Real Property Flashcards
Adverse Possession
Possession for a specified statutory period in the requisite manner will establish the possessor’s title to the land. For possession to ripen into title, it must be -
- Actual and exclusive
- Not sharing possession with the true owner or the general public - Open and notorious
- Such USE as the usual owner would make of the land and sufficient to put the true owner or the community on NOTICE of the fact of possession - Adverse/Hostile, i.e., without the true owner’s PERMISSION
- Continuous for the statutory period
- Possession that the average owner would make of the property under the circumstances, e.g., if it’s a summer house, than every summer
Adverse possession and future interests
The event or condition giving right to the grantor’s right of entry does not trigger the SOL
- Does not begin to run until the right is ASSERTED by grantor
** Adverse possession by two or more people
Two or more people can work together to take title by adverse possession, and if they meet the requirements, they take as tenants in common.
Adverse possession of a parcel that is clearly divided up
Trespasser can only obtain title to that portion of the land that he actually possessed, unless he enters under a color of title, which could have given him title to all of the land even though he actually possessed only a part of it
Assuming a mortgage
Must be an EXPRESS ASSUMPTION, not merely “subject to.” Lender is considered a third-party beneficiary of the agreement, and hence may recover from the assuming GRANTEE, who is PRIMARILY liable, or the ORIGINAL mortgagor, who is SECONDARILY liable.
- Surety
- Taking subject to: grantee is not personally liable on the loan; original mortgagor remains personally liable
- Once a grantee has assumed a mortgage, any modification between the grantee and mortgagee discharges the original mortgagor of all liability
BFP
Someone who who takes for VALUE and without NOTICE
Covenants that run with the land
- Covenants to pay money run
- Covenants to perform physical acts on the property
** Delivery of a deed
A deed is not effective to transfer an interest in realty unless it has been delivered. Delivery refers to the grantor’s intent. There must be words or conduct showing the grantor intended that the deed have some present operative effect, that title pass immediately and irrevocably, even though the right of possession may be postponed.
- If the right of possession is to be postponed until the grantor’s death, the deed may be held “testamentary” and therefore VOID (unless executed with testamentary formalities)
- Most courts hold that if the grantor executes a deed and gives it to another with instructions to give it to the grantee upon the grantor’s death, the grantor’s intent was to presently convey a future interest to the grantee (either a remainder, with a life estate reserved in the grantor, or an executory interest), and so the gift is inter vivos, not testamentary.
Easement by necessity
Where the owner of a tract of land SELLS a part of the tract and by this division deprives one parcel of access to a PUBLIC ROAD or UTlLITY LINE, a right-of-way by absolute necessity is created by implied grant over the parcel with access to the public road.
** This is true regardless of whether the landlocked owner could obtain a right-of-way from another neighbor
** The owner of the SERVIENT parcel has the right to LOCATE the easement, provided the location is reasonably convenient
** Enforcement of a restrictive covenant
A restrictive covenant can be enforced at LAW for damages (as a real covenant running with the land) or in EQUITY for an injunction (equitable servitude). The requirements are different for each!
An enforceable equitable servitude requires that the covenanting parties intended the servitude to be enforceable against successors in interest, the successor in interest must have notice of the covenant, and the covenant must touch and concern the land. Here, the original parties clearly intended their successors to be bound because they stated in the agreement that it was enforceable by and against all assignees, heirs, and successors. The agreement was recorded. Thus, all successors would have constructive (record) notice of the covenant. For the benefit of a covenant to touch and concern the land, the promised performance must benefit the covenantee and their successors in their use and enjoyment of the benefited land. Here, the performance (not building a shed) benefited the man and his successors in their use and enjoyment of the land because they could enjoy their property without viewing sheds they consider unsightly. All requirements for an equitable servitude are met, and the main has a right to enjoin the neighbor’s daughter. (A) is incorrect because the question concerns enforcing an agreement between two parties; it does not involve a common development scheme. Thus, what the other neighbors do is irrelevant. (B) is incorrect. Horizontal privity is required for a burden of a real covenant to run at law to successors in interest. It would have been required had the man been seeking damages rather than an injunction. Horizontal privity requires that the original covenanting parties share some interest in the land independent of the covenant (e.g., grantor-grantee). Here, the parties to the agreement were merely neighbors and had no legal relationship; thus there was no horizontal privity. As noted above, the man may still enforce the agreement as an equitable servitude. (C) is incorrect. The fact that the daughter took the property as a gift prevents her from being a bona fide purchaser for value (“BFP”). A BFP takes free of a restrictive covenant if they had no notice of it. Here, the daughter is not a purchaser and she had record notice of the covenant. Thus, she would take subject to the restriction if it were enforceable against her. So the question is whether the restriction is enforceable against the neighbor’s successor in interest. The answer is yes. QUESTION ID: PNCBE020
Equitable servitude
An equitable servitude is a COVENANT that, regardless of whether it runs with the land at law, equity will enforce against the successors of the burdened land unless the successor is a BFP.
