Real Property Flashcards

Question

Covenants that run with the land (leaseholds)

Answer 1

A covenant runs wth the land if the original parties to the lease so intend and if the covenant touches and concerns the land (benefits the landlord and burdens the tenant or vice versa) with respect to their interests in the property.

Answer 2

Landlord can prohibit a tenant from assigning or subletting without the landlord's prior written approval. A valid covenatn against assignment is considered waived if the landlord was aware of the assignment and did not object. Once the landlord consents to one transfer, they waive the right to object to future transfers by that tenant unless they expressly reserve the right.

Answer 3

Landlord can assign the rents and reversion interest they own. Usually done by deed when landlord conveys a building to a new owner. Tenant consent not required. Once tenants are given reasonable notice, they must recognize and pay rent to the new owner as their landlord. New owner liable on all covenants that run with the land. Original landlord remains liable on all of the covenants they made in the lease.

Answer 4

Common law norm is tenant beware. Landlord has no duty to make premises safe. Exceptions: Common areas Latent defects- dangerous conditions tenant could not discover by reasonable inspection of which the landlord has knowledge or reasont o know Assumption of repairs- once repairs are undertaken, landlord must complete with reasonable care Public use rule- ex: short term lease of a public space like convention hall or museum Short-term lease of furnished dwelling Many courts now hold that landlord owes general duty of reasonable care toward residential tenants, and will be held liabel in torts resulting from ordinary negligence if the landlord had notice of a defect and opportunity to repair.

Answer 5

Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land. Holder has the right to use another's tract of land for a specified prupose, but has no right to possess or enjoy that land.

Answer 6

Right to go onto and do something on servient land

Answer 7

Entitles its holder to prevent the servient landlowner form doing something that would otherwise be permissible. Generally recognized in four categories: - light - air - support - stream water from an artificial flow - sometimes scenic view (minority of states) Can only be created expressly in a writing signed by the grantor.

Answer 8

Benefits its holder in physical use of enjoyment of his own land. Involves two parcles of land. Dominant tenement dervies the benefit. Servient tenement bears the burden. Passes automatically with transfers of the dominant tenement, regardless of whether its mentioned in the conveyance. Burden of the easement also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice.

Answer 9

Confers on holder some personal or pecuniary advantage not related to their use or enjoyment of their own land. Servient land is burdered but there is no benefited or dominant tenement becuase the easement benefits the holder rather than another parcel. (ex: placing billboard on another's lot, swim in someone's pond, laying power lines) Not transferable unless for commercial purposes.

Answer 10

Prescription Implication Necessity Grant

Answer 11

Any easement must be memorialized in writing and signed by the holder of the servient tenement unless its duration is brief enough to be outside the coverage of a particular state's SOF.

Answer 12

Created by operation of law. easement implied from pre-existing use- previous use on servient part was apparent and continuous AND parties expected use would survive the division because it is reasonably necessary to the dominant tenement's use and enjoyment. Lots sold in subdivision with reference to recorded plat or map that shows streets leading to lots, buyers of lots have implied easements to use the streets to access. Holder of profit a prendre has implied easement to pass over surface of servient land to extract what it needs to extract from the servient property.

Answer 13

When landowner conveys a portion of her land with no way out except over some part of the grantor's remaining land. Servient parcel owner has right to locate the easement.

Answer 14

Requirements: - continuous and uninterrupted use for the given statute's period - open and notorious use (discoverable on inspection) - actual use that does not have to be exclusive - hostile use (without servient owner's consent)

Answer 15

Scope assumed to intened to meet both present and future needs of dominant tenement. But if dominant tenement is subdivided, you cannot overburden the easement. Remember, easement does not get extinguished if it is overburdened. Remedy is an injunction against the misuse.

Answer 16

- Estoppel - Necessity - Destruction - Condemnation - Release - Abandonment - Merger - Prescription - under conditions stated in original easement

Answer 17

Oral expression of an intent to abandon an easement won't terminate an easement unless its also committed to writing or accompanied by action (abandonment). But if servient owner materially changes their position in reasonable reliance on easement holder's assurances or represeations, the easement terminates through estoppel.

Answer 18

Easements created by necessity expire as soon as the necessity ends, unless the easement was reduced to writing.

Answer 19

Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement

Answer 20

Condemnation of the servient estate by governmental eminent domain power will terminate the easement. Courts split about whether easement holders are entitled to compensation.

Answer 21

A release given by the easement holder to the servient land owner will terminate the easement.

