Property - Servitudes, Land Conveyance, Water Rights Flashcards
An easement is the _____ of a ________ interest that entitles is hold to
grant; nonpossessory; some form of use or enjoyment of another’s land.
The land on which the easement resides (the land that “bears the burden”) is called the
servient tenement.
Most easements are (affirmative/negative).
affirmative
Negative easements are generally recognized in only four categories:
LASS(S) (L) light (A) air (S) support (S) stream water from an artificial flow (S) minority of states: scenic view
Negative easements can only be created _____ by a
expressly; writing signed by the grantor.
The two types of easements are
(1) easement appurtenant
(2) easement in gross
An easement appurtenant arises when the easement benefits its holder in
his physical use or enjoyment of his property.
An easement appurtenant requires ______ parcel(s) of land.
two.
The parcel of land that is benefited by the easement is called the
dominant tenement.
An easement is in gross it it gives its holder only
some personal or pecuniary advantage NOT related to his use or enjoyment of his land.
E.g., right to fish or swim in another’s pond, right to place a billboard on another’s land
An easement in gross requires ______ parcel(s) of land.
one.
An easement appurtenant _________ with the dominant tenement, regardless of whether
passes automatically; it is mentioned in the conveyance.
An easement is gross (is/is not) transferable unless it is for _______ purposes
is not; commercial
The four ways an affirmative easement can be created are
PING (P) Prescription (like adverse possession, only the requirements of exclusivity and continuity are relaxed) (I) Implication (N) Necessity (G) Grant
An easement to endure for more than one year must _________ that complies with ______.
be in writing; formal elements of a deed.
Called a “deed of easement”.
An easement is created by implication (also known as an easement implied from existing use) if
(1) the previous use was apparent
(2) the parties expected that the use would continue because it is reasonably necessary to the dominant tenement’s use and enjoyment
An easement is created by necessity in
a landlocked setting.
An easement of right of way will be implied by necessity if a grantor conveys a portion of his land with
no way out except over some part of the grantor’s remaining land.
An easement is created by prescription if
COAH - just like adverse possession
(C) continuous use for the given statutory period
(O) open and notorious
(A) actual use
(H) hostile use w/o servient tenement owner’s consent
The scope of an easement is determined by
the terms of the grant or conditions that created it.
The ways to terminate an easement are
END CRAMP (E) Estoppel (N) Necessity (D) Destruction of the servient land (C) Condemnation of the servient estate (R) Release (A) Abandonment (M) Merger/unity of ownership (P) Prescription
An easement is terminated through estoppel when
the servient owner materially changes position in reasonable reliance on the easement holder’s assurance that the easement will not be enforced
An easement is terminated by necessity if
the easement was created by necessity and the need ends.
**Unless an easement attributable to a necessity was created by an express grant.
An easement is terminated by destruction if
the servient land was destroyed other than through the willful conduct of the servient owner.
An easement is terminated by condemnation through
eminent domain.
An easement is terminated by release if
the easement holder gives the servient owner a written release.
An easement is terminated by abandonment if
the easement holder demonstrates by PHYSICAL ACTION the intent to never use the easement again.
**This must be very apparent, words alone are NOT enough.
An easement ______ be terminated by long periods of non-use.
cannot.
An easement is terminated through merger/unity of ownership if
title to the easement and title to the servient land become vested in the same person AND the duration of the servient estate is equal to or longer than the dominant estate.**
**E.g., if the same person owns the servient tenement as a life estate and the dominant tenement as a fee simple, merger does NOT attach.
An easement is terminated by prescription if
the servient owner interferes with the easement in accordance with the elements of adverse possession (COAH).
**Look for the servient owner placing obstacles that make it impossible for the easement to be used.
A license is
a mere privilege to enter another’s land for a delineated purpose.
Licenses _______ subject to the statute of frauds.
are not.
Licenses are _____ removable unless
freely; estoppel applies to bar revocation
Estoppel will apply to bar revocation of a license only when the licensee has
invested substantial money or labor or both in reasonable reliance on the license’s continuation.
An oral grant of an easement that violates the Statute of Frauds is treated as a
freely revocable license.
**This is the “neighbors talking at the fence” classic exam scenario.
Tickets to shows create
freely revocable license.
A profit is
an entitlement to enter the servient land and take from it the soil or some substance of the soil, like minerals, oil, or timber.
A profit shares all the rules of
easements.
A convenant is a
promise to do nor not do something related to land.
The difference between covenants and easements is that covenants
are not a grant of a property interest, but instead a CONTRACTUAL limitation or promise regarding land.
