Property Flashcards
Ways to Transfer Property
- Sale
- Gift
- Devise
- Intestate Succession
Present Interests in Land
- Fee Simple
- Defeasible Fees
- Life Estate
- Fee Tail
Fee Simple
Capable of lasting forever
Created by “and his heirs” or ambiguous language
- don’t be fooled by words of intent or purpose
Defeasible Fees
May be terminated by the occurrence of an event, but capable of lasting forever
- Fee Simple Determinable
- Fee Simple Subject to Condition Subsequent
- Fee Simple Subject to Executory Interest
Fee Simple Determinable
Limited by specific durational language
Terminates automatically
Future Interest: Possibility of Reverter (held by grantor)
Fee Simple Subject to Condition Subsequent
Limited by specific conditional language
- Language must suggest that the grantor must exercise a right in order to take possession
Future Interest: Right of Reentry (held by grantor)
Fee Simple Subject to Executory Interest
Will end upon the happening of an event and the future interest will vest in a third party (someone other than the grantor)
Future Interest: Executory Interest
Executory Interest
Future interest that will divest an earlier interest
Life Estate
Present estate that is limited by a life
Created by “for life”
- if ambiguous, look for the grantor’s intent to create an estate that will end upon the death of a measuring life
Ends when the measuring life dies
Future interests -
Reversion (in grantor)
Remainder (in third party)
Three Kinds of Waste
- Affirmative
- Permissive
- Ameliorative
Affirmative Waste
Waste caused by voluntary conduct, which causes a decrease in value
Permissive Waste
Waste caused by neglect toward the property, which causes a decrease in value
Ameliorative Waste
Special situation where person in possession changes the use of the property and actually increases the value of the property
Doctrine of Waste Situations
- Future vs. Present Interest Holder
- Landlord vs. Tenant
- Co-tenant out of possession vs. Tenant in possession
- Mortgagee vs. Mortgagor
Concurrent Estates
Ownership or possession of real property by two or more persons simultaneously
Basic Rule: Concurrent owners each have right to use/possess the whole property (unless contracted otherwise)
Kinds of Concurrent Estates
- Tenancy in Common;
- Joint Tenancy; and
- Tenancy by the Entirety
Tenancy in Common
Default concurrent interest
- No right of survivorship
- Each co-tenant can transfer the property freely at death as well as during life
Joint Tenancy
Defining characteristic is the right of survivorship, whereby the surviving joint tenant(s) automatically take the deceased tenant’s interest
Grantor must make clear expression of intent; PLUS
survivorship language
Four unities must be in place
Four Unities
[PITT]
1) Possession: every joint tenant must have equal right to posses the whole of the property
2) Interest: joint tenants must have an equal share of the same type of interest
3) Time: joint tenants must receive their interests at the same time
4) Title: joint tenants must receive their interests in the same instrument of title
Severance
If any of the unities are severed, then the joint tenancy is terminated and terns into a tenancy in common with respect to the transferred share
Severance: Inter vivos transfer
A transfer during life will destroy the right of survivorship and convert the estate into a tenancy in common
Severance: Mortgages
Lien Theory (Majority): Mortgage is a lien and does not destroy the joint tenancy
Title Theory (Minority): Mortgage severs title and the tenancy between the joint tenants and creditor is converted into a tenancy in common
Severance: Leases
Split in jurisdictions
Some hold that a lease severs the joint tenancy
Others treat the lease as a temporary suspension of the joint tenancy
Tenancy by the Entirety
Joint Tenancy between married spouses
- Fifth unity is marriage
- right of survivorship
Tenants by the entirely cannot alienate or encumber their shares without the consent of their spouse
Rights and Obligations of Concurrent Owners: Possession and Use
