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Property II Flashcards

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1
Q

What are the 4 factors in determining the amortization period?

A
  1. Cost of Land vs Burden on owner (has owner recouped investement?)
  2. Public outcry to against owner’s use
  3. Length of time of nonconforming use
  4. Historic Standards (factories: 10-20 yrs)
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2
Q

What are the three ways to avoid a zoning ordinance?

A

Amendment, Variance, Special Exception

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3
Q

What are the 3 types of zoning regulations?

A

Area, Use, Building

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4
Q

What is an “area” zoning regulation?

A

deals with size and shapes of lot sizes

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5
Q

What is a “building” zoning regulation?

A

regulates placement, height, shape, bulk of building

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6
Q

What is a “use” zoning regulation?

A

tells an occupant how to use land (residential, corporate, retail…)

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7
Q

What is the rational basis test and what case did it come from?

A

Ordinance is constitutional unless it is clearly arbitrary and unreasonable, having no connection to public safety, health, morals, or general welfare. (“Euclid”)

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8
Q

What are the ways to terminate a nonconforming use?

A

destruction, abandonment, nuisance, takings, amortization

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9
Q

Define Eminent Domain

A

land taken for public use with just compensation (FMV)

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10
Q

Define public use as it pertains to Eminent Domain

A

rationally related to a conceivable public purpose or legitimate governmental goal

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11
Q

What are the two types of Real Covenants and what type of remedy are they used for?

A
  1. covenant running at law (damages)

2. equitable servitude (injunctions)

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12
Q

What does it take to enforce benefit for a covenant running at law? What additional elements to enforce the burden?

A

S.O.F, Intent to bind successors, touch and concern, and vertical privity
burden: horizontal privity, notice

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13
Q

What does it take to enforce the benefit for equitable servitude? What additional element to enforce the burden?

A

S.O.F (or common plan), intent to bind successors, and touch and concern
burden: notice

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14
Q

What is a common plan exception under equitable servitude?

A

Where a developer has manifested a “common plan” to impose uniform restrictions

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15
Q

How does one get out of an HOA covenant?

A

Unreasonableness, abandonment, change of conditions

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16
Q

Define unreasonableness as it pertains to an HOA covenant.

A

restriction substantially outweighs the benefit of enforcement (community as a whole)

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17
Q

Define abandonment as it pertains to an HOA covenant.

A

a reasonable person would conclude that restriction has been abandoned b/c the HOA has not been enforcing it

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18
Q

Define “change of conditions” as it pertains to an HOA covenant.

A

original purpose has been materially altered or destroyed, intended benefit no longer exists

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19
Q

What is Horizontal Privity?

A

“Mutual Interest” - original parties had an interest in the same piece of property, OR
“Successive Interest” - orig party transfers property & creates covenant at the same time

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20
Q

What is Vertical Privity?

A

acquiring the entire estate of original party

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21
Q

What does “touch and concern” mean?

A

restricting the use of one parcel enhances the value of another parcel

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22
Q

What is the modern trend view of horizontal privity?

A

It is no longer a requirement.

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23
Q

What is the majority rule for governing a common interest community?

A

the HOA must act reasonably in exercise of discretionary powers

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24
Q

What is an “amendment” to a zoning restriction and when is it used?

A

the municipality allows a nonconforming use for a particular parcel of land so long as it passes the rational basis test

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25
Q

What is a “variance” to a zoning ordinance and when will it be allowed?

A

there is a unique physical condition peculiar to the property, it is allowed when an unnecessary hardship exists (no way to conform)

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26
Q

What is a “special exception” to a zoning ordinance?

A

use is permitted if certain conditions are met

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27
Q

When does “aesthetic” zoning apply a stricter test than the Rational Basis Test? What is that test?

A

when a fundamental right has been violated. The zoning must be absolutely necessary for a compelling state interest

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28
Q

When does “family” zoning apply a stricter test than the Rational Basis Test?

A

when a municipality attempts to narrow the traditional meaning of “family”

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29
Q

When does “growth control/exclusion” apply a stricter test than the Rational Basis Test?

A

when a party can demonstrate that discrimination against a protected class has occurred

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30
Q

What is the “Penn Central” 3 part balancing test for a taking?

A
  1. economic impact of regulation (property as a whole including bundle of rights”
  2. Regulation interfering with investment backed expectations (owner’s POV)
  3. Physical Taking or regulation limting use
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31
Q

What are the 3 bright-line tests for a taking?

A
  1. Permanent Physical Occupation
  2. Loss of All Economic Beneficial/Productive Use
  3. Exaction
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32
Q

What is the bright line test for a “permanent physical occupation” taking?

A

3rd party deciding where and how the item is placed (can be infinite or not)

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33
Q

What is the exception for a “Loss of All Economic Beneficial/Productive Use” taking?

A

the intended use was already prohibited

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34
Q

What is the bright line test for an “exaction” taking?

A

government requires owner/developer to provide portion of land or fees to offset impact of proposed project (quid pro quo)

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35
Q

What a happens when something is rezoned and the use now becomes nonconforming?

A

the nonconforming use is allowed to continue, but may not be expanded (minor repairs ok)

36
Q

What are the elements for a private nuisance?

A

Intent, Nontresspassory, unreasonable, substantial interference, use and enjoyment of land

37
Q

What are the two tests for “unreasonable” under private nuisance?

A
  1. Gravity of Harm - extent/character of the harm vs burden on harmed to avoid harm
  2. Utility of Conduct - are there reasonable alternatives
38
Q

What is needed to meet the statute of frauds?

