Property Flashcards
Fee simple absolute: Language toFee simple absolute:F create
“to A and his heirs”; “to A”
Fee simple absolute: Duration
Absolute ownership of potentially infinite duration
Fee simple absolute: transferability
Devisable, descendible, alienable
Fee simple absolute: future interest
None
Fee Tail: Language to create
“To A and the heirs of his body”
Fee Tail: Duration
Lasts only as long as there are lineal blood descendants of grantee
Fee Tail: transferability
Passes automatically to grantee’s lineal descendants
Fee Tail: Future interest
Reversion (if held by grantor); Remainder (if held by third party)
Fee simple determinable: language to create
“To A so long as…”; “to A until…’; “to A while…”
Fee simple determinable: Duration
Potentially infinite, so long as event does not occur
Fee simple determinable: Transferability
Alienable, devisable, descendible, subject to condition
Fee simple determinable: Future interest
Possibility of reverter (held by grantor); if state condition is violated forfeiture is automatic
Fee simple subject to condition subsequent: language to create
“to A, but if X event happens, grantor reserves the right to reenter and retake” Must carve out right of reentry.
Fee simple subject to condition subsequent: Duration
Potentially infinite so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination
Fee simple subject to condition subsequent: Transferability
Alienable, devisiable, descendible, subject to condition
Fee simple subject to condition subsequent: Future interest
Right of entry/power of termination (held by grantor); Called right of reacquisition in NY; Does not automatically terminate, must be cut short at the grantor’s option if the stated condition occurs
Fee simple subject to an executory limitation: Language to create
“To A, but if X event occurs, then to B”
Fee simple subject to an executory limitation: Duration
potentially infinite so long as stated contingency does not occur
Fee simple subject to an executory limitation: Transferability
Alienable, devisable, descendible, subject to condition
Fee simple subject to an executory limitation: Future Interest
Executory interest (held by third party); Automatically forfeited in favor of party other than grantor
Life estate: language to create
“To A for life”; “To A for the life of B”
Life estate: Duration
Measured by life of some transferee or by some other life (pur autre vie)
Life estate: Transferability
Alienable, devisable, and descendible if pur autre vie and measuring life is still alive
Life estate: Future interest
Reversion (grantor); Remainder (third party)
Definition: Devisable
Can pass by will
Definition: Descendible
Can pass by statutes of intestacy
Definition: Alienable
Transferable inter vivos
Fee simple absolute: distiniguishing characteristics
(1) Absolute ownership of potentially infinite duration
(2) Devisible, descendible, alienable
(3) no accompanying future interest
Defeasible Fees: two important rules of construction
(1) Words of mere desire are insufficient (“for the purpose of”, “with the hope of”)
(2) Absolute restraints on alienation are void (not linked to any reasonable time limited purpose)
Life tenant’s entitlements (life estate)
(1) all ordinary uses and profits from the land
(2) must not commit waste
Voluntary or affirmative waste
Overt conduct that causes a drop in value (willful destruction)
Four exceptions where voluntary waste is allowed (PURGE)
(1) PU: Prior use (land was for exploitation)
(2) R: Repairs (can use natural resources for repairs and maintenance)
(3) G: Grant
(4) E: Exploitation (land is suitable only to exploit; see, e.g., a quarry)
Permissive waste or neglect
Land falls into disrepair
Life tenant’s obligations regarding permissive waste or neglect
(1) maintain the premises in reasonably good repair
(2) Pay all ordinary taxes on the land
Ameliorative waste (MBE)
Life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent
Ameliorative waste Life tenant (NY)
Life tenant may make reasonable improvements unless remaindermen object
Possibility of reverter
Fee simple determinable
Right of entry/power of termination
Fee simple subject to condition subsequent
Reversion
Future interest arising in a grantor who transfers an estate of lesser quantum than she started with (other than FS determinable or subject to condition subsequent)
How to determine third party’s future interest
(1) distinguish vested remainders from contingent
(2) distinguish three kinds of vested remainders from each other
(3) Distinguish from executory interests
Vested remainder
Both created in an ascertained person and is not subject to any condition precedent
Contingent remainder
(1) unascertained person
(2) subject to a condition prescedent
Future interest subject to a condition precedent (NY)
Remainder subject to a condition precedent
Contingent remainders: Rule of destructibility
(1) At common law, was destroyed if still contingent at time the preceding estate ended
(2) Today, has been abolished (springing interest)
(3) abolished in NY