Each co-tenant has right to possess all of the property, regardless of that co-tenant’s share and regardless of the type of co-tenancy
Exception: When co-tenants have entered into an agreement to the contrary
Ouster
When the co-tenant in possession denies another co-tenant access to the property, the ousted tenant can:
- get an injunction granting access to the property, and/or
- recover damages for the value of the use while the co-tenant was unable to access the property
Concurrent Estates: Third-Party Rent
Rent received from a third party’s possession of the property, minus operating expenses, are divided based on ownership interests of each co-tenant
Concurrent Estates: Operating Expenses
Necessary charges, such as taxes or mortgage interest payments
- Divided based ownership interests of each co-tenant
- A co-tenant can collect contribution from the other co-tenants for payments in excess of her share of the operating expenses
Concurrent Estates: Repairs
There is no right to reimbursement from co-tenants for necessary repairs
The co-tenant who makes the repairs can get credit in a partition action
Concurrent Estates: Improvements
There is no right to reimbursement from co-tenants for improvements
The co-tenant who makes the improvements can get credit in a partition action
Partition
Equitable remedy available to all holders of a tenancy in common or joint tenancy
- unilateral right
Partition in Kind: physical division; preferred by courts
Partition by Sale: Court will order a partition by sale if the physical partition is:
- Not practical; or
- It is not fair to all parties
Proceeds are divided among the co-tenants based on their ownership interests
Agreement Not to Partition
Co-tenants can agree not to partition. Enforceable, provided:
- Agreement is clear; and
- Time limitation is reasonable
Springing vs. Shifting Executory Interest
Springing: Divests the grantor
Shifting: Divests the prior grantee
Vested Remainder
Interest that is:
1) Given to an ascertained grantee; and
2) Not subject to a condition precedent
Vested Remainder Subject to Open
- Vested Remainder in a class gift; and
- Full class membership is unknown
Rule of Convenience
Prevents classifying an interest as Vested Subject to Open and therefore avoids RAP.
If the 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
Doctrine of Worthier Title
Prevents against remainders in grantor’s heirs
- creates a presumption in a reversion to the grantor
Rule in Shelley’s Case
Prevents against remainders in a grantee’s heirs
- uses the doctrine of merger to create a fee simple
Relevant Life
Person who affects vesting, usually mentioned or implied by the grant
Validating Life
Person who tells us whether or not the interest vests within the perpetuities period (lifetime plus 21 years)
- must have been alive when the interests were created
- can validate her own interest
- if no validating life, then interest is no good and we strike it from the grant
Rule Against Perpetuities
“No interest is good unless it must vest, if at all, not later than twenty-one years after the death of some life in being at the creation of the interest.”
RAP and Class Gifts
If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class - Can be saved by Rule of Convenience
Exceptions to the Class Gift Rule
1) Transfers of a specific dollar amount to each class member; and
2) Transfers to a subclass that vests at a specific time
RAP Exceptions
1) RAP does not apply to a gift from one charity to another charity
2) RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property
Lease
Creates both a contract interest and a property interest
Types of Estates that Govern the Landlord-Tenant Relationship
1) Tenancy for Years
2) Periodic Tenancy
3) Tenancy At Will
4) Tenancy at Sufferance
Tenancy for Years
Measured by a fixed an ascertainable amount of time
Created by an agreement by the landlord and tenant
- must demonstrate intent
Terminates automatically upon the expiration of the term, or before the term is over when the tenant surrenders the lease OR the tenant or landlord commits a material breach of the lease.
