is either (i) void because the note is the evidence of the debt, or (ii) the note and mortgage are considered a single entity, thus the note follows the mortgage.
142
Q

Pre-Foreclosure Rights and Duties

When can the mortgagee/lender take possession:

Lien theory state

A

Mortgagee/lender cannot take possession prior to foreclosure because lender has a lien until foreclosure is complete. Mortgagor is owner up until foreclosure.

143
Q

Pre-Foreclosure Rights and Duties:

Waste?

A
  • Homeowner cannot commit waste that will impair the lender’s security interest.
  • Affirmative waste, voluntary waste, and permissive waste are more of a concern than ameliorative waste (improvements).
144
Q
A
145
Q

Equity of redemption?

A
  • A common law right held by the mortgagor to RECLAIM TITLE and prevent foreclosure upon the full payment of the debt.
  • Mortgagor must exercise the right of equity of redemption BEFORE the foreclosure sale.
  • Deed in lieu of foreclosure - Rather than face foreclosure, mortgagor can convey the property to the lender in exchange for releasing her from any outstanding debt.
  • “Clogging” the equity of redemption - Mortgagor may waive the right to redeem in exchange for valuable consideration. Courts regularly try to stop these exchanges because the goal is to prevent clogging the equity of redemption; don’t want homeowners to give up their equity of redemption. The goal is to allow homeowners to satisfy their debt, if possible, before the foreclosure.
146
Q

Foreclosure?

A
  • forced sale of an asset to pay off a debt
  • Mortgagee must give notice before foreclosing.
  • 2 common methods of foreclosure:
    • Judicial Sale: Sale under the supervision of a court
    • Power of Sale (Private Sale): Sale is held by the lender
147
Q

Priorities:

General Rule?

A

Interests acquired *before_ the interest that is being foreclosed (_senior interests_) survive the foreclosure. Interests acquired _after_ the interest that is being foreclosed (_junior interests_) are extinguished by the foreclosure. Surviving debts are satisfied _chronologically * (“first in time rule”).

148
Q

Priorities:

First in Time Exceptions?

A
  1. Purchase-money mortgage exception - Has priority over all mortgages, even those earlier in time. (Lender who gave the money to buy the house has the top priority.)
  2. Recording act exception - A senior mortgage may sometimes not get recorded. A junior mortgage that satisfies the requirements of the state recording act may take priority over the unrecorded senior mortgage, if it satisfies the elements of the state’s recording act.
  3. Subordination agreement between mortgagees - A senior mortgagee can agree to subordinate its interest to a junior interest.
  4. Mortgage modifications - A senior mortgagee who enters into an agreement with the mortgagor/landowner to modify the mortgage by making it more burdensome subordinates its interest, but only as to the modification. The original mortgage will otherwise remain superior.
  5. Future-advances mortgages - Line of credit.
149
Q

Effects of Foreclosure?

A

Foreclosure sale eliminates the mortgagor’s interest in the property.

  • Exception: Statutory redemption - Some states allow the mortgagor to redeem the property even after the foreclosure sale. A statute enables the homeowner to *effectively nullify * the foreclosure. It ends the purchaser’s title and restores title to the homeowner.
  • Absent statutory redemption, the purchaser of property at a foreclosure sale takes the property free and clear of any junior mortgage and subject to any senior mortgage.
150
Q

______________ transfer of a deed is not required.

A

Physical

  • Delivery is determined by the grantor’s present intent to transfer the property
151
Q

Deeds:

_______\_ is generally presumed provided

the gift is for value.

A

Acceptance

  • Ex. : Garrett conveys a deed to Blackacre to Barbara. Moments later, Barbara changes her mind about Blackacre and says she doesn’t want it. Barbara has accepted the deed. If she doesn’t want the property anymore, she’ll have to execute a new deed back to Garrett
152
Q

Scope of Recording Acts:

Recording statutes do not cover interests created by?

A

operation of law, i.e., adverse possession

gift

intestacy

devise (will)

153
Q

DELIVERY AND RECORDING OF DEED:

3 kinds of notice?

A
  1. Actual notice - when the subsequent grantee has real, personal knowledge of a prior interest
  2. Inquiry notice (i.e., record notice) - when prior interest is recorded
  3. Constructive notice - when a reasonable investigation would have disclosed the existence of prior claims
154
Q

Deed:

Shelter Rule?

A

A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor.

155
Q

Estoppel by Deed?

A
  • Arises when a grantor conveys land the grantor does not own
  • If a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that he didn’t have title when he made the original conveyance.
156
Q

Trespassers:

IMPROVEMENTS/Ameliorate Waste?

A

Modern/majority rule is that trespassers can remove an improvement, or at least recover the value added to the property, so long as they acted in GOOD FAITH

157
Q

WILLS, TRUSTS, AND RESTRAINTS ON ALIENATION:

RESIDUARY?