Answer 22

Easement holder must show by physical action (i.e. building a structure that blocks access to the easement on the adjoining lot) an intent to never use the easement again. Mere nonuse or mere words are insufficient to terminate by abandonment.

Answer 23

An easement is extinguished when title to the easement and title to the servient land become vested int eh same person.

Answer 24

A servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. - continuous interference - open and notorious - actual - hostile to the easement holder

Answer 25

Mere privilege to enter another's land for some delineated purpose. Not an interest in land, its a mere privilege. Revocable at the will of the licensor. Inalienable. Any attempt to transfer a license resutls in revocation by operation of law. Writing not required to create an easement.

Answer 26

Entitles its holder to enter the servient land and take from it some resources, some substance of the soil, or some product of the property. All rules governing creation, alienation, and termination of easements are applicable to profits. Can be extinguished through surcharge- misuse that overly burdens the servient estate.

Answer 27

Written promise to do or not do something related to land. Unlike an easement becuase it is not the grant of a property interest, it a contractural limitation or promise regarding land. If someone wants money damages, construe the promise as a covenant. If they want an injunctive, construe it as an equitable servitude.

Answer 28

A promise to refrain from doing something related to land.

Answer 29

A promise to do soemthing related to land

Answer 30

If these requirements are met, any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it. - writing - intent that the covenant would. can be inferred by circumstances or from the language of the writing - touch and concern the land- affects legal relations as landowners and not just as members of the community - horizontal and vertical privity- original parties were in grantor-grantee, landlord-tenant, or mortgagor-mortgagee relationship when the covenant was created. Vertical privity only requires some non-hostile nexus like contract, devise, or descent. Only time vertical privity is absent is when successor acquired interest through adverse possession. - notice

Answer 31

requirements: - writing - intent - touch and concern - vertical privity

Answer 32

- written release - merger of benefitted and burdened estate - condemnation of burdened property

Answer 33

Promise that equity will enforce against successor of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser for value without notice. Creation requirements: - Writing - intent- parties intended that promise would be enforceable by and against successors - Touch and concern - notice Terminated by written release, merger, or condemnation of the burdened party.

Answer 34

Exception to requirement that original equitable servitude promise be in writing. If a developer subdivides land and some deeds contain restrictive covenants, while others do not, the restrictive covenants will be binding on all parcels provided there was a common scheme of development and notice fo the covenants. Required elements: - common scheme of residential development that included defendant's lot (scheme must arise before lots are sold to apply) AND - defendant lot holder had notice of the promise contained in those prior deeds when it took (actual, inquiry, or record notice) Court won't enforce if neighborhood conditions have changed so signficantly that enforcement won't be equitable. Entire area or subdivision must change. Other reasons court wont enforce: - person seeking enforcement violatingsimilar restriciton on their own land - benefited party acquiesced in violation of the servitude by a burdened party - benefited party acted in such a way that a reasonable personw ould think the covenant was abandoned or waived - benefited party fails to bring suit against the violator within a reasonable time

Answer 35

Possession for a statutorily prescribed period fo time can ripen into tilte to real property. If an owner does not within the statutory period, take action to eject a possessor who claims adversely to the owner, title vests in the possessor. - continuous (possssion of a type that a usual owner would make) - open and notorious- sufficiently apparent to put true owner on notice that a trespass is occurring - actual and exclusive- must actually occupy (can occupy only a portion if you have color of title). Cannot share with true owner or the public. - hostile- enters without owner's permission. note that when someone assumes possession with what they mistakenly believe to be valid title, their possession is hostile and adverse.

Answer 36

one adverse possessor may tack on to his time with the land his predecessor's time so long as there is privity between the possessors (non-hostile nexus like contract, deed, or will)

Answer 37

Statute of limitations will not runa gaisnt true owner afflicted with a disability at the inception of the adverse possession

Answer 38

(1) land contract conveys equitable title (2) deed passes legal title and becomes the operative document Before closing, contracts rules apply. AFter closing, property rules.

Answer 39

Writing signed by part against whom enforcement being sought (party being sued). Writing must: - identify the parties - describe the property AND - include the price (consideration) or means of determining price Note that if contract overstates or understates size of land remedy is specific performance with pro rata reduction in price.

