Real Property

Question 1

Fee Simple Absolute

Answer 1

FSA holder has all possible rights
may last forever- alienable, devisable, and descendible
terminate- owner dies without a will or heirs, and property escheats to state

Question 2

Devisees take by ____
Heirs take by ____
Grantees take be _____

Answer 2

Devisees take by will
Heirs take by the laws of intestacy
Grantees take by inter vivos transfer

Question 3

Fee simple absolute creation

Answer 3

“to A and his heirs”
VA “and his heirs” unnecessary

Question 4

Defeasible estate

Answer 4

an estate that may terminate upon some happening or event before its maximum duration (forever in fee) has run

Question 5

Fee simple determinable

Answer 5

created by durational language (for so long as, during, until, or while)
terminates automatically on happening of a named future event. the estate returns to the grantor

Question 6

Fee simple subject to a condition subsequent

Answer 6

created by conditional language to occurrence of a condition that will terminate estate (provided however, however if, but if, on condition that, or in the event that)
POWER of termination MUST be EXPRESSLY reserved to the GRANTOR

Question 7

Fee simple subject to executory interest

Answer 7

created by either durational or conditional language
termination occurs on the happening of an event that terminates the estate; property the passes to someone other than grantor

Question 8

Fee tail

Answer 8

CL: an estate that descended to grantee’s children only
ML: fee tails are disfavored and are treated as fee simple absolutes
VA- abolished

Question 9

Life Estate

Answer 9

life estates last for the duration of the grantee’s life

Question 10

Life estate pur autre vie

Answer 10

the duration of the estate is measured by the life of someone other than the grantee
can be made defeasible

Question 11

Non-freehold estates

Answer 11

term estate: estate that is limited in duration (basically landlord-tenant relationship)

Question 12

Possibility of reverter

Answer 12

a future interest in the grantor that follows a determinable estate
creation: a fee simple automatically creates a possibility of reverter (no special language needed)
Upon the happening of the event, the land automatically reverts back to grantor
transferability: ML the power of termination is freely transferable, devisable, and descendible
NOT subject to RAP

Question 13

Power of termination (Right of reentry)

Answer 13

a future interest in the grantor when the grantor attempts to create a FSSCS or a defeasible life estate
Creation: not automatic, must be spelled out in the conveyance or it does not exist
does not automatically revert, grantor must exercise right of reentry and take affirmative steps to retake the property
transferability: ML power of termination is descendible and devisable, not transferable inter vivos
NOT subject to RAP

Question 14

Reversionary interest

Answer 14

a future interest retained by the grantor when the grantor transfers less than a fee interest to a third person
transferability: ML power of termination is descendible and devisable
NOT subject to RAP

Question 15

Remainder

Answer 15

A future interest created in a third person that is intended to take effect after the natural termination of the preceding estate

Question 16

Contingent remainder

Answer 16

any remainder that is not vested

Question 17

Vested remainder

Answer 17

vested at the point it is created in an ascertainable person and is not subject to any condition precedent, other than termiantion of the preceding estate

Question 18

Vested remainder subject to total divestment

Answer 18

a remainder that is presently vested but may be terminated on the happening of a future event

Question 19

Vested remainder subject to open

Answer 19

a remainder that has been made to a class and has at least one member who is ascertainable who has satisfied any conditions precedent to vesting, but may have other members join the class later

Question 20

Is the remainder vested?

Answer 20

ascertainable person
not subject to any condition precedent
“A to B for life, then to C”

Question 21

Class openings

Answer 21

inter vivos conveyance: class opens at the time of the conveyance
testamentary conveyance: class opens at the death of testator

Question 22

Class closing**

Answer 22

RAP can void a future interest (generally not applicable to vested interest except vested remainders subject to open); if any member of a class potentially claim in a way that violates the RAP, the entire class gift fails

Question 23

Rule of convenience

Answer 23

Class closes as soon as one member of the class becomes entitled to immediate possession of the property

Question 24

Executory interest

Answer 24

a future interest in a third person that cuts short the previous estate before it would have naturally terminated (because a fee estate has the potential to last forever, any interest created in a third party that follows the granting of a fee will always be an executory interest)

Question 25

Shifting executory interest

Answer 25

the interest passes from one grantee to another (i.e. a grantee to a grantee (most common))
RAP applies

Question 26

Springing executory interest

Answer 26

the interest transfers from a grantor to grantee
RAP applies

Question 27

Waste

Answer 27

determines what someone who owns land can or cannot do with it
owner of a fee estate can do whatever she wants with the property but an owner of less cannot commit waste

Question 28

Voluntary waste

Answer 28

a life tenant cannot intentionally or negligently damage property
if they do, they are liable for the damage

Question 29

Permissive waste

Answer 29

a life tenant must take reasonable steps to avoid danger. failure to do so constitutes permissive waste and the life tenant will be liable

Question 30

Ameliorative waste

Answer 30

a life tenant makes improvements to the land
CL- a life tenant not allowed to make substantial alterations unless authorized to do so and could be held liable for costs of restoring the land to its previous condition
ML- a life tenant is now allowed to commit ameliorative waste if:
1 market value of the remainderman’s interest is not impaired and
2 it is permitted by the remainderman OR a substantial and permanent change in the neighborhood justifies the improvement

Question 31

Remainderman has standing to sue for past/future waste

Answer 31

vested remainderman: can sue for damages or an injunction to stop the waste from occurring
contingent remainderman: cannot sue for damages and can only sue for an injunction to stop the waste from occurring

Question 32

Vested remainderman sue for waste?

