Property Jawn Flashcards
1
Q
Language is ambiguous then court presumes tenancy in common
A
James v. Taylor
2
Q
Partition by sale: forced judicial sale with co-tenants dividing proceeds, partition by sale is disfavored by courts
Economic cost-relevant but not a determinable factor
A
Arkland v. Harper
3
Q
Partition by sale only done when:
A
1) partition in kind is not convenient
2) sale will result in promotion of one parties interest
3) sale will not prejudice other party
4
Q
Partition in Kind
A
physically divides land held in joint tenancy
5
Q
Partition by Sale
A
land is sold and proceeds are distributed
6
Q
A joint tenant may lease to 3rd party without severing the joint tenancy
A
Tenhet v. Boswell
7
Q
General Rule: co-tenants must shoulder a proportional share of operating and maintenance expenses for the property even if one co-tenant had not had possession while the others did
Majority Rule: all CTs have right to occupy all of the property and a CT in possession does not owe any rent to a CT out of possession absent an ouster
Minority Rule: court may impose a credit to a CT who has never possessed the property, and where other CT has lived in the property, under certain circumstances as a matter of equity
A
Esteves v. Esteves
8
Q
Ouster
A
CT who takes affirmative steps to disallow another CT from occupying the property
9
Q
Professional degree not marital property
A
Guy v. Guy
10
Q
Migrant farmers case; property owner cannot exclude medical provider from property when medical provider is called to assist workers
property rights are relative; they can be limited
No right to exclude if it interferes with another’s human dignity
A
State v. Shack
11
Q
Right to exclude very important even when no damages occurred: cant allow a pattern of intentional trespass (Mobile Home Case)
A
Jacque v. Steenberg
12
Q
Private nuisance law; use by one must not unreasonably impair use of anothers
A
Prah v. Maretti
13
Q
Spite fence doctrine: need malice intent
A
Sundowner v. King
14
Q
Private Nuisance Law
A
when one landowner’s use of his property unreasonably interferes with another’s enjoyment of his property
15
Q
Without sufficient reason to destroy; court will stop destruction if it goes against public policy
A
Eyerman v. Mercantile Trust
16
Q
Lose property rights over cells once they are taken out of your body
A
Moore v. Regents of University of California
17
Q
Legal positivism; rights to land ownership exist only to the extent that the government recognizes them (Indian Case)
A
Johnson v. M’Intosh
18
Q
“Certain Control” brought under control and power where controller does not intend to let them go (heavy reliance on labor theory)–2 cases
A
Pierson v. Post
State v. Shaw
19
Q
Babe Ruth baseball case; hard to determine complete control law tries to favor both innocent parties
guy catches ball, unlawful acts of others cause him to lose ball, other lawful guy picks up ball. Court ruled ball belongs to both of them
A
Popov v. Hayashi
20
Q
Unreasonableness defense to Land use restrictions
A
Nahrstedt v. Lakeside Village
21
Q
Unreasonable Restrictions
A
Restrictions are presumed reasonable unless:
1) restriction is arbitrary (based on completely random selection),
2) burden of restriction substantially outweighs its benefits,
3) violates a fundamental public policy
22
Q
abandonment defense to land use restrictions; person opposing restriction must prove that a reasonable person would determine restriction has been abandoned
A
Fink v. Miller
23
Q
2 part test for determining abandonment
A
1) Analyze violations as to their number, nature, and severity; if these elements would lead a reasonable person to believe restriction has been abandoned then no need to analyze further. If still unsure about abandonment go to 2
2) Consider prior enforcement of restriction and possible realization of benefits. Is it still possible to realize a substantial degree of the benefit intended
24
Q
Changed Conditions; firehouse case,
A
Vernon Fire Department v. Connor
25
What must party prove when claiming changed conditions?