A

The balance of the estate after all the general and specific gifts have been made

158
Q

Special Problems in Wills:

Ademption (by Extinction)?

EXCEPTION?

A

Ademption (by Extinction): Devise of property that fails (or is “adeemed”) because it is no longer in the testator’s estate at the testator’s death; e.g., the testator sold it or destroyed it during life

  • If a gift is adeemed, the beneficiary (i.e., the recipient) gets NOTHING
  • Exception—Ademption by Satisfaction: If the testator gives the property to the beneficiary while the testator is alive, the gift is adeemed by satisfaction, i.e., the beneficiary TAKES THE GIFT during the testator’s lifetime.
159
Q

Special Problems in Wills:

LAPSE?

A

A devise of property can also fail (lapse) if the beneficiary dies BEFORE the testator dies, and no alternate beneficiary is named in the will.

  • Traditional Rule: A lapsed gift becomes part of the RESIDUARY gift.
160
Q

Special Problems in Wills:

ANTI-LAPSE STATUTES?

A

All jurisdictions have statutes that are designed to prevent gifts from lapsing. These statutes apply when two elements are satisfied:

  1. If lapsed gift was made to a party specified in the statute (almost always a FAMILY MEMBER) and
  2. Deceased beneficiary survived by ISSUE (i.e., children, grandchildren)

If both criteria are met, the gift goes to issue & does not lapse.

161
Q

TRUSTS:

Bifurcated transfer: Trustee holds _________ title, while the beneficiary holds _________ title. The beneficiary’s sole job is to receive payment/property from the trust. The beneficiary can enforce the terms of the trust.

A

LEGAL

EQUITABLE

162
Q

AFFIRMATIVE EASEMENT?

NEGATIVE EASEMENT?

A

Affirmative easement gives the holder the right to DO SOMETHING on someone else’s property

Negative easement gives the holder the right to PREVENT someone from doing something on her land

  • A negative easement must be express; it cannot be created by implication.
163
Q

Easement by Reservation?

A

created when a grantor conveys land but reserves an easement right in the land for the grantor’s use and benefit

164
Q

Four kinds of Implied Easements?

A
  • Easement by necessity
  • Easement by implication (easement by prior use)
  • Easement by prescription
  • Easement by estoppel
165
Q

REAL COVENANTS?

A

promise concerning the use of the land that runs to successors to the promise

  • When an agreement binds a successor, it “runs with the land”
  • Ex: Oliver conveys a neighboring property to Caleb. In the deed, Oliver & Caleb agree to paint their houses white. This agreement is governed by contract law. With: Caleb later conveys his property to Gertrude, who intends to paint her house yellow. Contract law doesn’t answer the question of whether Oliver can enforce the agreement against Gertrude, but property law does.
166
Q

Can an easement be terminated by non-use alone?

A

NO

  • Abandonment requires:
  1. non-use of an easement &
  2. words & actions demonstrating INTENT to abandon
167
Q

Gift of Land is valid as long as the grantor does not what?

A
  • A transfer by gift is valid so long as the grantor does not retain any property rights.
168
Q

Is a life tenant responsible for property tax?

A

YES

  • Property taxes are the responsibility of the life tenant. The holder of a future interest who pays the taxes may seek reimbursement from the life tenant.
169
Q

If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory, such amount ________ enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage.

A

If an original mortgagee loans an additional amount to a mortgagor that is optional rather than obligatory such amount may not*** enjoy priority over a second mortgage if the original mortgagee has notice of the second mortgage. ***This is true even though the mortgage by its terms serves as security for future advances.

170
Q

Upon default of an obligation, a mortgagee may foreclose on any and all parcels of real property of the mortgagor that serve as security for the obligation. However, junior security interests with respect to some of those parcels of real property, may petition the court for protection of their interests under what doctrine?

A

Marshaling of Assets

  • Under the doctrine, the holder of a senior security interest must first proceed against the property on which there are not any junior security interests, and then against the property on which the junior interest was more recently created, before proceeding against property on which the junior interest was more remotely created.
171
Q

A mortgagor has a duty to _______ with respect to the mortgaged property and the mortgagee’s security interest in that property.

A

A mortgagor has a duty to not commit waste with respect to the mortgaged property and the mortgagee’s security interest in that property.

  • Can’t impair mortgagee’s security interest with such waste
172
Q

A residential lease generally cannot place the duty to ________ on the tenant, and a provision to that effect is void.

A

A residential lease generally cannot place the duty to MAKE REPAIRS on the tenant, and a provision to that effect is void.

  • This would certainly be true if the need for the repairs did not arise from the tenant’s acts and the tenant promptly notified the landlord of the need for such repairs, as is the case here.

Bar Exam (13 decks)

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