Contingent remainders: Rule in shelly’s case
(1) “To A for life, then, on A’s death, to A’s heirs”
(2) Historically, present and future interests merge giving A a fee simple absolute (rule of law not rule of construction)
(3) Applies even in the face of contrary grantor intent
(4) Today, virtually abolished, instead creates (i) life estate in A; (ii) as yet unknown heirs have contingent remainder; (iii) O has reversion
(5) Rule has been abolished in NY
Contingent remainders: Doctrine of worthier title
(1) O, who is alive, conveys “To A for life, then to O’s heirs”
(2) without doctrine, A has life estate and O’s heirs have a contingent remainder, because O is still alive and a living person has no heirs
(3) Under rule, contingent remainder in O’s heirs is void. Instead A has life estate and O has a reversion
(4) rule of construction, not rule of law
(5) abolished in NY w/r/t transfers taking effect after September 1, 1967
Indefeasibly vested remainder
The holder of this remainder is certain to acquire an estate in the future, with no strings attached; This future interest can pass by will or intestee
Vested remainder subject to complete defeasance/vested remainder subject to total divestment (NY: “remainder vested subject to complete defeasance”)
(1) Remainderman exists
(2) not subject to any condition precedent
(3) Right to possession could be cut short by a condition subsequent (shifting executory interest granted in 3rd party; springing if against grantor)
Vested remainder subject to open
(1) remainder is vested in a group of takers at least one of whom is qualified to take
(2) each class member’s share is subject to partial diminution because additional takers can join in (closed if no others can join class)
Vested remainder subject to open: Rule of convenience
Class closes when any member can demand possession
Womb rule
A child in the womb at time of death will share
Executory interest
A future interest created in a transferee which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his hiers (springing)
Shifting executory interest
Follows defeasible fee and cuts short someone other than the grantor
Springing executory interest
Right to cut grantor short
NY: distinction between executory interests and contingent remainders
Both called remainders subject to condition precedent
Rule against Perpetuities
Certain kinds of future remainders are void if there is any possibility that the given interest may vest more than 21 years after the death of a measuring life
Rule against Perpetuities: four step
(1) determine the future interest
(2) Identify the conditions precedent to the vesting of the suspect future interest
(3) find measuring life
(4) Will we know, with certainty, within 21 years of death of our measuring life, if our future interest holder can or cannot take, if not interest is void
Rule against Perpetuities: applicable future interest
(1) applies to contingent remainders, executory interests; certain vested remainders subject to open
(2) does not apply to: any future interest in grantor or indefeasibly vested remainder or subject to complete defeasance
Rule against Perpetuities: Find measuring life
Look for person alive at the date of the conveyance and ask whether that person’s life or death is relevant to the condition’s occurrence
Rule against Perpetuities: Test it
Will we know, with certainty, within 21 years of the death of the measuring life if our future interest holder can or cannot take?
Rule against Perpetuities: gift to open class that is conditional on the members surviving to an age beyond 21
Violates RAP; bad as to one, bad as to all
Rule against Perpetuities: shifting executory interests
An executory interest with no limit on the time within which it must vest violates the RAP
Rule against Perpetuities: Charity to charity exception
Shifting executory interest rule doesn’t apply to gifts from one charity to another
Rule against Perpetuities: “wait and see”
Reform rule: validity of interest is determined on the basis of the facts as they exist at the end of the measuring life; doesn’t apply in NY
Rule against Perpetuities: Uniform rule against perpetuities
Allows for 90 year vesting period as alternative
Rule against Perpetuities: cy pres doctrine
“as near as possible” court may reform in a way that most closely matches grantor’s intent while still complying with RAP; doesn’t apply in NY
Rule against Perpetuities: NY special rules
(1) where it would be invalid b/c of dependance on attaining age in excess of 21, reduced to 21
(2) Woman over 55 cannot have a child
(3) Suspension rule applies (applies RAP to restrictions to the power to sell or transfer); Interest is void if it suspends the power to sell or transfer for longer than lives plus 21
Joint Tenancy: defined
2 or more own with a right of survivorship (you get the other’s stake when they pass)
Tenancy by the entirety: defined
Protected marital interest between married parties w/survivorship
Tenancy in common: definied
2 or more own with no right of survivorship
Joint Tenancy: creation (T-TIP)
