Property Law (Grossman) Flashcards
Easement
A non-possessory interest to use the land of another or restrict the use of the land of another.
Two types:
1) Positive Easements: grants the right to use the land
2) Negative Easements: restricts the right to use the land
Express Easement
An easement created between 2 parties in writing (i.e., in an express agreement)
-How long will it last? However long agreed to based on the writing.
Easement by Necessity
An easement is created b/c it’s necessary for someone to enter the land of another b/c it’s the only way for that person to get off their property (i.e., landlocked)
-This is a question of fact; there must be no other way to get off the property.
-When does it terminate? When the necessity ends.
Easement by Prescription
-This is similar to adverse possession, but instead of gaining title, you get a right to use the property in a specific way.
-Must be open and notorious, adverse and continuous for the statutory period (which is 20 years in FL)
Easement by Implication
This is when an easement is implied by prior use.
-Typical Hypo: you own a big piece of land then subdivide it but you want to keep using the land in a certain way.
Duration of Easements: How long do they generally last?
Easements are generally enforceable forever (they run w/ the land) UNLESS it’s terminated.
Some Ways an Easement May Terminate
1) Abandonment: (1) non-use + (2) an express intent not to return.
2) Merger: you buy the other parcel of land (the servient estate) (can’t have an easement on your own land)
Abandonment of Easement
Someone may abandon an easement if there is:
1) Non-use; plus
2) An expressed intent not to return.
Termination of Easement by Merger
Occurs when the person who owns the dominant estate buys the servient estate (the property burdened by the easement)
-Can’t have an easement on your own land
Easements: Essay Outline
1) Define Easement
2) Describe Positive / Negative Easement
3) Describe the Kinds of Easements (define each and argue)
4) How long will easement be enforceable for?
5) Can it be terminated? (express, necessity, abandonment, merger)
Covenants
Unlike an easement, a covenant is ALWAYS in writing (looks like a contract) and it’s a promise for someone to do or not do something with the land.
-Governed by contract principles.
-How long does it last? It generally runs with land (enforceable against all future grantees)
Elements for When a Covenant Runs w/ the Land
1) Intent (by the parties for it to run w/ the land)
2) Touches and concerns the land (i.e., is the covenant about the use of the property itself?
3) Privity (horizontal and vertical)
4) Notice
-REMEMBER: “PINT”
Breach of Covenant
(Remedies)
1) Sue for damages
2) Seek an injunction (if it’s a restrictive covenant + seeking an injuction = equitable servitude)
Equitable Servitude
A person may seek an EQUITABLE SERVITUDE if someone breaches a restrictive covenant and all the person is seeking is an injunction.
-Restrictive covenant + seeking an injuction = equitable servitude
Equitable Servitude: Definition
An equitable servitude restricts the use of property in a manner that benefits another property, and it is enforceable in equity.
These restrictions, typically outlined in the form of contracts or agreements, are designed to ensure that the property is used or developed in a way consistent with the interests and intentions of the parties involved.
Equitable Conversion
Once you sign a real estate contract, under the doctrine of EQUITABLE CONVERSION the Buyer now acquires equitable ownership and the risk of loss shifts to the Buyer.
-Buyer obtains equitable ownership in exchange for money paid
-Risk of loss shifts to Buyer
-Must be in writing (SOF); list the parties, price, essential terms
Marketable Title
For every real estate K, it’s implied that there’s MARKETABLE TITLE.
-This means the title is free from any liens or encumbrances.
Quitclaim Deed
Says I make no promises about the quality of the title (i.e., Buyer Beware).
-Think “Buyer is quitting his claims to issue w/ title”
Warranty Deed
This includes 6 guarantees/promises regarding the quality of title of the land.
-6 warranties that guarantee the quality of title
-3 Present Warranties:
1) Warranty of Seisin
2) Warranty of Right to Convey
3) Warranty Against Encumbrances
-3 Future Warranties
1) Quiet Enjoyment
2) Warranty of Warranty
3) Warranty of Further Assurances
How do you transfer title?
1) Real Estate Contract
-Discuss K formation; SOF; specific performance
-Equitable Conversion
-Implied marketable title
2) Deed (once signed, Real Estate K merges into deed)
-Define if it’s a warranty or quitclaim deed
-Must be in writing (SOF); need identifiable grantees
-Must be signed by grantor and need 2 witnesses
-Must be delivered from Seller to Buyer (whether it’s “delivered” is based on intent)
-Acceptance of deed is presumed by Buyer
-Need legal description of property
Real Estate Contract
-Discuss K formation; SOF; specific performance
-Equitable Conversion
-Implied marketable title
Deed
Once signed at closing, the real estate K merges into deed.
-Define if it’s a warranty or quitclaim deed
-Must be in writing (SOF); need identifiable grantees
-Must be signed by grantor and need 2 witnesses
-Must be delivered from Seller to Buyer (intent)
-Acceptance of deed is presumed by Buyer
-Need legal description of property
3 Present Warranties
If these are breached, they are breached on the day of closing (i.e., when Seller gives title to Buyer):
1) Warranty of Seisin - A promise that the seller owns the land.
2) Warranty of Right to Convey - A promise that the seller has legal right to sell the land.
3) Warranty Against Encumbrances - A promise that there are no encumbrances on the land.
Warranty of Seisin
A promise that the Seller owns the land.
Warranty of Right to Convey
A promise that the Seller can sell the land.
Warranty Against Encumbrances
A promise that there are no encumbrances affecting the land.