Negative covenants are also called
restrictive covenants.
Covenants can be (affirmative/negative/both)
both affirmative or negative.
The difference between a covenant and an equitable servitude depends on
the basis of the remedy plaintiff seeks.
$$ - covenant, injunction - equitable servitude
If a plaintiff is seeking money damages, the promise regarding land is treated as a (covenant/equitable servitude).
covenant.
If a plaintiff is seeking an injunction, the promise regarding land is treated as a (covenant/equitable servitude).
equitable servitude
In covenant parlance, one tract is ______ by the promise and another is ______.
burdened; benefited
A covenant runs with the BURDENED tract and is capable of binding successors if
WITHN (W) Written promise (I) Intent - original parties intended that the covenant would run** (T) Touch and concern the land (H) Horizontal AND Vertical Privity (N) Notice
**Courts are generous in finding requisite intent
A covenant or equitable servitude “touches and concerns the land” if the promise
affects the parties’ legal relations as landowners.
**Covenants to pay money to be used in connection with the land (like HOA fee) and covenants not to compete touch and concern the land.
Horizontal privity refers to the nexus between the ________ parties and requires that they be in
original; succession of estate.
For the original parties to have been in succession of estate, they must have been one of only three possibilities:
GLM
(1) grantor-grantee
(2) landlord-tenant
(3) mortgagee-mortgagor
**This is very hard to establish and is a likely reason that many covenants don’t run.
Vertical privity refers to the nexus between
successive parties.
Vertical privity requires some _________ nexus and will only be absent if a successor acquired her interest through
non-hostile; adverse possession.
The “notice” requirement for covenants and equitable servitudes to run with the land requires that the
successor had notice of the promise when she took.
A covenant runs with the BENEFITED tract and grants standing to successors if
WITV (W) Written promise (I) Intent of original parties to run with the land (T) Touches and Concerns the land (V) Vertical privity
**Note the absence of horizontal privity and notice.
An equitable servitude runs with either the burdened OR benefited tract if
WITNes
(W) Written promise
(I) Intent of original parties to run with the land
(T) Touches and Concerns the land
(N) Notice to successors of BURDENED land
A court will imply a reciprocal negative servitude under the “general or common scheme” doctrine if
(1) a subdivider had a general scheme of residential development which included the defendant’s lot
(2) the defendant had notice of the promise contained in prior deeds
The three forms of notice for the “general or common scheme” doctrine are
AIR
(A) Actual
(I) Inquiry
(R) Record
Inquiry notice applies where
the neighborhood conforms to the common restriction and if the party had inquired they would have found out.
Record notice applies where
the buyer should have known based on publicly recorded documents.
There is a split of authority over record notice:
(1) some courts say that a buyer has record notice of deeds transferred by a COMMON GRANTOR
(2) other courts do NOT impute record notice through the common grantor theory
The only equitable defense to enforcement of an equitable servitude is the ________ doctrine.
changed conditions
Under the changed conditions defense to an equitable servitude, the changed circumstances must be
so pervasive that the entire area has changed.
**The entire area must be basically changed b/c courts want to avoid a “domino” effect.
An attempt to convey an easement appurtenant apart from the dominant tenement is
ineffective.
A bonafide purchaser of a servient parcel that does not have notice of the easement takes
free and clear of the easement.
For covenants and equitable servitudes to run with the land, notice is not required if the subsequent purchaser is not a ___________.
bonafide purchaser (e.g. a devisee does not need notice of the servitude in order to it to run)
Adverse possession is established by
COAH (C) Continuous possession for the statutory period (O) Open and notorious (A) Actual (H) Hostile, no consent
One adverse possessor may tack on his time to his predecessor’s there is
privity. Any non-hostile nexus (blood, contract, dee, will), unless there has been an OUSTER.
The statute of limitations for adverse possession purposes will not run against a true owner who has a disability at
the START of the AP. (insanity, infancy, imprisonment)
A contract for the conveyance of land must
(1) be in writing
(2) signed by the party to be charged
(3) describe the land to be conveyed
(4) state some consideration
The doctrine of part performance will forgive a Statute of Frauds violation if
any two of the following three are present: PPI
(P) buyer takes Possession
(P) buyer Pays all or part of the purchase price
(P) buyer makes substantial Improvements
When the land contract is signed, the (buyer/seller) bears the risk of loss.
buyer, unless the contract says otherwise.
A seller’s two implied promises in every land contract are
(1) provide marketable title
(2) not make any false statements of material fact
Marketable title is title that is
free from reasonable doubt, lawsuits, and the threat of litigation.