(1) Four unities (i) At the time; (ii) same title; (iii) identical interest; (iv) right to possess the whole
(2) Grantor must clearly state right of survivorship
Joint Tenancy: Distinguishing characteristics
(1) Right of survivorship
(2) Alienable, but not devisable or descendible
Joint Tenancy: Severance (SPAM)
Sale; Partition; and, Mortgage
Joint Tenancy: Severance and sale
(1) A joint tenant can sell or transfer her interest during her life time; even secretly
(2) Disrupts 4 unities so creates tenancy in common
(3) joint tenancy remains for any other joint tenants (like if there are 2 more not the one who sold)
(4) In equity, a joint tenant’s mere act of entering into a contract for the sale of her share will sever joint tenancy as to the contracting party’s interest
Joint Tenancy: Severance and partition
(1) Break up plan
(2) three variations: (i) voluntary agreement; (ii) partition in kind: court action if in the best interest of all for physical division; (iii) forced sale: land is sold and proceeds are divided proportionally
Joint Tenancy: severance and mortgage
(1) Majority/NY: Lien theory, whereby a joint tenant’s execution of a mortgage on his or her interest will not sever joint tenancy
(2) Minority: Title theory, execution of a mortgage or a lien on a party’s share will sever the joint tenancy as to that now encumbered share
Tenancy by the entirety (recognized in NY): how to create
(1) Between married parties with right of survivorship
(2) Arises presumptively to any conveyance to married partners unless stated otherwise
Tenancy by the entirety (recognized in NY): protection
(1) very protected: “can’t touch this”; creditor’s of one cannot touch the property
(2) In NY, one spouse may mortgage his interest and his creditors may enforce, but only as to the debtor spouse’s share and non-debtor rights are not compromised (ROS)
Tenancy in common: Three features
(1) each co-tenant owns an individual part with right to possess the whole
(2) Each interest is devisible, descendible, and alienable (no ROS)
(3) Presumption favors tenancy in common
Tenancy in common: Rights and duties of cotenants
(1) Entitled to possess and enjoy the whole; if excluded by another tenant this is “wrongful ouster”
(2) Absent ouster, not liable to other co-tenants for rent
(3) Must account to co-tenants for rent to third parties
(4) Cannot acquire whole through adverse possession
(5) Each co-tenant is reponsible for their share of carrying costs (taxes, mortgage interest payment)
(6) Right to contribution for reasonable and necessary repairs provided that party has notified others of need
(7) No right to contribution for improvements; entitled to credit for any increase in value caused by efforts at time of partition; improver bears full liability for drop in value
(8) Must not commit waste
(9) may bring action for partition
Tenancy in common:Rights of cotenants (NY distinction)
Co tenant may acquire full title by adverse possession if in exclusive possession for >20 years continuous (implied ouster)
Tenancy for years: distinguishing factors
(1) Fixed period of time (2 days - 50 years)
(2) Know the termination date from the start
(3) No notice is needed to terminate
(4) Greater than one year must be in writing
Periodic Tenancy: elements
(1) Continues for successive periods (month to month; year to year; week to week)
(2) Until lessor or tenant give proper notice of termination
(3) can also arise by implication
Periodic Tenancy: arise by implication
(1) Land is leased with no mention of duration, but provision is made for payment of rent at set intervals
(2) Oral term of years in violation of statute of frauds; creates an implied periodic tenancy measured by the way rent is tendered
(3) In a residential lease, if L elects to holdover a T who was wrongfully stayed on past the conclusion of the original lease: implied periodic tenancy arise as measure of how rent is now tendered (in NY landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy unless otherwise agreed)
Periodic tenancy: termination
(1) notice, usually written
(2) Notice must be given at least equal to the length of the period itself unless otherwise agreed; except, tenancy from year-to-year only needs 6 months
(3) by contract can lengthen or shorten notice provisions
(4) Periodic tenancy must end at the conclusion of a natural lease period
Tenancy at will
(1) Tenancy for no fixed duration
(2) Unless the parties expressly agree to a tenancy at will, the payment of regular rent will be treated as an implied periodic tenancy
(3) May be terminated by either party at any time but reasonable demand to vacate is usually needed
(4) In NY, landlord terminating tenancy at will must give a minimum of 30 days written notice of termination
Tenancy at sufferance
(1) created when tenant has wrongfully held over past termination of the lease
(2) lasts until landlord evicts tenant or elects to hold tenant to a new tenancy
(3) In NY, landlord’s acceptance of rent subsequent to the expiration of the term will create an implied month-to-month periodic tenancy, unless otherwise agreed