A

in writing, parties, price, property description

39
Q

What is the exception to the statute of frauds and its definition?

A

Doctrine of Part Performance - buyer has paid in all or in part, made substantial improvements, and/or taken possession

40
Q

When makes a title unmarketable?

A
  1. interest is less than the one they purport to sell
  2. title subject to encumbrance
  3. Private restrictions (HOAs)
41
Q

What makes a city ordinance an encumbrance causing unmarketable title?

A

a violation of the ordinance

42
Q

What is the majority view of equitable conversion?

A

When something happens to the property between the contract and closing the buyer is responsible for damages

43
Q

What is the minority view of equitable conversion?

A

When something happens to the property between the contract and closing the seller is responsible for damages

44
Q

What is the modern trend when dealing of equitable conversion?

A

the party entitled to possession bears the risk

45
Q

What is the time between the contract and the closing known as?

A

The executory period

46
Q

What is a seller’s duty to disclose?

A

No duty to disclose unless the seller misrepresents or conceals facts

47
Q

What is the modern rule for a seller’s duty to disclose?

A

seller must disclose on site defects that are not readily observable through reasonable inspection

48
Q

Who has a duty to disclose off-site defects and what types?

A

professional developers/builders and agents thereof have to disclose physical defects

49
Q

What is required to transfer property?

A

intent/manifestation to immediately transfer the interest

50
Q

What are the three things that can happen when a buyer defaults?

A
  1. Foreclosure
  2. Reinstatement
  3. Right of Redemption
51
Q

What are the two types of foreclosures and when are they used? Which type allows deficiency?

A
  1. Judicial - court supervised used for mortgages, allows deficiency
  2. Nonjudicial - used for deeds of trust or mortgage with power of sales clause
52
Q

What is reinstatement when discussing a buyer defaulting?

A

when the mortgager quickly pays back missed payments

53
Q

What is the right of redemption when discussing a buyer defaulting?

A

get property back after judicial foreclosure by paying the sale price + interest

54
Q

What are the remedies after closing and their definitions?

A

Specific Performance - making them perform
Damages - monetary compensation
Rescission - rescinding the contract

55
Q

When can foreclosure be set aside?

A

if the sales price “shocks the conscious”

56
Q

What are the three types of title assurance deeds?

A
  1. General Warranty
  2. Special Warranty
  3. Quit Claim
57
Q

Define a General Warranty Deed

A

grantor warrants title against all defects, whether arising before or after they took title

58
Q

Define a Special Warranty Deed

A

grantor warrants title against all defects arising after obtaining title

59
Q

Define a Quite Claim Deed

A

no warranties about title (a simple transfer)

60
Q

What does the grantor promise with the 3 present covenants associated with deeds?

A
  1. Seisen- true owner and amount is correct
  2. Right to Convey- has authority to convey
  3. Against Encumbrances - none known
61
Q

What does the grantor promise with the 3 future covenants associated with deeds?

A
  1. Warranty - to defend against title defects
  2. Quiet Enjoyment- warrants use/enjoyment
  3. Further Assurance - cure title defects
62
Q

What is the race recording act?

A

The first purchaser of value to record prevails

63
Q

What is the default for who holds superior title in dealing with recording acts?

A

The 1st in time

64
Q

What is the notice recording act?

A

the last bona-fide purchaser prevails over prior unrecorded transferee

65
Q

What is the race-notice act?

A

the last bona-fide purchaser to record first prevails

66
Q

What is a bona-fide purchaser?

A

One who purchases for value without notice of a previous tranferee

67
Q

What is the shelter rule?

A

Passes bona-fide purchaser status to a subsequent purchaser whether they have notice or not

68
Q

What are the two types of notice and their definitions?

A

Actual - knowledge of a prior interest

Constructive - through record or inquiry

69
Q

What is an easement?

A

a nonpossessory interest in another’s land that entitles one to use that land

70
Q

Define an express easement.

A

voluntary and clearly stated with specificity of use, signed by servient land owner

71
Q

Define an implied easement by prior existing use (3 part test).

A
  1. Severance of title to land held by one
  2. at severance, an existing apparent use of one parcel to benefit another
  3. reasonable necessity (beneficial)
72
Q

Define an implied easement by necessity.

A

land locked with no access. severance of common ownership, strict necessity

73
Q

What is the majority and modern rule for an implied easement by necessity?

A

majority - no legal right to access

modern - no practical access

74
Q

Define a prescriptive easement.

A

open and notorious, adverse and hostile (usually presumed), and continuous use for the statutory period

75
Q

Define an easement by estoppel.

A

lasts as long as it is equitable, one allows another to use their land, owner expects user has relied (incurred significant cost, made improvements)

76
Q

Who is the Dominant Tenement?

A

the land owner benefited by the easement

77
Q

Who is the Servient Tenement?

A

the land owner burdened by the easement

78
Q

How can an easement be modified?

A

Through technology in the manner, frequency and intensity. look to the grantor’s intent

79
Q

Define an easement in gross.

A

no dominant land affected

80
Q

Define an appurtenant easement.

A

runs with the land & transfers with land

81
Q

How can an easement be terminated through abandonment?

A

nonuse of easement, there is an intent to relinquish or purpose inconsistent with future existence

82
Q

How can an easement be terminated through condemnation?

A

The gov takes it for public use and pays FMV

83
Q

What are CC&Rs?

A

Covenants, Conditions and Restrictions?

84
Q

What is title insurance?

A

getting a company to guarantee a deed, these come with many restrictions

85
Q

What is a wild deed?

A

a deed recorded outside the chain or a late recording.

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