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Property II Flashcards

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
What is a "variance" to a zoning ordinance and when will it be allowed?
there is a unique physical condition peculiar to the property, it is allowed when an unnecessary hardship exists (no way to conform)
26
What is a "special exception" to a zoning ordinance?
use is permitted if certain conditions are met
27
When does "aesthetic" zoning apply a stricter test than the Rational Basis Test? What is that test?
when a fundamental right has been violated. The zoning must be absolutely necessary for a compelling state interest
28
When does "family" zoning apply a stricter test than the Rational Basis Test?
when a municipality attempts to narrow the traditional meaning of "family"
29
When does "growth control/exclusion" apply a stricter test than the Rational Basis Test?
when a party can demonstrate that discrimination against a protected class has occurred
30
What is the "Penn Central" 3 part balancing test for a taking?
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
31
What are the 3 bright-line tests for a taking?
1. Permanent Physical Occupation 2. Loss of All Economic Beneficial/Productive Use 3. Exaction
32
What is the bright line test for a "permanent physical occupation" taking?
3rd party deciding where and how the item is placed (can be infinite or not)
33
What is the exception for a "Loss of All Economic Beneficial/Productive Use" taking?
the intended use was already prohibited
34
What is the bright line test for an "exaction" taking?
government requires owner/developer to provide portion of land or fees to offset impact of proposed project (quid pro quo)
35
What a happens when something is rezoned and the use now becomes nonconforming?
the nonconforming use is allowed to continue, but may not be expanded (minor repairs ok)
36
What are the elements for a private nuisance?
Intent, Nontresspassory, unreasonable, substantial interference, use and enjoyment of land
37
What are the two tests for "unreasonable" under private nuisance?
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
What is needed to meet the statute of frauds?
in writing, parties, price, property description
39
What is the exception to the statute of frauds and its definition?
Doctrine of Part Performance - buyer has paid in all or in part, made substantial improvements, and/or taken possession
40
When makes a title unmarketable?
1. interest is less than the one they purport to sell 2. title subject to encumbrance 3. Private restrictions (HOAs)
41
What makes a city ordinance an encumbrance causing unmarketable title?
a violation of the ordinance
42
What is the majority view of equitable conversion?
When something happens to the property between the contract and closing the buyer is responsible for damages
43
What is the minority view of equitable conversion?
When something happens to the property between the contract and closing the seller is responsible for damages
44
What is the modern trend when dealing of equitable conversion?
the party entitled to possession bears the risk
45
What is the time between the contract and the closing known as?
The executory period
46
What is a seller's duty to disclose?
No duty to disclose unless the seller misrepresents or conceals facts
47
What is the modern rule for a seller's duty to disclose?
seller must disclose on site defects that are not readily observable through reasonable inspection
48
Who has a duty to disclose off-site defects and what types?
professional developers/builders and agents thereof have to disclose physical defects
49
What is required to transfer property?
intent/manifestation to immediately transfer the interest
50
What are the three things that can happen when a buyer defaults?
1. Foreclosure 2. Reinstatement 3. Right of Redemption
51
What are the two types of foreclosures and when are they used? Which type allows deficiency?
1. Judicial - court supervised used for mortgages, allows deficiency 2. Nonjudicial - used for deeds of trust or mortgage with power of sales clause
52
What is reinstatement when discussing a buyer defaulting?
when the mortgager quickly pays back missed payments
53
What is the right of redemption when discussing a buyer defaulting?
get property back after judicial foreclosure by paying the sale price + interest
54
What are the remedies after closing and their definitions?
Specific Performance - making them perform Damages - monetary compensation Rescission - rescinding the contract
55
When can foreclosure be set aside?
if the sales price "shocks the conscious"
56
What are the three types of title assurance deeds?
1. General Warranty 2. Special Warranty 3. Quit Claim
57
Define a General Warranty Deed
grantor warrants title against all defects, whether arising before or after they took title
58
Define a Special Warranty Deed
grantor warrants title against all defects arising after obtaining title
59
Define a Quite Claim Deed
no warranties about title (a simple transfer)
60
What does the grantor promise with the 3 present covenants associated with deeds?
1. Seisen- true owner and amount is correct 2. Right to Convey- has authority to convey 3. Against Encumbrances - none known
61
What does the grantor promise with the 3 future covenants associated with deeds?
1. Warranty - to defend against title defects 2. Quiet Enjoyment- warrants use/enjoyment 3. Further Assurance - cure title defects
62
What is the race recording act?
The first purchaser of value to record prevails
63
What is the default for who holds superior title in dealing with recording acts?
The 1st in time
64
What is the notice recording act?
the last bona-fide purchaser prevails over prior unrecorded transferee
65
What is the race-notice act?
the last bona-fide purchaser to record first prevails
66
What is a bona-fide purchaser?
One who purchases for value without notice of a previous tranferee
67
What is the shelter rule?
Passes bona-fide purchaser status to a subsequent purchaser whether they have notice or not
68
What are the two types of notice and their definitions?
Actual - knowledge of a prior interest | Constructive - through record or inquiry
69
What is an easement?
a nonpossessory interest in another's land that entitles one to use that land
70
Define an express easement.
voluntary and clearly stated with specificity of use, signed by servient land owner
71
Define an implied easement by prior existing use (3 part test).
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
Define an implied easement by necessity.
land locked with no access. severance of common ownership, strict necessity
73
What is the majority and modern rule for an implied easement by necessity?
majority - no legal right to access | modern - no practical access
74
Define a prescriptive easement.
open and notorious, adverse and hostile (usually presumed), and continuous use for the statutory period
75
Define an easement by estoppel.
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
Who is the Dominant Tenement?
the land owner benefited by the easement
77
Who is the Servient Tenement?
the land owner burdened by the easement
78
How can an easement be modified?
Through technology in the manner, frequency and intensity. look to the grantor's intent
79
Define an easement in gross.
no dominant land affected
80
Define an appurtenant easement.
runs with the land & transfers with land
81
How can an easement be terminated through abandonment?
nonuse of easement, there is an intent to relinquish or purpose inconsistent with future existence
82
How can an easement be terminated through condemnation?
The gov takes it for public use and pays FMV
83
What are CC&Rs?
Covenants, Conditions and Restrictions?
84
What is title insurance?
getting a company to guarantee a deed, these come with many restrictions
85
What is a wild deed?
a deed recorded outside the chain or a late recording.

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