Tenant’s duties: liability to 3rd parties
(1) T is responsible for keeping the premises in good repair
(2) T is liable for injuries sustained by 3rd parties that are invited even where L promised to make all repairs
Tenant’s duties: Duty to repair
(1) when lease is silent: (i) must maintain premise and make ordinary repair; (iii) must not commit waste (voluntary, permissive, ameliorative)
(2) T expressly covenanted to maintain property in good condition for duration of lease: (i) common law, T was liable for any loss to property including due to force of nature; (ii) Majority view, T is off the hook and may end the lease if premises are destroyed w/o T’s fault; (iii) NY, in absence of express undertaking to restore the premises in the event of their destruction, if destroyed through no fault of tenant, tenant may quit the premises and surrender possession without any further duty to pay rent
Tenant’s duties: fixture
(1) removal of a fixture is voluntary waste
(2) Fixture is a once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to improve black acre permanently
(3) T must not remove a fixture no mater that she installed it
(4) in absence of agreement, T may remove a chattel that she installed so long as removal does not cause substantial harm to premises\
Tenant’s duties: Duty to pay rent
(1) If T breaches and is in possession, L may evict through court or continue with relationship and sue in court for rent due; No self help (in NY treble damages)
(2) if T breaches but is out of possession (SIR): Surrender, giving up the lease; Ignore, hold T responsible for unpaid rent as if still there (minority); Re-let, hold tenant liable for any deficiency (majority says must at least try to re let) (No requirement to mitigate in NY when tenant abandons)
Landlord’s duties: duty to deliver possession
(1) Majority rule requires L put T in physical possession of the premises
(2) American rule need only legal possession
Landlord’s duties: implied covenant of quiet enjoyment
(1) right to quiet use and enjoyment of premises without interference from L
(2) Breach by wrongful eviction (evicts or excludes T from premises)
(3) Breach by constructive eviction: SING: Substantial interference, due to L’s actions or failure to fix a chronic problem; Notice, T must notify L of problem and L must fail to respond meaninfully; Goodbye, T must vacate w/in a reasonable time
Landlord’s duties: Liability for other tenants
(1) generally not liable
(2) Two exceptions (i) must not permit a nuisance on site; (ii) must control all common areas
Landlord’s duties: Implied warranty of habitability
(1) Applies only to residential leases
(2) Non-waivable
(3) premises must be fit for basic human dwelling (case law and housing code)
(4) T’s entitlements following breach (MRRR): (i) Move out and end lease; (ii) Repair and deduct from future rent; (iii) Reduce rent (escrow); (iv) remain in possession and seek money damages
(5) L is barred from penalizing T for reporting housing code violations by, for example, raising rent, ending lease, harassing T, or any other reprisals
Assignment and Sublease: availability
(1) in the absence of prohibition in the lease, a T my freely transfer interest in the whole (assignment) or in part (sublease)
(2) Lease can prohibit T from assigning or subleasing without L’s prior written approval
(3) Once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless right is expressly reserved
Assignment and Sublease: NY rule
(1) Unless lease provides otherwise, a residential T may not assign without L’s written consent
(2) L can unreasonably withhold consent to assign and T’s sole remedy is release from lease
(3) T in a residential building with 4 or more units has the right to sublease subject to L’s written consent
(4) Consent to sublease cannot be unreasonably withheld, unreasonably withheld consent is deemed consent
Assignment: Privity and liability
(1) as a result of assignment, L and T2 are in privity of estate
(2) L and T2 are liable for all covenants in the original lease that run with the land
(3) L and T2 are not in privity of contract unless T2 assumed all promises
(4) L and T1 are no longer in privity of estate
(5) L and T1 are still in privity of contract
(6) L and T1 are secondarily liable to each other
Sublease: Privity and liability
(1) Neither privity of estate or contract
(2) relationship between L & T1 is fully in tact
Landlord’s tort liability: Caveat lessee
(1) Common law: let T beware; L is under no duty to make premises safe
Landlord’s tort liability: CLAPS (tort liability potential)
(1) Common areas
(2) Latent defects rule (must warn of hidden defects known or should have known; no duty to repair)
(3) Assumption of repairs (if repair, liable for negligent repair)
(4) Public use rule: L leases a public space and should know, because of the nature of the defect and the length of the lease that T will not repair is liable for any defects on the premises
(5) Short term lease of furnished dwelling (liable for any defects on site)