Answer 40

Allows a buyer to enforce an oral real estate contract by specific performance if - oral contract is certain and clear and - acts of partial performance clearly prove the existence of a contract Second requirement statisfied if buyer can prove two out of the following three: - buyer took possession - Paid purchase price or significant portion of purchase price - buyer made substnatial improvements

Answer 41

Once contract is signed, equity regards buyer as owner of the real property. Risk of loss rests with buyer. They bear the risk if the property is destroyed through no fault of either party. Seller must credit any fire or casualty insurance proceeds they receive against purchase price. If a party dies during escrow. Deceased buyer's interest passes as real property to their estate. Deceased seller's interest, right to purchase price, passes to their estate as personal property. Contract remains enforceable, with deceased party's estate taking the decedent's place in the transaction.

Answer 42

Every contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt and threat of litigation. Title must be marketable on the day of closing. Defects that render title unmarketable: - defects in record chain of title (adverse possession) - encumbrances (mortgages, liens, easements, restrictive covenants) - zoning violations Seller has a right to satisfy a mortgage or lien at closing with the proceeds of the sale. Prior to closing, buyer cannot claim that title is unmarketable because it is subject to a mortgage if the closing will result in the mortgage's discharge. Once closing occurs and the deed changes hands, the seller is no longer liable on the implied contractual covenant. The seller is then liable for express promises made in the deed. Buyer must notify seller that title is unmarketable and give seller reasonable time to cure defects. If seller fails to cure, buyer's remedies include recission, damages, specific performance with abatement, and a quiet title suit.

Answer 43

Implied promise in contract that seller will not make false statements of material fact. Seller may be liable to the purchaser after the closing for defects like a leaky roof, flooding basement, etc. if they knowingly made a false statement of material fact that the buyer relied on, actively concealed a defect, or failed to disclose known defects on the property. To be liable: - seller know or have reason to know of defect - seller realizes that the buyer is unlikely to discover the defect AND - defect serious enough that the buyer would reconsider the purchase Can include disclaimers in the contract for specific types of defects like "seller not liable for defects in the roof"

Answer 44

Land contract contains no implied warranties of fitness or habitability. Caveat emptor is the common law norm. Exception: warranty of fitness or quality in the sale of a new home by the builder.

Answer 45

Courts presume time isn't of the essence. Closing date isn't absolutely binding. Party late in tendering their own performance can still enforce the contract if they tender within a reasonable time (two months-ish) after the closing date. Exceptions: - contract states time is of the essence - circumstances indicate that was the parties' intent - one party gives the other notice that time is of the essence

Answer 46

Nonbreaching party is entitled to damages (contract price- market value on date of breach plus incidental costs) or specific performance. If buyer wants to proceed despite unmarketable title, they can usually get specific performance with an abatement of the purchase price.

Answer 47

Must be lawfully executed and delivered. Requirements to execute a valid deed: - a writing signed by the grantor - an unambiguous description of the land (doesn't have to be perfect) - identification of the parties by name or description - words of intent to transfer, such as "grant" Delivery requirement satisfied when the grantor physically or manually transfers the deed to the grantee. It's permissible here to use the mail or agent or messenger. Delivery presume if deed is handed to grantee, acknowledged by the grantor in front of a notary or recorded.

Answer 48

grantor isn't even promising that he has title to convey. Worst deed a buyer could hope for, conveys only what the grantor has at the time fo the coveyance.

Answer 49

Warrants against all defects in title, including those attributable to the grantor's predecessors. Three present covenants breached at the time the deed is delivered - seinsin - right to convey - against encumbrances Three future covenants not breached until grantee disturbed in possession: - quiet enjoyment - warranty - further assurances (grantor promises to do whatever is needed to perfect grantee's title if it later turns out to be imperfect)

Answer 50

Contains same covenants as a general warranty deed but grantor makes those promises only on his own behalf.

Answer 51

First in time, first in right. whoever received the interest first was entitled to the property and second grantee out of luck.

Answer 52

Grantee must: - be a purchaser, not one who received the property by gift, will, or inheritance - pay valuable consideration - take without notice (actual, constructive, or inquiry) of the prior conveyance

Answer 53

Purchaser actually knew about the prior conveyance.

Answer 54

Whether or not they actually inspect, the purchaser is on inquiry notice of whatever an examination of the property would have revealed. They are on notice if a recorded instrument makes reference to an unrecorded transaction.

Answer 55

On record notice if deed properly recorded within the chain of title.

Answer 56

Under pure race statute, notice of a prior conveyance doesn't matter. First party to record wins. This is rare. "A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded."

Answer 57

Subsequent purchaser who had no notice of a prior conveyance by the grantor will prevail over a prior grantee who failed to record. "A conveyance of an interest in law, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded."