The three circumstances that will render title unmarketable are
(1) adverse possession (must bring an action for quiet title to clear it up)
(2) encumbrances (servitudes and mortgages, unless buyer has waived them)
(3) zoning violations
A zoning ordinance is only violated if there is a _______ encroachment.
substantial.
A majority of states will also hold a seller of land liable for a failure to
disclose a latent material defect (lies OR omissions)
Although a land contract contains no implied warranties of fitness or habitability, the implied warranty of fitness and workmanlike construction applies to
the sale of a NEW home by a builder-vendor.
For legal title of land to pass from seller to buyer, a _____ must be
deed; lawfully executed and DELIVERED.**
**Delivery is ALWAYS tested.
A deed must be ________ and signed by _______ and ________ the land.
in writing; grantor; describe. The description need only be a “good lead”.
The delivery of a deed occurs when the grantor manifests the
present intent to be bond, irrespective of whether the deed was physically delivered.
The recipient’s _________ of the deed defeats delivery.
express rejection
Oral conditions on deeds transferred to the grantee are
void.
Oral conditions on deeds transferred to a third-party (escrow agent) with instructions to transfer to the grantee on fulfillment of the condition are
valid. Title passes once the conditions are met.
If a grantor dies or becomes incompetent while a deed is in escrow but BEFORE the express conditions are met
the title still passes once the conditions are met.
Recordation of a deed is _______ evidence of delivery.
prima facie.
The three types of deeds are
(1) quitclaim deed
(2) general warranty deed
(3) statutory special warranty deed
A quitclaim deed contains
no covenants, not even that grantor has title.
**But note that in the land contract prior to the creation of the deed, the grantor DID implicitly promise to provide marketable title.
The six covenants in a general warranty deed are
(1) seisin: grantor owns this estate
(2) right to convey: no disabilities or temporary restraints on alienation
(3) against encumbrances: no servitudes or mortgages
(4) quiet enjoyment
(5) warranty
(6) further assurances
The covenants of seisin, right to convey, and against encumbrances are _______ covenants and the statute of limitations begins to run _________.
Present covenants ________ run with the land and ________ be enforced by remote grantees.
present; from the instant of delivery.
do not; cannot be enforced. **Minority rule: remote grantees can enforce, but only if they did not have NOTICE of the encumbrance
The covenant for quiet enjoyment in a deed covenants that
the grantee won’t be disturbed in possession by a third-party’s LAWFUL claim of title.
The covenant of warranty/defense in a deed covenants that
the grantor will DEFEND grantee against any lawful title claims asserted by others
The covenant for further assurances in a deed covenants that
the grantor will do whatever is needed in the future to perfect title.
The covenants for quiet enjoyment, warranty, and further assurances are _______ covenants and the statute of limitations begins to run when
future; grantee is disturbed in possession.
The two warranties contained in a statutory special warranty deed are
(1) he hasn’t conveyed the land to anyone else
2) the land is free from encumbrances (mortgages and servitudes
A bonafide purchaser is one who
(1) purchases the land for VALUE (substantial pecuniary consideration, doesn’t have to be the FMV); and
(2) without notice that someone else purchased the land first
In a NOTICE jurisdiction, the last-in-time bonafide purchaser
wins regardless of whether she records or not.
In a RACE-NOTICE jurisdiction, the bonafide purchaser
wins if she properly records before the previous purchaser does.
The three forms of a notice that a bonafide purchaser can be charged with are
AIR (Actual, Inquiry, Record)
Inquiry - duty to inspect
Two examples of a buyer’s duty to inquire/inspect are
(1) to see if anyone else is in possession
(2) if a recorded instrument references an UNrecorded instrument, whatever a reasonable followup would show.
Subsequent purchasers of land are on record notice if the previous buyer properly
recorded.
Under the “Shelter Rule” for recording statutes, those who take from a _______ will prevail against anyone whom the _______ would have prevailed against.
bonafide purchaser; bonafide purchaser. The taker from the BFP can even be a donee, devisee, etc.
A “wild deed” is one where
there was an unrecorded conveyance somewhere in the chain of title.
E.g. O sells to A. A doesn’t record. A then sells to B. B records. There is no record of the O to A transaction. O could sell to a BFP who will prevail over both A and B.
A wild deed _______ give record notice.
cannot.
Thus, a BFP will prevail over both A and B in the scenario where O sells to A, A doesn’t record, then A sells to B.
Estoppel by deed
wtf?
The debtor of a mortgage is called the
mortgagor.
The creditor of a mortgage is called the
mortgagee.
Mortgages typically must be _____________ to satisfy the ________.
in writing; Statute of Frauds.