Affirmative easement: method of creation (PING)
(1) Prescription: use that is continuous, open and notorious, actual under a claim of right that is hostile for request statutory period
(2) Implication: implied from prior use; at time land is severed, a use of part existed from which it can be inferred that an easement permitted its continuation was intended
(3) Necessity: division of a tract deprives one lot of means of access out
(4) Grant: writing signed by grantor
Affirmative easement: parties bound
(1) easement appurtenant is transferred automatically with dominant tenement
(2) Easement in gross for commercial purposes is assignable
Affirmative easement: remedy
Injunction or damages
Negative easements: applications (LASS)
Light; air; support; streamwater
Negative easement: creation
can be created only by writing signed by grantor
Negative easement: remedy
Injunction or damages
Real covenants: method of creation
writing signed by grantor
Real covenants: parties bound
(1) Burden of promise will run to successor of burdened lot if WITHN requirements are satisfied: (i) Writing; (ii) Intent; (iii) Horizontal and vertical privity; (iv) Notice
(2) Benefit of promise will run to successor of benefited lot if WITV: (i) writing; (ii) Intent; (iii) touch and concern; (iv) vertical privity
Real covenants: remedy
damages
Equitable servitudes: method of creation
writing signed by grantor (unless implied by general scheme doctrine)
Equitable servitudes: parties bound
Successors bound if WITNes: (i) Writing; (ii) Intent; (iii) Touch and concern; (iv) Notice
Equitable servitudes: Remedy
Injunction
Reciprocal Negative servitudes (general scheme doctrine):method of creation
(1) Majority: In subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no such restriction if, at the start of subdividing the grantor had (i) common scheme; (ii) unrestricted lot holders had notice
(2) Minority rule: does not bind subsequent grantees unless their lots are expressly restricted in writing
Easement: definition
the grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land called the servient estate
Easement: Affirmative v. Negative
(1) Affirmative: right to do something on servient land
(2) Negative: right to prevent servient landowner from doing something on their land (LASS); can only be created expressly, by writing signed by the grantor
Easement: Appurtenant v. held in gross
(1) Appurtenant: benefits holder in his physical use or enjoyment of the property (two parcels of land, dominant and servient)
(2) In gross confers upon holder some personal or pecuniary advantage that is not related to his use or enjoyment of the land (no dominant tenement)
Easement: Transferability
(1) Appurtenant easement passes automatically with the dominant tenement regardless of whether it is even mentioned in the conveyance
(2) Easement in gross is not transferable unless it is for commercial purposes
Adverse possession elements (COAH)
(1) Continuous use for statutory period (10 years in NY)
(2) Open & notorious
(3) Actual use
(4) Hostile use (w/o consent)
Termination of easement: END CRAMP
(1) Estoppel: servient owner materially changes their position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced
(2) Necessity: easements created by necessity expire as soon as the need ends; however, if nonetheless created by express grant, won’t end when need ends
(3) Destruction of servient land other than through willful conduct of servient owner
(4) Condemnation of servient estate (eminent domain)
(5) Release (written release by easement holder to servient owner)
(6) Abandonment: Easement holder must demonstrate physical action with the intent to never use easement again (mere nonuse or mere words are insufficient)
(7) Merger doctrine: When title to easement and title to servient land become vested in the same person
(8) prescription (adverse possession)
License: definition
Mere privilege to enter another’s land for delineated purpose
License: Creation and revocation
(1) not subject to SOF
2) fully revocable unless estoppel applies (licensee invested substantial money, labor (or both)
License: classic examples
(1) Tickets
(2) Neighbors talking at a fence: “you can have that right of way across my fence”
Profit
(1) entitles its holder to enter the servient land and take from it soil or some substance of the soil (trees)
(2) Follow rules of easement
Covenant: definition
(1) Promise to do or not do something related to land.
(2) Contractual obligation not a grant of a property interest
Covenant: restrictive covenants
Promise to refrain from doing something related to land
Covenant: covenant v. equitable servitude
(1) covenant is at law = money as a remedy
(2) equitable servitude is at equity = injunction as a remedy
Covenant: will conveyance run with the land (WITHN) & (WITV)
Elements necessary for burden to run
(1) Writing: original covenant was in writing
(2) Intent: original parties intended covenant to run
(3) Touch and concern the land
(4) Horizontal and vertical privity
(5) Notice
Does the benefit of A’s promise to B run from B to B-1?