Periodic Tenancy
Estate that is repetitive and ongoing for a set period of time
Created through the intent of the parties to create a periodic tenancy, either expressly or impliedly
Renews automatically until proper notice is given
- Proper notice means the terminating party gives notice before the start of what will be the last term
- Notice is effective the last day of the period
Tenancy at Will
May be terminated by either landlord or tenant at any time for any reason
Created by express agreement or implication
No notice to terminate
- if agreement gives only the landlord the right to terminate then the tenant also has the right to terminate
- if the agreement gives only the tenant the right to terminate at will, the landlord is not given the right to terminate at will
Death by either landlord or tenant terminates the tenancy
Tenancy at Sufferance
Created when a tenant holds over after the lease has ended
- Terms of the prior lease control
Termination:
- tenant voluntarily leaves
- landlord evicts
- landlord re-rents to the tenant
Tenant Duties
- Pay Rent
2. Avoid Waste
Duty to Pay Rent
Arises out of contractual relationship between the landlord and tenant
Duty suspended when:
1) premises are destroyed, so long as the tenant didn’t cause the damage
2) landlord completely or partially evicts the tenant
3) landlord materially breaches the lease
- Implied Covenant of Quiet Enjoyment
- Implied Warranty of Habitability
Implied Warranty of Quiet Enjoyment
The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted
Constructive Eviction
1) Premises were unusable for their intended purposes;
2) Tenant notifies landlord of the problem;
3) Landlord does not correct the problem; and
4) The tenant vacates the premises after a reasonable amount of time has passed
Implied Warranty of Habitability
The landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten tenant health and safety
- tenant cannot waive
- landlord’s failure to comply with applicable housing codes constitutes a breach
- applies to residential properties, usually multi-family building
Breach of IWH
If premises are not habitable, tenant may:
- Refuse to pay rent;
- Remedy the defect and offset costs against the rent; or
- Defend against eviction
To withhold rent, tenant must:
1) notify the landlord of the problem; and
2) give the landlord a reasonable opportunity to correct the problem
Tenant Duty to Avoid Waste
- the duty to avoid waste is a background rule; does not have to be expressed
- Tenant must not commit affirmative or permissive waste
Tenant may make changes to the property that increases the property’s value, but landlords usually require permission before a tenant can make the change
Duty to Repair
Residential Lease: Landlord is presumed to be responsible for repairs. Tenant must notify the landlord of any needed repairs
- landlord is not responsible to make repairs caused by the tenant’s action
Commercial Lease: landlord can place the duty of repair on the tenant
Duty to Mitigate Damages
Majority Rule: landlord must make reasonable efforts to re-enter the property
- if the landlord does not make diligent effort to mitigate, tenant is relieved from obligation to continue paying rent
- if the landlord does seek to mitigate, landlord is entitled to the difference between the original rent and the rent received
- landlord does not have to accept and unacceptable replacement tenant
Minority: Landlord does not have to mitigate damages
- more common in commercial leases
Increasing Rent on Holdover
If landlord continues relationship with a holdover tenant, the rent under the old lease is the amount due, unless the landlord had informed the tenant of an increase in rent prior to the expiration of the old lease.
Duty to Deliver Possession
Majority: The landlord must deliver actual possession of the leasehold premises (physical possession)
Minority: Landlord only required to deliver legal possession
Conditions of Leased Premises
Landlord cannot deny the tenant quiet enjoyment
Landlord must control:
- Common areas (lobby, hallway, laundry room)
- Nuisance-like behavior of other tenants
Does not have to control:
- Off-premises actions of third parties that are beyond the landlord’s control
Landlord-Tenant Tort Liability
Tenant: owes a duty of care to invitees, licensees, and foreseeable trespasser
Landlord: liable to invitees, licensees, and foreseeable trespassers
- in negligence for latent or hidden defects about which the tenant has not been warned
- for faulty repairs completed by the landlord negligently
- in negligence for injuries in common areas
Assignment
A complete transfer of the tenant’s remaining term
Sublease
A transfer for less than the entire duration of the lease
Assignment/Sublease Rent
In an assignment, the landlord can collect rent from:
- Original tenant (privity of contract); or
- Subsequent tenant (privity of estate)
In a sublease, the landlord can collect rent from:
- The original tenant (privity of contract and estate)
Can the landlord deny permission to a transfer of the lease?
Majority Rule: A landlord may deny permission to a transfer only for a commercially reasonable reason
Minority Rule: A landlord can deny permission at her discretion (for any or no reason at all)
Note: A landlord does not need the tenant’s permission before transferring her interest. The new landlord is bound by the terms of the existing lease.
