property pt3 Flashcards
real covenants
must :
- in writing
- intent to run with land
- touch and concern land
(concerning the value and use of land) - notice
(actual, inquiry, record) - horizontal privity
transaction made in the context of a land transaction (usually subdivision)
at time covenant was formed, the original parties have to have shared some interest in the land independent of the covenant
- vertical privity
consensual voluntary, transfer of title or possesion
requires you to receive property in a non hostile way
remedy; money
equitable servitude
promise between parties to do or not do something on land is called an equitable servitude when it is enforced in equity by an injunction. promising party’s right to enforce the benefit, or duty to be bound by the burden of a servitude will run to the party’’s successor in interest if following requirements are met
- in writing
- intent to run
- touch and concern land
- notice required for burden to run
remedy - injunction
implied covenants
- when a (1) developer (2) demonstrates a common plan or scheme of restrictions
- existence of the common scheme triggers the conclusion that a covenant applies uniformly in the community
- notice
easement by estoppel
easement by estoppel
- C** onduct by owners of the serivent estate typically the express or implied grant of license to cross or otherwise access the servient estate
- **A* detrimental change in position by another party made in
- Reasonable reliance
easement by prior use
- implied by prior use
UCAN
- **unity**
- must have been a unity of ownership of the two parcels; means once was one whole property'
- **continuous**
- use must have continuous at the time the parcels were separated
- **apparent**
- when the parcels were separated one of the parcels visibly or apparently made some use of the other parcel
- **necessary**
- continued use of the quasi easement must be **reasonably necessary** to the owner of the parcel claiming the nenfit of the easement
implied by necessity
-
implied by necessity (NULL)
- neccesary
- easement must be strictly necessary for the landlocked parcel to reach road; no other means of access - STRICT
- unity
- there must be unity of ownership of the land that later become the dominant and servient parcels
- landlocked
- owner of this land must transfer a part of the larger piece pof land in a way that creates a property
- neccesary
easement by presciption
-
easement by prescription
- same elements as adverse possesion
continuous
hostile
adverse
notorious
going on for statutory time
use instead of possess
no need for exclusive
restraints on alienation
power to alienate
- right to transfer sell, assign, or otherwise dispose of property
why is it a positive thing
- fundamental aspect of property ownership and is essential to a functioning real estate market
is there value in regulating the transfer of property
- ideal balance is a legal standard that prohibits unreasonable restraints on alienation but enforces those that are reasonable
how do we know when a restraint on alienation reasonable
- balance the cost of the restraint versus the benefits to individuals and society
discriminatory covenants
- there are discriminatory covenants in chains of title
- fair housing act prevents this and thus will not be upheld
terminating a covenant
abandonment
- requires conduct that demonstrates intent to relinquish the benefit
- tolerating violations of a covenant may be the foundation but it has to be widespread and ongoing for a significant amount of time
- tolerating violations of covenants may be foundation but it has to be widespread and ongoing for a significant amount of time **(nature, number, severity of violation)
estoppel
- owner of dominate estate says or engages in acts that suggest the covenant will not be enforced and servient estate holder detrimentally relies on it
merger
- dominant and servient estate held by the same owner
- release
- express terms
-
prescription
- flagrant violation for statutory period; just as i have been hostily violating covenant for period of time
- relative hardship
- benefit vs. harm analysis
-changed conditions
- difficult to achieve
- must prove intent of covenant and how community has changed
- population, zoning, enforcement of covenant would not achieve the intended goal as examples
equitable conversion
(requires buyers to get insurance before closing)
- legal principle that applies to the sale of real estate
distinguishes between two different types of ownership:
-
equitable title
- moment buyer signs a real estate contract equitable title to the property passes to the buyer
given to buyer once contract is signed
-
legal title
- seller retains legal title in the property until the closing process is complete, after which it also passes to the buyer
retained by seller until closing
once a buyer has both types of title, a buyer becomes the sole owner of the property
exceptions to written real estate contract
- estoppel
exceptions to written real estate contract
-
estoppel
- an oral contract may be recognized and enforced if (a) one partyu makes a promise (b) and another party reaosnable and detrimentally relies on promise
- grounded in equity
- if a person reasonably changed position in reliance on a promise, then it would be unfair to allow the promisior to back out
exceptions to written real estate contract
part performance
- oral agreement for the sale of real property may be enforced if the buyer has detrimentally changed their posistion and taken steps to complete the transaction
- did buyer
- take possession of the property
- pay all or part of the purchase price
- make improvements to property
- possession, payment, improvements
three factor test for exceptions to written real estate contract
- three factor test :
-
does a contract exist
- possession, payment, improvements
- is there detrimental reliance
-
is specific performance required to avoid injustice
- real estate is unique money be adequate
-
does a contract exist
exceptions to written real estate contract
constructive trust
constructive trust
- party has invested money or labor into another property to make a claim for unjust enrichment
- a claimaint must show
- benefit conferred on the title owner
- knowledge of the benefit
- it would be unjust under the circumstances to allow the titled owner to retain all or some of the benefits conferred
- a claimaint must show