- Both the BENEFIT and BURDEN of the servitude must run with the land.
For the BURDEN to run
- The covenanting parties must have INTEND that the servitude be enforceable by and against assignees
- Common scheme - Covenant must touch and concern the land
- The party to be bound must have had actual, constructive, or inquiry NOTICE
For the BENEFIT to run
- Intended by the original parties
- Covenant must touch and concern the land
* Privity is not required
Equitable servitude v. Real Covenant
*** DEPENDS ON REMEDY SOUGHT
Money = real covenant
Injunction = equitable servitude
Real covenants require vertical and horizontal privity of estate to run
No privity of estate is required for an equitable servitude to run
What are the covenants of title in a general warranty deed?
“See Every Claim Quiet For Good”
A general warranty deed gives the grantee six covenants of title.
PRESENT COVENANTS: Majority, do not run with land; breached at time of CLOSING/CONVEYANCE. Can only be enforced by BUYER. Minority, a remote grantee can sue on the covenant against encumbrances unless the grantee had notice of the encumbrance.
1. seisin (grantor owns land)
2. conveyance (grantor lacks title, i.e., ownership of the estate conveyed, at the time of the grant)
3. against encumbrances (no servitudes/liens on land)
- Neither visible nor invisible
FUTURE COVENANTS: run with the land; can be enforced by BUYER and SUBSEQUENT occupiers of land.
4. quiet enjoyment (not disturbed in possession; grantee is evicted by a third party with PARAMOUNT title, i.e., title or ownership of the estate conveyed that is superior to the grantor’s title)
5. further assurances (perform whatever acts necessary to perfect title)
6. general warranty (defend title against lawful claims)
Implied Covenant of Quiet Enjoyment
A tenant has a right to quiet use and enjoyment of the premises without interference from the LL or a paramount title holder.
- Actual eviction: terminates obligation to pay rent
- Partial eviction: physically excluded from part of the premises. Relieves obligation to pay rent for the entire premises.
- Constructive eviction: LL’s breach of duty renders premises unsuitable for occupancy. May terminate lease and seek damages.
1. Substantial interference
2. Notice
3. Tenant vacates
Implied covenants in land sale contracts
Seller will 1) provide marketable title and 2) will not make false statements of material fact.
Implied Warranty of Fitness/Quality
Only applies when BUILDER of the home is also the SELLER of the NEW home.
Implied Warranty of Habitability
** RESIDENTIAL, Non-waivable
Premises must be fit for basic human habitation. Bare living requirements.
- Need not vacate!
In a deed that warrantees against encumbrances, can there nonetheless be one at closing?
Yes. In a contract for the sale of real property, the seller of the land is entitled to use the PROCEEDS of the sale to CLEAR title if she can ensure that the purchaser will be PROTECTED
Marketable title
Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept.
- Need not be a “perfect” title, but must be free from unreasonable risk of litigation over the TITLE to the land (not all litigation!)
- The buyer is not required to “buy a lawsuit,” even if his ultimate success on the merits of such a suit seems likely!
- A title acquired by adverse possession is not considered marketable because the purchaser might be later forced to defend adverse possession in court
- Must file suit to quiet title before you sell. If you win, the judge will stamp your deed, marketable title
- Easement that reduces the value of the property usually unmarketable
- Must argue at CLOSING, not later!
Negative Equitable Servitude
When a developer subdivides land into several parcels and some of the deeds contain negative covenants but some do not, negative equitable servitudes binding all the parcels in the subdivision may be implied if
- There exists a common scheme for development
- The grantee has notice of the covenant
- Actual notice (direct knowledge of the covenants in the prior deeds)
- Inquiry notice (the neighborhood appears to conform to common restrictions)
- Record notice (if the prior deeds are in the grantee’s chain of title he will, under the recording acts, have constructive notice of their contents)
** Non-conforming use
A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for any higher use.
- A residential use is higher than a nonresidential use.
- Here, the building was in an area originally zoned for nonresidential use. The daughter and her parents used the property for a business and their residence. This was appropriate under the cumulative zoning ordinance as the family’s uses met or exceeded the zoned use. Later, the area was rezoned for single-family residential use, which is a higher use than the shoe store. However, a use that exists at the time of passage of a zoning ordinance and that does not conform cannot be eliminated at once.
- Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance. Because the shoe store existed at the time of the rezoning, the daughter may continue to operate the shoe store as a nonconforming use.
Notice jurisdiction
Last BFP or mortgagee for value wins.
- Don’t record…lose!
- A subsequent bona fide purchaser prevails over a prior grantee who fails to record
- Did the subsequent purchaser have actual or constructive notice at the time of the CONVEYANCE?…Not at the time of recording
Quitclaim deed
No covenants
- Has no impact on covenants in contract
Race jurisdiction
Requires the word FIRST. First to record wins.