Fair Housing and Discrimination Statutes
Prohibits:
- Refusing to rent
- Requiring different rents
- Falsely denying that a unit is available
- Providing different services to facilities (unless disabled)
- Stating a discriminatory preference in an advertisement
On the basis of race, color, religion, national origin, sex, disability, and familial status
Primary focus on multi-family residential houseing
Adverse Possession
Allows a person in unlawful possession to acquire good title to a piece of property. Until the person acquires good title, the person is a trespasser
Elements of Adverse Possession
1) Continuous for statutory period
2) Open and Notorious
3) Hostile
4) Exclusive
AP: Continuous
Requirement is not literal. Seasonal or infrequent use may suffice if the use is consistent with the type of property being possessed
- True owner can interrupt period by ejecting the AP
If the adverse possessor cannot satisfy the continuity requirement on her own, she can tack on a predecessor’s time on the property to satisfy the SOL so long as the AP and predecessor are in privity
AP and Disabled True Owner
The SOL will not run against a true owner who has a disability at the time the adverse possession begins
- Insanity
- Infancy
- Imprisonment
AP: Open and Notorious
Use must be such that it would put a reasonable true owner on notice of the adverse use
AP: Hostile
Adverse to owner’s interest
Majority: does not inquire into state of mind
Minority:
Good Faith - AP must think the land is unowned or that she is the rightful owner
Bad Faith - AP based on aggressive trespass
AP: Exclusive
An AP cannot share possession with the true owner
Two APs that both acquire title acquire title as tenants in common
Scope of Possession
Traces the Legal Boundaries of the Property
If the AP enders under color of title from an invalid instrument and occupies a portion of the property described in the instrument, the AP is in actual possession of the occupied land and constructive possession of the remaining land described int he deed
Stages of Land Sale Contracts
1) Contract Stage
- any liability must be based on a contract provision
2) Deed Stage
- any liability must be based on a deed warranty
Doctrine of Merger: covenants under the contract are merged into the deed and therefore can’t be enforced unless the covenant is also in the deed
SOF
Land sale contracts are subject to the SOF
Requires:
1) Writing
2) Signed by the party to be charged
3) Essential terms (parties, description of the property, price and payment info)
Exceptions to SOF
- Part Performance
- Detrimental Reliance
Part Performance
Partial performance by either the seller or the buyer is treated as evidence that the contract existed
- Payment of all or part of the purchase price;
- Possession by the purchaser; or
- Improvements by the purchaser
Detrimental Reliance
An estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract is not enforced
What is marketable title?
Title that is free from an unreasonable risk of litigation
- Standard of reasonable buyer
Every land sale contract includes an implied covenant of marketable title
Defects that render title unmarketable:
- Title acquired by adverse possession that hasn’t been quieted
- Private encumbrances
- Violation of a zoning ordinance
Implied Warranty of Fitness or Suitability
In most jurisdictions, both the initial homeowner-purchaser and subsequent purchasers may recover damage
- suit must be brought within a reasonable time after discovery of the
Applies to defects in new construction
Duty to Disclose Defects
Most jurisdiction impose a duty on the seller to disclose to the buyer all known, physical, material defects
Materially defect must substantially affect the value of the home, health and safety of its occupants, or the desirability of the home
- general disclaimers will not satisfy duty to disclose
Seller’s Remedies on Breach by Buyer
- Damages: difference between contract price and market price (profit)
- Rescission: can sell property to someone else
- Specific Performance
Buyer’s Remedies on Breach by Seller
- Damages: difference between contract price and market value on date of breach (only out-of-pocket expenses if breach was in good faith)
- Rescission: Returns payments to he buyer and cancels the contract
- Specific Performance
Equitable Conversion and Risk of Loss
Majority Rule: The buyer holds equitable title during the period between he execution of the contract and the delivery of the deed
- buyer responsible for damage during that time
- seller has legal title and right to possess
Minority Rule: Places risk of loss on the seller until closing and deliver of deed
What is a mortgage?
A security device used to secure repayment of a debt
Note: promise to repay the debt
Mortgage: Instrument that provides security to the note
Purchase Money Mortgage
Person takes out a loan for the purpose of purchasing property
Future Advance Mortgage
A line of credit used for home equity, construction, business, and commercial loans
Alternatives to Mortgages
- Deed of Trust
- Installment Land Contract
- Absolute Deed
- Conditional Sale and Repurchase
Liability of Transferring Mortgagor
Mortgagor may transfer the property by deed, by will, or by intestate succession.