1) original purpose materially altered or destroyed by changed conditions AND
2) substantial benefit to the community no longer applies
26
King of your own castle when it relates to conditions inside your own home
When others are not only undisturbed by, but completely unaware of, the presence of items inside the home, the balance of benefit and burden is rendered disproportionate and unreasonable, rebutting any presumption of validity
Fountain Valley v. Department of Veterans
27
Adverse Possession
1) Actual- use the land in the same way a reasonable owner would use the land
2) Exclusive- possession cannot be shared with the owner or with the public in general
3) Open and Notorious- possession must be visible and obvious
4) Adverse and Hostile- means without permission
5) Continuous- possession must be as continuous as a reasonable owner's would be, given the character, nature, and location of the land
6) For the statutory period- set forth by statute typically 10,15, or 20 years
28
Good Faith; role of mistake-good faith mistake of whom owned the land
Gurwit v. Kannatzer
29
Bad Faith; adverse possessor must acknowledge that they are not the true title holder
Fulkerson v. Van Buren
30
Most jurisdictions do this; state of mind irrelevant, attempting to ascertain someone's state of mind is guesswork at best and impossible at worst
Tioga v. Coal
31
Tacking is allowed as long as successive occupants are in privity
Howard v. Kunto
32
Privity
successive occupant has to use the property in the same nature and use as the prior occupant
33
finder of lost property has right to property superior to anyone but "true owner." Kahan says should be "prior possessor" impossible to determine "true owner."
Armory v. Delamarie
34
Property the owner no longer wants
Abandoned; the finder has an absolute right to the property
35
property the owner intentionally places somewhere and forgets about
Mislaid; goes to the owner of the premises where property is found (usually)
36
Property is money concealed by the owner so long ago that the owner cannot be found
Treasure Trove; finder has right against all but rightful owner
37
mislaid property; same rule as McAvoy; property goes to owner of premises not founder
Benjamin v. Lindner Aviation
38
mislaid property; chattel belongs to the owner of the locus in quo (scene of the event), not the finder. Rule gives the item to the person most likely to ensure its return to the true owner
McAvoy v. Medina
39
lost property; if a finder finds an object on an owner's real property--and
1) the owner has no knowledge of property,
2) has never occupied the property
3) was not in possession of the real property when object was found
Hannah v. Peel
40
abandoned; moving manure case, finder of abandoned property acquires right to that property and has a reasonable time to fully collect and transport that property
Haslem v. Lockwood
41
Discovery rule; a cause of action will not accrue until the injured party discovers, or should have discovered, facts which form the basis of a cause of action
O'keefe v. Snyder
42
Discovery Rule burden shift
burden shifts from adverse party satisfying AP elements to true owner
- -true owner has to give some kind of affirmative acknowledgment that the true owner was trying to locate property but has no idea where the property is (owner must make claim know)
- -adverse possession time begins when the true owner knows or should have known that the property has been taken
43
defining public use, defines public use as anything rationally related to a legitimate public purpose
Hawaii Housing v. Midkiff
44
scope of public use, economic development as a public purpose so long as it will form a whole greater than the sum of its parts taking from one private owner to another in furtherance of economic development constitutes a public purpose
Kelo v. City of New London
45
Eminent Domain
government's power to take private property. As long as government is pursuing a legitimate end, it has broad discretion to determine the means used to accomplish that end
46
Takings Clause of Fifth Amendment
nor shall private property be taken for public use, without just compensation
47
Overturned, established concept of regulatory taking--held for first time a taking can go too far
Pennsylvania Coal v. Mahon
48
3 part balancing test whether a regulatory taking occurred
Penn Central v. New York
49
Penn Central Balancing Test
1) economic impact of the regulation on the claimant
2) extent to which the regulation has interfered with distinct investment backed expectations
3) character of government action
*NOTE-before doing this test look to see if there is a per se taking
50
Physical invasion; permanent physical occupation = per se taking
Look at extent of which the physical occupation destroys the right to:
--possess
--use
--dispose
Lorretto v. Teleprompter
51
100% economic loss, owner of real property has sacrificed all economically beneficial uses = taking
Lucas v. SC council
*NOTE- test rarely applies because nearly impossible to lose all economic use
52
the immediate transfer of property rights from the donor to the donee without any payment or consideration
Gifts
53
O conveys "to A and THE HEIRS OF HIS BODY "
Transferor retains a reversion (O has a reversion)
*must have heirs of his body language
Fee Tail
NOTE- most jurisdictions do not recognize fee tail so will assume fee simple absolute
54
No future interest accompanies this freehold estate
Grants absolute ownership (all rights in bundle of sticks)
O conveys "to B"
O conveys "to B forever"
O conveys "to B and his heirs"
Fee Simple Absolute
NOTE- unless words of limitations are used in conveyance courts will assume Fee Simple Absolute
55
O conveys "to D for six months"
Term of Years
56
```
estate that is limited by time of your life or life of another
person dies estate terminates
"for life"
"until death"
"while alive"
--alienable
--NOT devisable
--NOT descendible
```
Life Estate
57
An estate or future interest can be transferred in what 3 ways
1) Deed
2) Will
3) Intestate Succession (person dies without a will)
58
Estate can be sold or given away at any time--right to transfer
Freely Alienable
59
Estate can be transferred by will at death
Devisable
60
Estate can pass by the laws of intestate succession if the owner dies without a will
Descendible
61
Estate is....