(1) writing
(2) Intent
(3) Touch and concern
(4) Vertical privity
Horizontal privity
(1) Nexus between original parties (A & B)
(2) requirements: Succession of estate; were in a grantor/grantee or mortgage/mortgagee or landlord/tenant relationship
Vertical privity
(1) Nexus between A and A1
(2) Non hostile: contract, devise, descent
(3) Only time absent is adverse possession
Equitable servitude: definition
Promise that equity will enforce against successors; accompanied by injunctive relief
Equitable servitude: creation (WITN)
(1) writing
(2) Intent
(3) Touch and concern
(4) Notice
Equitable servitude: Implied equitable servitude
(1) subdivider had a general scheme of residential development which included D’s lot
(2) Lot holder had notice of promise
(3) forms of notice (AIR): (i) Actual notice; (ii) Inquiry notice: neighborhood conforms to common restriction (lay of land); (iii) Record notice: publicly recorded document
Equitable servitude: equitable defense to enforcement
(1) Changed conditions: changes so pervasive that the entire area is changed
Adverse possession: Elements (COAH)
(1) Continuous: uninterrupted for statutory period (10 years in NY)
(2) Open and Notorious: sort of possession usual owner would make
(3) Actual: literal entry
(4) Hostile: possessor doesn’t have owner’s consent to be there
Adverse possession: additional element for NY
(1) Possessor must have good faith belief that the land he is occupying is his
(2) considered bad faith for the claimant to know that he is occupying another’s land
Adverse possession: tacking
(1) One adverse possessor may tack on to his time with the land his predecessor’s time so long as privity which is satisfied by any nonhostile nexus such as blood, contract, deed, or will
(2) Not allowed when there has been ouster
Adverse possession: disabilities
SOL will not run against a true owner who is afflicted by a disability at the start of adverse possession (infancy, insanity, imprisonment)
Land conveyance: Two elements
(1) the land contract
2) The closing (where deed becomes operative document
Land contract: SOF
(1) must be in writing signed by party to be bound
(2) must describe property and state some consideration
Land contract: Part performance
(1) exception to SOF
(2) Two of three: (i) B takes possession; (ii) B pays all or part of price; (iii) B makes substantial improvements
Land contract: risk of loss
(1) equitable conversion: once the contract is signed, B owns the land so bears risk of loss unless contract says otherwise
(2) In NY, so long as buyer is without fault, the risk of loss remains with the seller until buyer has title or takes possession
Land contract: Implied promises
(1) seller promises to provided marketable title: free from reasonable doubt; free from litigation or threat of litigation
(2) unmarketable title if: (i) adverse possession; (ii) encumbrances; (iii) zoning violations
(2) seller promises not to make any false statements of material fact (lies and omissions)
Closing: LEAD
(1) controlling document becomes the dead
(2) lawfully executed: must be inwriting signed by grantor (no need for consideration); description of the lien: unambiguous and good lead
(3) Delivery: Can be satisfied by physical transfer of the deed to the grantee; Did grantor have present intent to be bound irrespective of whether or not the deed itself was handed over; express rejection of deed defeats delivery
Quitclaim deed
(1) contains no covenants
2) did promise to provide marketable title at closing (off the hook for post closing problems
General warranty deed
(1) Warrants against all defects in title even to predecessors
General warranty deed: covenants
(1) present covenants: (i) seisin: grantor owns the estate; (ii) Right to convey: power to transfer; (iii) against encumbrances: no servitudes or mortgages
(2) Future covenants: (i) Quiet enjoyment: won’t be disturbed in possession by third parties lawful claim of title; (iii) warranty: grantor will defend grantee against lawful claims of title asserted by others; (iv) future assurances: will do what is needed to perfect title
Statutory special warranty deed (bargain and sale deed in NY)
Two promises: (1) grantor promises hasn’t conveyed to anyone other than grantee; (2) estate is free from encumbrances made by grantor
Recording system (double dealer): two brightline rules
(1) If B is a bonafide purchaser, and we are in a notice jurisdiction, B wins, regardless of whether or not she records before A does
(2) If B is a bonafide purchaser and we are in a race-notice jurisdiction (NY), B wins if she records properly before A does
Bonafide purchaser
(1) Buys property for value
(2) without notice that someone else got there first (AIR): (i) Actual notice; (ii) inquiry notice: examination of property would learn of previous buyer; (iii) record notice: title search