Answer 58

Subsequent purchaser must not have any notice of the prior grant and must record first. "Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded."

Answer 59

Anyone who takes from a bona fide purchaser will prevail against any interest the bona fide purchaser would have prevailed against.

Answer 60

A wild deed is a recorded deed that isn't connected to the chain of title. It does not impart constructive notice because a subsequent purchaser could not feasibly find it.

Answer 61

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer.

Answer 62

Extension of value by a lander who takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire.

Answer 63

Can endorse the note and deliver it to the transferee or execute a separate document of assignment. Mortgagee can freely transfer the note and the mortgage automatically follows a properly transferred note.

Answer 64

Buyer either assumes the mortgage or takes the property subject to the mortgage. If they assume the mortgage, they agree to be personally liable on the mortgage note. If they take the property subject to the mortgage, they are not agreeing to personal liability and the mortgagee's only recourse is foreclosure. If the parties sign an assumption agreement, the grantee is primarily liable to the lender, while original mortgagor is secondarily liable as a surety.

Answer 65

Foreclosure terminates interest junior to the mortgage being foreclosed but does not affect senior interests. The original mortgagor will remain personally liable for the senior mortgage(s) that remain with the land. Buyer has a strong incentive to pay those off because the senior mortgage(s) will foreclose if the debtor doesn't pay. If a necessary party is not joined in the sale, their mortgage will remain on the land. Attorneys fees and expenses of foreclosure paid off first. Then junior liens in order of their priority. Mortgagees who do not recover the full amount from the foreclosure sale can proceed against the mortgagor in a deficiency judgment for the balance. If there is a surplus, the remainder does to the mortgagor.

Answer 66

At any time prior to the foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage. Once valid foreclosure sale has taken place, the right is cut off.

Answer 67

Variance grants landowner permission to dept from the literal restrictions of a zoning ordinance.

Answer 68

creates a hierarchy of uses of land where a single-family home is the highest use, then two-family home, apartment building, strip mall, factor. Land zoned for a particular use may be used for the stated purpose and any other higher use.

Answer 69

Land may be used only for the purpose for which it is zoned.

Answer 70

Must be obtained even though zoning is proper for the intended use Ex: hospitals, funeral homes, drive-in businesses etc.

Answer 71

In general, an owner of real property has the exclusive right to use and possess the surface, airspace, and soil of the property.

Answer 72

Right to have the land supported in its natural state by the adjoining land. Landowner strictly liable if their excavation causes adjacent land to subside. If adjacent landowner's excavation causes improved land to cave in, excavator will be liable only if they were negligent. But strict liability would apply if the plaintiff shows that because of defendant's actions, the improved land would have collapsed even if in its natural state. An underground occupant of land like a mining company must support the surface and buildings existing on the date the subadjacent estate was created. Liability for subsequently erected buildings requires negligence.

Answer 73

water belongs to those who own the land bordering the watercourse. natural flow theory- riparian owner's use is enjoinable if it results in subtantial or material diminution of the water's quantity, quality, or velocity reasonable use theory- all riparians share right of reasonable use. cannot substantially infere with the use of other riparian owners. Natural uses prevail over artificial uses.

Answer 74

Water initially belongs to the state but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner. A person can acquire the right to divert and use water from a watercourse merely by being the first to do so.

Answer 75

Absolute ownership- only a few states. Owner of overlying land can take all the water the want, for any purpose. Reasonable use- like absolute ownership but exporting only allowed if it does not harm other owners who have rights in the same aquifer. Correlative rights doctrine- owners of overlying land own underground water basin as joint tenants, and each is allowed a reasonable amount for his own use Appropriative rights doctrine- priority of use is determinative restatement- surface owner can pump groundwater unless it (1) unreasonably harms neighboring landowners, exceeds the pumper's reasonable share, or (3) directly and substantially affects surface waters and unreasonably harms surface water users

Answer 76

Water coming from rain, springs, or melting snow which has not yet reached a natural watercourse or basin. Landowner can use surface water within their boundaries for any purpose they desire. Natural flow theory- owners cannot alter natural drainage patterns common enemy theory- owner can take any protective measures to get rid of the water or combat its flow (many courts say you can't unnecessarily damage others' land in doing so) reasonable use theory- balances utility of use against gravity of the harm

Answer 77

No exclusive right to airspace but owner is entitled to freedom from excessive noise

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Real Property Flashcards

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