a present possessory interest
62
Future interest is...
a right to future possession
63
```
A fee simple estate that automatically ends when a certain event or condition occurs
"so long as"
"while"
"until"
"during"
Future interest that follows this estate is always a possibility of reverter
--alienable
--devisable
--descendible
```
Fee Simple Determinable
64
The future interest retained by the transferor who holds a fee simple absolute but conveys a fee simple determinable
I.E. only goes with fee simple determinable conveyance
Possibility of Reverter
65
Fee simple estate created in a transferee that may be terminated at the election of the transferor when a certain condition or event occurs
Estate does NOT end automatically when condition or event occurs
If condition happens the transferor must take action--
Right of re-entry only future interest that goes with this
"provided that"
"but if"
"on condition that"
--alienable
--devisable
--descendible
Fee simple subject to a condition subsequent
NOTE-if ambiguous language, meaning the conveyance looks like it could be a fee simple determinable or fee simple subject to condition, you assume subject to a condition. SEE Mahrenholz v. County Board of School Trustees
66
Defeasible fee simple estate created in a transferee that is followed by a future interest in another transferee
O conveys "to B provided that the land is used as a church, then to C."
future interest held by a third party not the transferor i.e. right to take property rests with C not O
when the condition happens property automatically goes to 3rd party
--alienable
--devisable
--descendible
Fee Simple Subject to an executory limitation
67
Future interests created in a transferee can only be 1 of 2 things...
Remainder or
| Executory Interest
68
A future interest in a transferee that 1) is capable of becoming possessory immediately upon the expiration of prior estate AND 2) does not divest (cut short or take away) anyone of anything
O conveys "to B for life, then to D if D becomes president"
Remainder
69
Four types of Remainders...
1) Indefeasibly vested remainder
2) Vested remainder subject to divestment
3) Vested remainder subject to open
4) Contingent remainder
70
A remainder is VESTED if 2 things happens:
1) it is created in an ascertainable person AND
2) it is not subject to a condition precedent other than the natural termination of the prior estate--i.e. don't have to do anything to gain possession
71
A remainder in an identifiable person that is certain to become a possessory estate
Indefeasibly Vested Remainder
72
A remainder that is vested, but is subject to a condition subsequent
"O conveys "to B for life, then to D, but if D does not survive B, then to E"
Vested Remainder subject to divestment
73
```
Remainder held by one or more living members of a group or class that may be enlarged in the future
O conveys "to B for life, then to D's children"
```
Vested remainder subject to open
74
If a remainder is not vested, then it must be...
Contingent
75
A remainder is ___ when it is either 1)given to an unascertainable person OR 2)subject to a condition precedent
Contingent
76
A future interest in a transferee that must divest another estate or interest to become possessory
In other words, a future interest, held by a third person, that is not yet a party, that cuts off another's interest or reduces it
Executory Interests
NOTE- if future interest is not a remainder then its an executory interest
77
Two types of executory interests...