An “equitable mortgage” arises when one party lends a landowner money and the parties understand that the land is the collateral, but instead of executing a note or mortgage deed, the landowner gives
the creditor a deed to the land that is absolute on its face.
Factors a court considers when determining whether an absolute deed is really an equitable mortgage are
(1) existence of a debt or promise to pay;
(2) grantee’s promise to return the land if the debt is paid;
(3) whether the amount advanced to the grantor/debtor is much lower than the value of the property;
(4) degree of the grantor/debtor’s financial distress;
(5) the parties’ prior negotiations
**Parol evidence is admissible.
A properly transferred note will automatically transfer the
mortgage.
Physical possession of the mortgage and note ______ required for ownership.
are not
The creditor-mortgagee can transfer his interest by
(1) endorsing the note and delivering to transferee; or
(2) executing a separate document of assignment
Title is not “marketable” where future interests are held by persons who are
unborn or unascertainable.
Even if the original credit-mortgagee transfer possession of a note w/o giving notice of the transfer to the debtor-mortgagor, the debtor-mortgagor’s payment in full to the original mortgagee is effective
to extinguish the mortgage.
Courts routinely uphold a seller’s retention of up to _______% of the purchase price of the property in the form of earnest money or liquidated damages.
10
If a note is endorsed and transferred, the transferee is eligible to become a “holder in ________”
due course
A holder in due course is important because such a person takes the note free of any _________ that could have been raised against the original _________.
personal defenses; creditor-mortgagor.
A holder in due course can foreclose the mortgage despite the existence of a ________ defense but foreclosure is still subject to a _______ defense.
personal; real.
“Personal” defenses include
(1) lack of consideration
(2) fraud in the inducement
(3) unconscionability
(4) waiver
(5) estoppel
“Real” defenses include
MADFIFI4 (M) Material alteration (A) Alteration (D) Duress (F-I-F) Fraud in the Factum (a lie about the instrument) (I-1) Incapacity (I-2) Illegality (I-3) Infancy (I-4) Insolvency
**Wtf is the purpose of this?
The requirements to become a holder in due course of a note are
(1) note must be negotiable and payable to the named mortgagee
(2) original note must be endorsed, signed by the named mortgagee
(3) original note must be delivered to transferee (photocopy NOT okay)
(4) transferee must take in GOOD FAITH w/o notice of any illegality
(5) transferee must be a purchaser for value
Mortgagees _____ protected by recording statutes
are. In the same way that BFPs are protected.
A lien remains on the land as long as the mortgage was ______ properly.
recorded. “Record” notice works for mortgages just like it does for actual sales.
If a purchaser of land takes the land “subject to” the mortgage, then ________ liable.
original seller-mortgagor-debtor is
If a purchaser of land takes the land and “assumes” the mortgage, then ________ liable
both the original seller-mortgagor-debtor AND the purchaser are liable, but the original seller is only SECONDARILY liable (i.e. only liable if the mortgagee-creditor cannot get relief from the new purchaser).
Even if a purchaser of land takes “subject to” the mortgage, the mortgagee-creditor can still
foreclose on the property (though will not be able to come after the purchaser with a deficiency judgment).
If the proceeds from a foreclosure is less than the amount owed on the mortgage, then the mortgagee-creditor can bring a
deficiency action against the mortgagor-debtor.
If the proceeds from a foreclosure are MORE than the amount owed on the mortgage, then the surplus goes to
the mortgagor-debtor.
After a foreclosure sale, liens are paid off in ______ in order of
full; seniority.
The necessary parties to a foreclosure action are
(1) lienholders junior to the foreclosing lien holder
(2) the debtor-mortgagor
E.g., if there are three mortgages on a property A, B, C in order of seniority and B forecloses, B must join C and the debtor-mortgagor. A’s mortgage/lien remains on the land.
If a necessary party to a foreclosure action is NOT joined, that party’s mortgage
remains on the land.
A buyer at a foreclosure sale takes the property subject any interest ________ to the mortgage being foreclosed
senior.
Remember, the buyer is not personally liable for the senior mortgage, but the senior mortgage holder can initiate its own foreclosure if it doesn’t get paid.
The proper price of a property at a foreclosure sale is the fair market value of the property minus the outstanding balance of any
senior mortgage still on the land.
E.g. if a land is worth $50k but has a $30k mortgage, a buyer should pay no more than $20k.
Until a mortgage is _______ it has no priority. Priority is determined by ______ in time, ______ in right.
recorded. First; first.
A purchase money mortgage has rights in the property purchased ______ to other security interests in the mortgagor-debtor’s property.
senior.