Mortgagor remains personally liable after the transfer unless:
- Release by mortgagee
- Modification of transferee’s obligation by mortgagee
Due-on-Sale Clause
Gives lender the 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)
Due-on-Encumbrance Clause
Acceleration when mortgagor obtains a second mortgage or otherwise encumbers the property
Liability of Subsequent Transferee
Assumption of Mortgage
- if the transferee assumes the mortgage, mortgagor is secondarily liable
- both original mortgagor and the transferree are liable upon default (no writing required in most jurisdictions)
“Subject to” Mortgage
- Transferee is not personally liable upon default
- default if deed is silent or ambiguous as to liability
Transfer by Mortgagee
The mortgage follows the note
A transfer of a mortgage but not the note, the transfer is either:
- Void because the note is the evidence of the debt; or
- the note and mortgage are considered a single entity , thus the note follows the mortgage
When can the mortgagee/lender take possession?
Lien Theory State: mortgagor cannot take possession until foreclosure
Title Theory State: Lender technically has the right, as the holder of title, to possess the property at any time
Intermediate Title Theory State (Minority): Mortgagor retains title until default, at which point the lender can take possession
Equity of Redemption
A common law right held by the mortgagor to reclaim title and prevent foreclosure upon the full payment of the debt
- must exercise 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
Foreclosure Methods
A forced sale of an asset to pay off a debt
- Judicial Sale: sale under the supervision of a court
- Power of Sale (Private Sale): sale is held by the mortgagee/lender
Proceeds used to pay off the debt and excess proceeds will be used to satisfy other creditors
Is the mortgagor responsible if the sale produces less than the mortgagor owes?
Yes, in that situation, the court can issue a deficiency judgment for the remaining balance
Foreclosure Priorities
General Rule: 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.
Exceptions to Foreclosure Priorities
- Purchase-money mortgage exceptions (priority over all mortgages)
- Recording act exceptions
- Subordination agreement between mortgagees
- Mortgage modification
- Future-advance mortgages
Effects of Foreclosure
Eliminates the mortgagor’s interest in the property
EXCEPTION: Statutory Redemption
Deed Basics
For a deed to be valid, it must be delivered and accepted.
The controlling question is whether the grantor had present intent to transfer
- Physical transfer is not required
- Grantor can make a proper delivery to an agent
- Acceptance is generally presumed provided the gift is for value
Contents of a Deed
Must:
- identify the parties
- must be signed by the grantor
- include words that evidence a present intent to transfer
- include a sufficient description of the property
What does it mean to record?
Publicly register
Puts the world on notice that you own the property
Common-Law Recording Rule
A deed does not have to be recorded to be valid
First in time, first in right
- Every state modifies by statute
What interests are covered by recording acts?
- Deeds
- Mortgages
- Lease
- Options
- Judgments affecting title
- Other instruments creating an interest in land, such as easements or covenants
Kinds of Notice
1) Actual: when subsequent grantee has real, personal knowledge of a prior interest
2) Constructive: when prior interest is recorded
3) Inquiry Notice: when a reasonable investigation would have disclosed the existence of prior claims
Race Statutes
First to record wins, even if the subsequent purchaser had notice of prior, unrecorded conveyance
Notice Statutes
Subsequent purchaser has good title if she buts without notice of a prior, unrecorded conveyance
Race-Notice
Subsequent purchaser has good title if:
1) purchase without notice of a prior unrecorded conveyance; and
2) they record first
Shelter Rule
A person who takes from a bona fide purchaser protected by the recording act has the same rights as grantor
Estoppel by Deed
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
Kinds of Deeds
1) General Warranty
2) Specialty Warranty
3) Quit-claim
General Warranty Deed
Provides the greatest amount of title protection
Grantor warrants against all defects, even if the grantor didn’t cause the defects
Present Covenants
- Covenant of Seisen
- Covenant of the Right to Convey
- Covenant Against Encumbrances
Covenant of Seisen
Warrants that the deed describes the land in question
Covenant of the Right of Convey
Warrants that the grantor has the right to convey the property
Covenant Against Encumbrances
Warrants that there are no undisclosed encumbrances on the property that could limit its value
Future Covenants
- Covenant of Quiet Enjoyment
- Covenant of Warranty
- Covenant of Further Assurances
Covenant of Quiet Enjoyment
Grantor promises to defend against future challenges to the grantee’s title to the property
Covenant of Warranty
Grantor promises to defend against future assertions of encroachment
Covenant of Further Assurances
Grantor promises to fix future title problems
Special Warranty Deed
The grantor warrants against defects caused by the grantor