1) Springing Executory Interest
| 2) Shifting Executory Interest
78
Executory interest follows the transferor
| O conveys "to E when E marries"
Springing Executory Interest
79
Executory interest follows the transferee
Shifting Executory Interest
80
Rules Against Perpetuities (RAP) you do a RAP analysis when either of these interests are present..... (3 of them)
1) Contingent remainders
2) Executory Interests
3) Vested Remainder subject to open
81
Perpetuities period is how long...
21 years + gestation
RULE- an interest is valid only if you can logically prove that it will either vest or forever vail to vest within the perpetuities period
82
RAP definition:
no interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest
83
RAP analysis steps (5 steps)
1) identify if the interest is subject to the rule (contingent remainders, executory interests, or vested remainder subject to open)
2) identify the lives in being at the time of the conveyance
3) Ask yourself, can anyone be born, or can anything happen, that would affect the vesting of the conveyance? (anything except the given condition)
4) Kill the lives in being
5) Could ____ happen (anything identified in 3) 21 years after the deaths of ____ (any of the lives in being identified in 2)
- -if yes then condition is void
- -if no then condition is valid
84
4 categories of found chattels
1) Lost
2) Mislaid
3) Abandoned
4) Treasure
85
property is ___ when the owner unintentionally and involuntarily parts with it
Lost
86
property is ___ when the owner voluntarily and knowingly places it somewhere, but then unintentionally forgets it
Mislaid
87
property is ___ when the owner knowingly relinquishes all right, title, and interest to it
Abandoned
88
property is ___ when the owner concealed it in a hidden location long ago
Treasure Trove
89
Key characteristic of concurrent ownership
each co-owner or co-tenant has the right to use and possess the entire property
90
Each tenant in common has an undivided, fractional interest in the property
each tenant may transfer interest to another person
--freely alienable
--devisable
--descendible
each has right to use and possess whole property
Tenancy in Common
91
5 Theories of Property
1) Protect first possession
2) Encourage Labor
3) maximize societal happiness (utilitarianism)
4) ensure democracy
5) Personhood
92
4 rights in bundle of sticks
1) Right to use
2) right to transfer
3) right to destroy
4) right to exclude
93
Private Nuisance elements
1) Intentional act
2) Non-tresspassory
3) unreasonable (harm outweigh benefit) substantial interference with the use of enjoyment of anothers land
94
Elements of Inter Vivos Gift
- -Donative Intent
- -Delivery
- -Acceptance
95
3 types of Delivery
1) Manual: donor physically transfers possession of the item to the donee
2) Constructive: donor physically transfer to the donee an object that provides access to the gifted item, allowed when manual delivery is impracticable
3) Symbolic: donor physically transfers to the donee an object that represents or symbolizes the gifted item
96
elements of gift causa mortis
1) Donative intent
2) Delivery
3) Acceptance
4) Donor's anticipation of imminent death
97
4 nonfreehold estates
1) Term of Years Tenancy
2) Periodic Tenancy
3) Tenancy
4) Tenancy Sufferance
98
fixed duration agreed upon in advance
| tenant's right automatically expires at end of term
Term of Years Tenancy
99
automatically renewed for successive periods unless the landlord or tenant terminates
termination of tenancy requires advance notice
Periodic Tenancy
100
no fixed ending point
| continues only so long as both the landlord and tenant desires
Tenancy at Will
101
created when a person who rightfully took possession of land continues in possession after the right ends (wrongful occupancy)
Tenancy at Sufferance
102
4 factors of Constructive Eviction
1) plaintiff intended that defendant no longer enjoy the premises, which intent the trier of fact could infer from the circumstances
2) plaintiff committed a material act or omission that substantially interfered with use and enjoyment of the premises for their leased purposes
3) plaintiff's act or omission permanently deprived defendant of the use and enjoyment of the premises
4) defendant abandoned the premises within a reasonable period of time after the act or omission
103