Under equitable redemption, at any time PRIOR to the foreclosure sale, the debtor can try to
redeem the land (typically by paying off the balance of the mortgage due to acceleration clauses, plus interest and other costs).
**Once the sale takes place, generally the debtor no longer redeem (but see statutory redemption).
A debtor-mortgagor _____ wait the right to redeem in the mortgage itself.
cannot.
**But I take this to mean that a later executed instrument COULD waive this right, provided that it is supported by consideration.
Under the right of statutory redemption (recognized in about half the states) a debtor-mortgagor has the statutory right to redeem for some fixed period
after the foreclosure sale takes place (typically six months to a year).
**The amount to be paid is typically the foreclosure sale price rather than the original debt.
In most states that recognize statutory redemption, the debtor-mortgagor has the right to ________ the land during the ____________.
continue to possess; statutory period.
The two possible standards of liability for damage of one landowner’s property due to excavations by a neighboring landowner are
(1) negligence by the neighbor (the default)
2) strict liability (only if test is met, otherwise it’s negligence
Strict liability for damaged caused to ARTIFICIAL STRUCTURES AND IMPROVEMENTS due to a neighbor’s excavations attaches only if the plaintiff shows that
plaintiff’s improved land would have collapsed EVEN IN its natural state.
I.e., the P must show that the improvements (shrubs, fountains, structures) did NOT contribute at all to the land’s collapse. This is a tough standard to meet.
The two major systems for water rights are
(1) riparian
(2) prior appropration
Under the riparian doctrine of water rights, people who own land that borders the water are called _______ and share the right to __________.
riparia; reasonable use of the water.
One riparian will be liable only if his or her use
UNREASONABLY interferes with another’s use.
**Having a pool is NOT unreasonable.
Under the prior appropriation doctrine of water rights, righter determined by _______________, and the norm for allocation is determined by first in _______, first in _____.
prior allocation of beneficial use; first; first.
ANY productive or beneficial use is sufficient, like agriculture.
Under the common enemy rule for surface waters, water is a _______ and a landowner _____ liable for directing the flow onto another’s land.
nemesis; not liable.
**Many courts have modified the rule to prohibit unnecessary harm to another’s land.
A landowner can bring an action for private nuisance for
substantial and unreasonable interferences with another’s use and enjoyment of the land.
In order to be granted a variance from a zoning ordinance, the landowner must show
(1) undue hardship
(2) the variance won’t decrease neighboring property values.
E.g., a wheelchair bound person seeks a variance from a zoning rule requiring all structures to be at least 30 feet back from street and requests that the limit be reduced to 20 feet.
A once lawful, existing use that violates a newly-passed zoning ordinates cannot be _______ all at once otherwise it is a __________ and ________.
eliminated; taking; just compensation must be paid.
When the government seeks an exaction (i.e. a benefit for granting permission to build), the exaction must be _________ or else it is a ________.
reasonably related in nature AND scope to the impact of the proposed development; unconstitutional taking.
A regulation can be an implicit/regulatory taking if it creates an ________ on the land.
economic wipeout. Also throw in the term “investment backed expectations.”
When a land boundary reference a waterway or a right-of-way, title presumptively passes to land up to the ______ of that waterway or right-of-way unless ___________.
center; language in the deed states otherwise.
The slow and imperceptible change in the course of a natural waterway operates to
change the legal boundary of the land.
A waterway’s slow deposit of sediment is called _______ and the land belongs to the _________.
accretion; abutting landowner.
The sudden change in the course of a waterway is called ________ and _______ change ownership rights.
avulsion; ownership rights.
A court will reform a deed in any of the following situations
(1) mutual mistake;
(2) scrivenor’s (minor) error;
(3) unilateral mistake caused by a misrepresentation/other inequitable conduct
A deed to a _____ person is void and conveys no title.
dead.
A deed delivered with the name of the grantee left blank is
valid. The court presumes the person taking delivery has authority to fill in the name.
A deed delivered with the land description left blank is _______ unless _________.
invalid; the grantee was given explicit authority to fill in the description (in the land contract maybe?)
A seller _______ to satisfy a mortgage or lien on the property from the proceeds of the sale.
has the right. Thus, title is not unmarketable if proceeds from the closing will result in marketable title.
A closing date in a land contract is not absolutely binding and a party can generally still tender performance within a __________ unless ___________.
reasonable time;
(1) the contract states that time is of the essence; or
(2) the circumstances indicate that the parties intended for time to be of the essence; or
(3) one party gave the other notice that time was of the essence.