Quitclaim Deed
The grantor makes no covenants as to the health of the title
- Least amount of title protections
Breach of Deed Covenants
Present Covenants: Breach occurs at the time of conveyance
Future Covenants: Breach occurs after the conveyance, once there is interference with possession
Remedies: Covenant Against Encumbrances
Lesser of the difference between the title with our without the defect, or the cost of removing the encumbrance
Remedies: Covenants of Enjoyment and Warranty
Lesser of the purchase price or the cost of defending title that is in fact defective
Remedies: Covenants of Seisin, Right to Convey, an Further Assurances
Lesser of the purchase price or the cost of perfecting title
Fixtures
Tangible personal property that is attached to real property in a manner that is treated as part of the real property
Making Improvements
A fee simple owner of property is free to make improvements to the property, including fixtures, subject to governmental land use regulations
Holders of life estates or tenants are limited by the doctrine of waste
Removal of Fixtures
The buyer of real property is generally entitled to the chattel unless the seller reserves int he contract the right to keep the chattel.
Presumption that life tenants and tenants can remove fixtures unless doing so would permanently damage the property
Trespassers: formerly could never remove any fixtures, can now remove or recover value added to the property so long as they acted in good faith
What happens if a decedent dies without a will and without heirs?
The decedent’s property escheats to the state
Specific Gift
A devise of property that can be distinguished from the rest of the testator’s estate
General Gift
A devise of personal property that will be satisfied from the general assets of the estate
Demonstrative Gift
A general devise that is satisfied from a particular source
Residuary Gift
The balance of the estate after all the general and specific gifts have been made
Ademption
Devise of property that fails because it is no longer in the testator’s estate at the testator’s death
- If a gift is adeemed, the beneficiary gets nothing
Ademption By Satisfaction
When property is no longer in the estate because the testator gives the property to the beneficiary while the testator is still alive
Lapse
When the beneficiary dies before the testator dies and no alternative beneficiary is named in the will, the devise is said to have lapsed
- Becomes part of the residuary in the absence of an anti-lapse statute
Anti-Lapse Statutes
Designed to prevent gifts from lapsing. Apply if:
- The lapsed gift was made to a party specified in the statute; and
- The deceased beneficiary is survived by issue
Trust
Device for managing property whereby one person (the trustee) owns property for the benefit of another person
Restraints on Alienation
A restriction on transferring property
Absolute restraint on alienation is void
Partial restraint is valid if it is for a limited time
- if restraint is valid, any attempt to alienate the property will be null and void
- if the restraint is invalid, the restraint is rejected and the property can be transferred in violation of the restraint
What is an easement?
Right held by one person to make use of another person’s land
- Servient Estate: land burdened by the easement
- Dominant Estate: land benefitted by the easement
Affirmative Easement
Gives the holder the right to do something on someone else’s property
Negative Easement
Gives the holder a right to prevent someone from doing something on their land
Easement Appurtenant
Tied to the land
Easement in Gross
Benefits the holder personally
Express Easement
Subject to the SOF so it must be in writing
Created by grant or reservation (where grantor conveys land but reserves an easement right in the land for the grantor’s use or benefit)
Types of Implied Easements
- Easement by Necessity
- Easement by Implication
- Easement by Prescription
- Easement by Estoppel
Easement by Necessity
Created only when property is virtually useless
1) Dominant and servient estates were owned by one person; and
2) Necessity arose when the estates were severed into separate estates, and at that severance, one of the properties became virtually useless without an easement
Ends when necessity ends
Easement by Implication
Created by an existing use on a property
1) A large estate owned by one owner;
2) Before division, the owner of the large tract uses the land as if there is an easement on it (quasi-easement);
3) Use must be continuous and apparent at the time of severance;
4) Use must be reasonably necessary to dominant estate’s use and enjoyment
Implied Easement by Prescription
Similar to adverse possession
- Continuous use for statutory period
- Open and notorious
- Hostile
Exclusivity not a requirement
Easement by Estoppel
1) Starts with permissive use;
2) The second neighbor relies on the first neighbor’s promise
3) The first neighbor withdraws the permission
If reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, in effect creating an easement
Scope of Easement
Express: determined by terms
Implied: determined by the nature of the prior use or necessity
Who has the duty to maintain the property subject to an easement?