Recording system (double dealer): Shelter rule
One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against (doesn’t matter if transferee knew of prior transfer)
Recording system (double dealer): Wild ded
If a deed, entered on the records, has a grantor unconnected to the chain of title, the deed is a wild deed. It is incapable of giving record notice of its existence
Recording system (double dealer): Estoppel by Deed
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest
Mortgages: creation
(1) Conveyance of a security interest in land intended by the parties to be collateral for repayment of a debt
(2) Union of two elements: (i) debt; (ii) voluntary transfer of security interest in debtor’s land to secure the debt
(3) Typically must be in writing to satisfy statute of frauds
Mortgages: equitable mortgages
Giving deed to creditor that is absolute on its face
Mortgages: parties’ rights
(1) Until foreclosure debtor-mortgagor has title and right to possession
(2) creditor-mortgagee has lien
Mortgages: transferability
(1) All parties to a mortgage can transfer their interests
(2) Creditor mortgagee can transfer by: (i) endorsing not & delivering it to transferee; (ii) executing separate documents of assignment
Real defenses (apply even to HIDC) MADFIFI4
Material alteration; duress; fraud in fact (lie about the instrument; incapacity; illegality; infancy; insolvency
Holder in due course requirements
(1) Note must be negotiable made payable to the named mortgagee
(2) indorsed by the named mortgagee
(3) original must be delivered to transferee (not a photo copy)
(4) transferee must take the note in good faith without notice of any illegality
(5) transferee must pay value for the note, meaning some amount that is more than nominal
Mortgages:selling of mortgaged property
Lien remains on the land so long as the instrument has been properly recorded
Mortgages: who is liable if B assumes O’s mortgage
(1) B is primarily liable; O remains secondarily liable
(2) if B takes “subject to mortgage” B assumes no personal liability and only O is personally liable (can still foreclose)
Effects of foreclosure
(1) terminates interests junior to the mortgage being foreclosed but does not affect senior interests
(2) buyer at foreclosure sale takes subject to senior interests (not personally liable, but senior creditor can foreclose)
Redemption: redemption in equity
(1) At any time prior to the foreclosure sale, debtor has right to redeem the land and free itself of the mortgage
(2) must pay missed payments plus interest plus costs (but see acceleration clause)
(3) Debtor cannot waive right to redeem (clog)
Redemption: statutory redemption (not in NY)
(1) payment of foreclosure sale price 6 months to 1 year after foreclosure
(2) right to possess property during statutory period
(3) redemption nullifies the foreclosure sale and redeeming owner gets restored title
(4) no statutory right in NY
Lateral support
(1) excavator is liable to adjacent landowner’s excavation if causes cave in only if negligent
(2) SL does not apply unless plaintiff shows that, because of defendant’s action, would have collapsed even in its natural state
Water rights: Riparian doctrine
(1) water belongs to those owning land bordering watercourse
(2) Riparians share right to reasonable use of the water
(3) liable for use if unreasonably interferes with others’ use
Water rights: Prior appropriation doctrine
(1) water belongs initially to the state but the right to diver it and use it can be acquired by individual regardless of riparian owner
(2) rights are determined by priority of beneficial use (first in time first in right)
Water rights: groundwater
Surface owner is entitled to make reasonable use of ground water however must not be wasteful
Water rights: surface waters
common enemy rule: may change drainage or make improvements to combat flow of surface water (some courts prohibit unreasonable)
Possessor’s right: trespass
Invasion of land by physical object; ejectment action to remove
Possessor’s right: private nuisance
Substantial and unreasonable interference with anothers use and enjoyment of land
Eminent domain: definition
Government’s 5th amendment power to take private property for public use in exchange for just compensation
Eminent domain: implicit or regulatory taking
Government regulation that, although not intended to be, has the same effect as a taking
Eminent domain: remedy
(1) compensate owner
(2) terminate regulation and pay owner for damage while in effect
Zoning: definition
Pursuant to police powers government may enact statutes to reasonably control land use
Zoning: unconstitutional exactions
Exactions must be reasonably related both in nature and scope to the impact of the proposed development
Zoning: variance (must show)
(1) undue hardship
(2) won’t decrease neighboring property values