constructive eviction case; constructive eviction occurs when the tenant leaves the leased premises due to conduct by the landlord which materially interferes with the tenant's beneficial use of the premises (abortion case; dr had office where he performed abortions; fun police protesters disturbed his business)
Fidelity Mutual Life Insurance Co. v. Kaminsky
104
a promise by landlord that the premises is habitable--it protects residential tenants from defective housing conditions
Implied Warranty of Habitability
105
case that moves away from caveat emptor, (duty will be on landlord now and not buyer) landlord must maintain bare living requirements and that the premises are fit for human occupation
Wade v. Jobe
106
3 ways to terminate a tenancy
1) surrender
2) abandonment
3) eviction
107
types of termination where tenant and landlord mutually agree to end the lease term early
Surrender
108
type of termination when tenant vacates the leased property without justification and without any present intention of returning and tenant defaults in the payment of rent
Abandonment
109
type of termination where landlord terminates the tenancy
Eviction
110
4 implications regarding the bundle of stick rights every law student should know according to Kahan Jawn
1) property rights are defined by government
2) property rights can be divided
3) property rights are not absolute
4) property rights evolve as the law changes
111
Spite Fence Doctrine Elements
1) Intent (must be malicious action)
| 2) Useless structure (objective test look at facts)
112
2 possible limitations on right to use
1) Spite Fence Doctrine
| 2) Private Nuisance Doctrine
113
4 most important justifications for adverse possession
1) preventing frivolous claims
2) correcting title defects
3) encouraging development
4) protecting personhood
114
Adverse Possession: Define Actual
physically use the land in the same manner that a reasonable owner would, given the character, location, and nature of land
115
Adverse Possession: Define Exclusive
possession not shared with owner or general public
116
Adverse Possession: Define Open and Notorious
possession must be visible and obvious, so that if the true owner would make a reasonable inspection of the land he would become aware of the adverse claim
117
Adverse Possession: Adverse and Hostile
without true owners permission
118
Adverse Possession: Continuos
fits the nature and character of the land
| NOTE- do not need to be on land everyday if that would not fit how the land is used
119
4 different ways to acquire rights in chattels
1) capture (pierson, shaw)
2) find (Armory, Mcavoy, Peel_
3) Adverse Possession (O'keefe)
4) Gift (Guren)
120
Under the law of bailments, a finder is obligated to ____ and ____
1) keep the chattel safe AND
| 2) return it to prior possessor on demand
121
3 types of bailments
1) those for mutual benefit of both the bailor and bailee
2) those for the primary benefit of the bailee
3) those for the primary benefit of the bailor
NOTE- bailee is the founder of chattel, bailor is the owner
122
Under what type of bailment does the bailee have the duty to take reasonable care of the property
mutual benefit of both bailor and bailee
123
Under what type of bailment does the bailee have the duty to take extraordinary care of the property
primary benefit of the bailee
124
Under what type of bailment will the bailee only be liable if property is damaged due to gross negligence or bad faith
primary benefit for the bailor
125
Name the type of freehold estates
1) Fee Simple Absolute
2) Life Estate
3) Fee tail
4) Fee simple determinable
5) Fee simple subject to condition subsequent
6) Fee simple subject to an executory limitation
126
How are freehold estates categorized?
duration--how long they exist
127
O conveys "to B"
O conveys "to B forever"
O conveys "to B and his heirs"
Fee simple absolute
If the words of conveyance or devise are ambiguous, the presumption is to favor a fee simple because a fee simple is the most marketable type of freehold estate.
128
Unless a grantor clearly indicates otherwise, the law presumes a grantor conveys a fee simple absolute. Case where Will was ambiguous as to being left to plaintiff or dead lady's nieces. If a deed or will is ambiguous, the court will interpret it in accordance with transferor's intent, if intent can not be determined then fee simple absolute.