The owner of the easement unless agreed otherwise by the parties
Terminating an Easement
- Release
- Merger
- Abandonment
- Prescription
- Sale to a Bona Fide Purchaser
- Estoppel
- End of Necessity
Easement Release
The holder of the easement expressly releases it.
The release must be in writing (SOF)
Easement Merger
An easement is terminated if the owner of the easement acquires fee title to the underlying estate.
The easement merges into the title.
Easement Abandonment
The owner acts in an affirmative way that shows a clear intent to relinquish the right
Usually need non-use plus an act demonstrating intent to abandon
Loss by Prescription
Holder fails to protect easement against a trespasser for the statutory period
Loss of Easement by Estoppel
Servient owner changes position to his detriment in reliance on statements/conduct of the easement holder that the easement is abandoned
Profit
Right to enter another’s land and remove natural resources
- Operate similarly to easements, but profits cannot be created by necessity
License
A revocable permission to use another’s land
Real Covenant
A promise concerning the use of the land that runs to successors to the promise
Requirements for Requirements to Run
- Writing
- Intent
- Touch and Concern
- Notice
- Privity
Touch and Concern
Requirement for covenant to run
Benefit or burden of the covenant must affect both the promisee and promisor as owners of the land
Horizontal Privity
To run the burden to a successor, the original privities to the promise must have been in privity of estate, where the estate and covenant are contained in the same instrument
Vertical Privity
To run the burden: successor must take original party’s entire interest
To run a benefit: successor need only take an interest that is carved out of the original party’s estate
Remedy for Breach of Real Covenant
Damages
Equitable Servitude
1) Writing
2) Intent to run with the land
3) Touch and concern the land
4) Notice
- No privity requirement
Remedy is injunctive relief
Implied Reciprocal Servitude
- Intent to create a covenant on all plots in the subdivision
- Reciprocal (befits and burdens each and every parcel)
- Must be negative (restriction on owner’s use)
- Successor on notice
- Common plan or scheme
Changed Circumstances Doctrine
Where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place
Riparian Rights
Landowners who border a waterway own the right to reasonable use of the waterway
Prior Appropriation
First to make productive use of the water, regardless of where their land is located, has rights to the water
Lateral Support Rights
A landowner is liable in negligence when his actions caused a subsidence on a neighbor’s land and the neighbor’s surface buildings contributed to the subsidence
Strict liability when neighbor’s surface buildings do not contribute
Subjacent Support
Owner of the mineral rights is strictly liable for failure to support the land and any buildings on it that existed when the rights were created
Liable for negligence for any buildings after the rights were created
Zoning
State and local government may regulate the use of land through zoning laws
- for protection and safety of the community
Exemptions and Variances
An owner may request a variance from the zoning ordinance of the owner can demonstrate that the ordinance imposes undue hardship and that the variance is not contrary to public welfare
Non-Conforming Use
A use that lawfully existed before the zoning ordinance existed but violates it once it was enacted.
Most jurisdictions permit such a use to continue, but prohibit expansion of non-conforming uses
What happens when a developer is in the middle of a building project when the zoning ordinance is changed?
The doctrine of vested rights controls
The use is acceptable if the project was started in good faith
Eminent Domain
Federal and state governments can take property through the eminent domain party.
- Receives title to the property
- Pays the landowner just compensation
Private Nuisance
A substantial and unreasonable interference with another individual’s use or enjoyment of his property
Substantial: One that would be offensive, annoying, or inconvenient to an average person in the community
Unreasonable: The injury outweighs the usefulness of the defendant’s actions
Public Nuisance
Unreasonable interference with the health, safety, or property rights of the community
- plaintiff must show she suffered a different kind of harm than the rest of the community
