Property Final Flashcards
EASEMENTS:
Types of Easements
(1) Express Easement
(2) Easement Implied by Prior Existing Use
(3) Implied Easement by Estoppel
(4) Easement by Necessity
EASEMENTS:
Express Easement Elements
WRITING- Must be in writing
INTENT- Creator must be have intended to create an irrevocable easement
NOTICE- Only binding if notice was given by; record, actual or inquiry
APPURTENANT- Must be a dominant and a servient estate
W.I.N.A
(wait i need apples)
EASEMENTS:
Implied Easement by Estoppel Elements
PERMISSIVE USE- a licence was given at some point (oral- if writing they u knew it was irrevocable….shit outa luck)
REASONABLE RELIANCE- The dominant made substantial improvements based on their reasonable reliance
REASONABLY FORESEEABLE- Servient should have known the dominant would have made improvements
*Courts may apply…but not all jurisdictions do
P.R.F
(promise really failed)
EASEMENTS:
Implied Easement by Prior Existing Use Elements
UNITY & SEVERENCE-
(1) The dominant and servient estates were once under common ownership *quasi-easment was used prior to severance
(2) Severance created 2 or more parcels
OPEN AND APPARENT- easement was reasonably discoverable. (not the same as visible)
CONTINUOUS- Frequent and on going
NECESSITY- The necessity was determined at the time of severance
Traditional Rule
“by reservation” = Strict necessity
“by grant” = Reasonable necessity/ it is highly convenient
Moden Rule
both only need = Reasonable necessity
U.O.C.N
(Uncle Omar cant negotiate)
EASEMENTS:
Implied Easement by Necessity Elements
UNITY & SEVERANCE- The dominant and servient estates were once under common ownership and Severance created 2 or more parcels
STRICT NECESSITY- When the severance created an issue where one parcel of land is landlocked, in that there is no access to public roads without the easement
*Convenience is not necessity
*In some jurisdictions…
(1) Inadequate, difficult or costly = ok
(2) Water access = ok
Easement by necessity ends when necessity ends
U.S
(US NEEDS;)
Statute of Frauds
Every conveyance on land must be in writing other than a lease of 3 years or less
MARKETABLE TITLE
What is a Merger Doctrine?
After closing, the Contract of sale Merges into the deed.
Before closing (during executory period) you can sue for marketable title but…
after closing you can no longer sue for marketable title and would instead be breach of deed in the “The covenant to convey title”
MARKETABLE TITLE
What is a Marketable title?
Common law- All land sales require the seller to deliver marketable title at closing. Unless otherwise stated in the K.
Marketable title: the law ensures the buyer a marketable title free from reasonable doubt but not every doubt, thus free from reasonable doubt or any sort of threat/risk of litigation. A marketable title is free from all encumbrances, 3rd party interest which is incompatible with full enjoyment of the property.
MARKETABLE TITLE
If buyer Learns of Title Defects BEFORE closing then they must…
(1) Buyer Notifies the Seller
(2) Give the seller a reasonable opportunity to fix the defect
IF Defect is not fixed by closing. Buyer is excused from buying. And can sue seller for breach of K.
MARKETABLE TITLE
Under New York Law what was the Requirements to Transfer Real Property:
- In writing
- Signed by Grantor
- Names of Grantor and Grantee
- Description of the property
Not Required: Notarization, Recording, Signature of Buyer.
DEEDS
What are the Types of Deeds that can conveyed?
GWD: General Warranty Deed
SWD: Special Warranty Deed
QCD: Quit Claim Deed
DEEDS
What is GWD and what conveyances are included?
protections of
(1) Covenant of Right to Convey Title - Present Covenant
(2) Covenant of No Encumbrances - Present Covenant
(3) Covenant of Quiet Enjoyment - Future Covenant
DEEDS
What is a breach of Quiet Enjoyment
To be dispossessed you must….
1. Actually be in possession;
2. Then be dispossessed
3. By someone claiming by through or under the grantor with superior title
*cannot just exist to = a breach
DEEDS
What is SWD and what conveyances are included?
Only protections against Covenant of No Encumbrances, made by / occurred during the promisors was in possession
DEEDS
What is Quit Claim and what conveyances are included?
Nothing.No Protection/promises for health of title.
DEEDS
What covenants run with the land?
Future covenants are always impliedly assign with privity of estate (run with the land)
Present covenants
(a) American rule –> present conventions are not implied assign with privity of estate (DON’T run with the land)
(b) Rockafeller rule –> present conventions are implied assign with privity of estate ( run with the land)
DEEDS
What is Impliedly Assigned
Impliedly Assigned = Easements and other rights that remain with property even after being transferred
DEEDS
What is Privity of Estate - now
**Privity of Estate* * = “Any voluntary transfer of possession or title”
Person with the future interest and the person in possession of the estate
RECORDING
Recording Systems, what are they and what is the rule ?
Recording System is in place to figure out who is the rightful owner of the property at issue.
© Common Law Rule states that: First in time is first in right. (Who ever got their deed first is the owner)
But there are “recording statutes” that based on jurisdiction, this can change this
The recording statue can be used to void encombrances
RECORDING
What are the Recording Statutes?
(1) RACE- The first purchaser For Value to record wins
(2) NOTICE- The subsequence purchaser For Value wins if the purchase made WITHOUT any notice of the prior purchase. (even if they don’t record)
(3) RACE-NOTICE *NY rule
The subsequence purchaser For Value wins if (1)the purchase made WITHOUT any notice of the prior purchase AND (2) the subsequent purchase is recorded first.
*Gifts don’t win in any jurisdiction
RECORDING
What are the types of Notice?
(1) Actual Notice: Did the purchaser already know
(2) Constructive Notice: The law will treat purchaser as if they had actual notice if facts could have been discovered by either:
(a) Searching the records (a.k.a. record notice) OR (b) Inquiry (look at the property and ask) *when the initial grantee took posestion of the land
RECORDING
What is the Mother Hubbard clause?
“Mother Hubbard clause” = a deed can be legally enforceable even if you don’t specifically mention the property. BUT it DOES NOT constitute as notice