White v. Brown
129
common law doctrine that imposes a duty on the life tenant to use the property in a manner that does not significantly injure the rights of future interest holders
Waste
130
Case where land was to be passed down through generations. Kids wanted to tear down old shitty barn, another kid who held future interest brought suit saying cant do that. Life tenants can alter the land so long as not to offend waste doctrine. Waste limitation only applies where the alterations reduce the value of the property
Woodrick v. Wood
131
Case that distinguishes between fee simple determinable and fee simple subject to a condition subsequent. "land to be used for school" case. In face of ambiguity between fee simple determinable and fee simple subject to a condition subsequent court will go with condition subsequent
Mahrenholz v. County Board Of School Trustees
132
Ruling that a person holding a right of re-entry is obligated to take affirmative steps in a reasonable amount of time to re-take the property. Condition breach occurred 1905 and didn't try to re-take until 1960
Metropolitan Park v. Rigney
133
each tenant has an undivided, fractional interest in the property
each has the right to use and possess the whole parcel, even if his fractional interest is smaller than the interests of other
Tenancy in Common
134
Joint tenancy created only when the four unities of 1)___, 2)_____, 3)_____, and 4)_____ are present
1) Time: all joint tenants must acquire their interests at the same time (A and B can not obtain interests on different days)
2) Title: they must acquire title by the same instrument (A and B cannot receive interest by different deeds)
3) Interest: they must have the same shares in the estate, equal in size and duration (A cannot have 2/3 interest and B 1/3 interest)
4) Possession: must have equal right to possess, use, and enjoy the whole property
NOTE-if any of these 4 are missing then tenancy in common is created
135
Fair Housing Act
Cannot refuse to rent or sell based on race, color, religion, sex, familial status, or national origin.
136
Neithamer v. Brenneman Property Services, Inc.
HIV case that gives us the burden shifting framework for a prima facie case of discrimination.
137
What must P show to establish a prima facie case of discrimination?
1. ) That he is a member of a protected class, AND that D knew or suspected that he was. 2.) That he applied and was qualified to rent the property in question.
3. ) That his application was rejected.
4. ) That the property in question remained available thereafter.
138
Burden Shifting Framework for Fair Housing Act
1. ) On renter to prove prima facie case.
2. ) On landlord to give legitimate reason.
3. ) On renter, if landlord provided a legitimate reason, to show the reason was pretext or material facts are in dispute.
139
Exemptions to the Fair Housing Act
1. ) Owner-Occupant: does not apply to units in dwelling occupied by no more than four families, if the owner occupies one of such living quarters;
(2) Non-Business Purpose: any single family house sold or owned by an owner if he does not own more than 3 houses and does not use a real estate broker.
140
Fair Housing Council of San Fernando Valley v. Roomate.com, LLC.
The FHA does not apply to lessors who are looking to rent a room in his or her residential unit because
(1) the right to associate implies the right to not associate and
(2) the constitution protects an individual's right to enter into and carry on intimate and private relationships.
141
What are the 4 nonfreehold estates?
1. ) Term of Years Tenancy
2. ) Periodic Tenancy
3. ) Tenancy at Will
4. ) Tenancy at Sufferance
142
Describe a Term of Years Tenancy.
Fixed duration agreed upon in advance.
Tenant's rights automatically expires at end of term.
Common Uses: Commercial Leases, Residential Leases
143
Describe a Periodic Tenancy.
Automatically renewed for successive periods unless the landlord or tenant terminates.
Termination of tenancy requires advance notice.
Advance notice = the period of time between rent payments; the longer the lease, the more advance notice required.
Common uses: month-to-month residential leases.
144
Describe a Tenancy at Will.
No fixed ending point. Continues only so long as both the landlord and tenant desire. Magic words = "so long as each of us wish."
Can arise by agreement or implication - very informal.
Traditional rule: no advance notice.
Modern rule: advance notice.
Automatic Termination if, death, tenant abandons property, landlord sells the property.
145
How big is Jimbo's jawn?
Slightly above average, bih.
146
Describe a Tenancy at Sufferance.
Created when a person who rightfully took possession of land continues in possession after the right ends (wrongful occupancy.)
Holdover tenant = the person who wrongfully continues in possession.
147
Two Landlord Options Under Modern Law in regards to a Tenancy at Sufferance?
1.) treat tenant as trespasser and evict;
2.) Some States allow one or two: Landlord may charge double rent during holdover period.
Landlord may renew tenancy for up to one year.
148
Kajo Church Square, Inc. v. Walker
D's tried to enforce a leasehold for life. Court rejects.
Enforcement: only the four types of non freehold estates will be enforced by a court, even if there is ample evidence and that the parties intended something different.
149
In regards to delivering possession of real property, what is the English rule vs. the American rule?
English rule: except otherwise agreed by landlord and tenant, there is a breach of the landlord's obligation if a third person is improperly in possession of the leased property on the date the tenant is entitled to possession and the landlord does not act promptly to remove such person and does not in fact remove him within a reasonable amount of time.
American rule: the landlord merely covenants that the possession will not be withheld by himself or by one having paramount title.
150
What happened in Keydata Corp. v. United States?
The court adopted the English rule which requires that when the lease is silent on that point, the landlord deliver actual possession of the premises at the beginning of the term. The landlord-tenant agreement can contract around English rule.
151
What do Housing Codes do?
Require landlord to meet certain minimum living standards before leasing premises.
152
What did In Re Clark illustrate?
Case illustrates poor living conditions in Philly in late 1980s.
Policy: how could this happen?
- unequal bargaining power;
- standard lease forms;
- non-enforcement of housing codes;
- tenants were still subject to stay in the home and pay rent, even when lawsuit was initiated;
- lack of resources to take legal action.
* led to a paradigm shift giving power to tenants.
153
Why is the rule for seller's duty to disclose different in Stambovsky than the Modern rule?
*HINT- modern rule added something (made rule broader)
Stambovsky: seller has a duty to disclose where the SELLER CREATES a material condition that impairs.....
Modern: seller has a duty to disclose material conditions... (EVEN CONDITIONS THE SELLER HIMSELF DID NOT CREATE)
154
Modern duty to disclose rule for sellers of residential property
seller of residential property is obligated to disclose defects he knows about that
(a) materially affect the value of the property AND
(b) are not known or readily discoverable by the buyer
*BONUS modern rule is broader than Stambovsky rule; Why?
155
Two types of easements
1) Express Easements (owner's consent)
| 2) Easements Imposed as a matter of law (without owner's consent)
156
4 types of easements imposed as a matter of law
1) Implied Easement by prior existing use
2) easement by necessity
3) prescriptive easement
4) easement by estoppel (or irrevocable license)
157
Elements to show implied easement by prior existing use: (Van Sandt v. Royster--connecting sewer lines to main sewage system case)
1) severance of title to land held in common ownership
2) an existing apparent, and continuous use of one parcel for the benefit of another at the time of the severance
3) reasonable necessity for that use
158
Different approaches to what constitutes "necessity" with regard to easements
Traditional-- strict necessity required; only when the owner has NO legal right of access to her land
Majority-- reasonable necessity; the easement must be for beneficial or convenient for the use of the dominant parcel but not absolutely necessary (Van Sandt)
Berge Standard-- middle ground between the two, lack of reasonably practical access
necessity exists when the owner has no reasonably consistent practical means of reaching his property
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Elements of Prescriptive Easement (just as title to land may be acquired by adverse possession, and easement may be acquired by similar conduct)
1) Adverse use of another's land
2) Continuous and uninterrupted adverse use for 10 years
3) adverse use was either; known to the owner or was so open, notorious, and visible that a reasonable owner would have noticed
4) reasonable identification of starting point, ending point and width of the property and the purpose of its use
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Elements of Easement by estoppel
NOTE- most jurisdictions agree there is no functional difference between an easement by estoppel and an irrevocable license
1) a property owner grants another permission to use the property,
2) the other party has reasonable grounds to believe the permission will not be revoked and
3) the other party, relying on this permission, incurs costs or otherwise substantially changes position by acting in a way that is not easily undone