Answer 32

damages or an injunction to stop the waste from occurring

Question 33

Contingent remainderman sue for waste?

Answer 33

Cannot sue for damages and can only sue for an injunction to stop the waste from occurring

Question 34

ML ameliorative waste

Answer 34

life tenant allowed if
1. market value of remainderman’s interest is not impaired
2 . it is permitted by the remainderman OR a substantial and permanent change in the neighborhood justifies the improvement

Question 35

Doctrine of waste

Answer 35

Applies to mortgagor/mortgagee relationship
Applies to landlord/tenant relationship

Question 36

Rule against Perpetuities (RAP)

Answer 36

CL: “no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest”

Question 37

Rule against perpetuities common parlance

Answer 37

Rules deals solely with possibilities.
If you can look at a future interest in a conveyance and can come up with an interpretation where someone could be claiming more than 21 years after everyone currently alive connected to the grant is dead, it violates the rule.

Question 38

RAP application

Answer 38

does not apply to present possessory estates,
only applies to three future interests (executory interest, contingent remainder, and vested remainder subject to open), applies to purchase option and right of first refusal.
all other future interests are exempt from the RAP

Question 39

Restraint on total alienation

Answer 39

“A to B, but if B ever tries to sell the property, the property will revert to A”
On a fee: generally not valid
On less than a fee: this will be upheld, if reasonable

Question 40

Partial restraint on alienation

Answer 40

both are valid if reasonable
factors: scope, time, purpose, legitimate interests of the party, supported by consideration
Purchase option: A reserves right to buy back property at any time during A’s life
Right of First Refusal: if B attempts to sell during A’s life, B must first offer A buyback at the same price

Question 41

Tenancy in common

Answer 41

each co-tenant owns an undivided possessory interest in the whole of the property

Question 42

Joint tenancy

Answer 42

each co-tenant owns an undivided possessory interest in the whole of the property AND has a right of survivorship

Question 43

Right of survivorship

Answer 43

jointly owned property passes to surviving co-tenant automatically
ML a conveyance to two or more people to jointly own property is presumed to create a tenancy in common, unless specifically stated otherwise
MUST use language to demonstrate the right attached to the grant

Question 44

Creation of a joint tenancy

Answer 44

(TTIP)
Time
Title
Interest
Possession

Question 45

Differences between joint tenancy and tenancy in common

Answer 45

right of survivorship
four unities (time, title, interest, and possession)

Question 46

Tenancy by the entirety

Answer 46

reserved for married couples
Each spouse has an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise
Only created by deed or will not descent

Question 47

Severance: tenancy by the entirety

Answer 47

only when the spouses jointly convey to a third party, one spouse conveys to the other spouse, or the couple divorces

Question 48

Severance: Joint tenancy

Answer 48

Creates a tenancy in common
done by an inter vivos act of the parties
can seek a partition action
joint tenant sells his interest
joint tenant mortgages

Question 49

Lien theory jurisdiction
(majority)

Answer 49

mortgage is viewed as a lien on the property, will not sever interest
mortgage encumbers only the portion belonging to the mortgagor
if mortgagor dies, the living joint tenant inherits the whole free of the mortgage. if there is a foreclosure before mortgagor dies, foreclosure severs the joint tenancy.

Question 50

Title theory jurisdiction (minority)

Answer 50

mortgage is viewed as a title to the property, will sever
mortgage encumbers only the portion belonging to the mortgagor
VIRGINIA

Question 51

Partition

Answer 51

each co-tenant has the right to seek partition of the property

Question 52

Voluntary partition

Answer 52

done by exchange of deeds or selling the property and dividing the proceeds

Question 53

Involuntary partition

Answer 53

is the result of a partition action filed by one or more co-tenants in court

Question 54

Co-tenant possession

Answer 54

each co-tenant entitled to possess the whole property

Question 55

Co-tenant profits

Answer 55

profit produced by one of the co-tenant’s efforts, then the other co-tenants have no right to share in those profits
profit generated by a third party, then all co-tenants are entitled to a proportionate share

Question 56

Co-tenant expenses

Answer 56

taxes/mortgage payments- each co-tenant must pay a proportionate share

repairs- no direct duty of repair imposed, however a co-tenant who makes repairs to the property may be compensated for the amount of the repair

improvements- no duty imposed. if one co-tenant chooses to improve the property, they cannot get contribution from the other co-tenants. exception: if the property is sold, any amount attributable to the improvement goes to the tenant who made the improvement

Question 57

Landlord-tenant question

Answer 57

1. what type of tenancy?
2. what is the dispute?
   (rent, premises condition, possession, improvements)
3. Has the LL/T transferred their interest in the property?

Question 58

Lease creation

Answer 58

oral or in writing (required for a term longer than a year)
implied lease- through conduct of the parties

Question 59

Term of Years tenancy

Answer 59

creation: express agreement between LL and T for a term specified in the lease
termination: automatically at the end of the period, no notice required

Question 60

Periodic tenancy

Answer 60

Creation: expressly or by implication with a holdover tenant
termination: LL or T must give appropriate notice of intent to terminate (in writing if specified in the lease or state statute, otherwise orally) equal to the rental period, up to a maximum of six months
(ex. 1 month tenancy= 1 month, 3 month tenancy = 3 months, 1 year tenancy = 6 months)
Timing of notice: notice is good whenever given but does not take effect until the start of the next rental period

Question 61

Tenancy at-will

Answer 61

creation: generally by express agreement of the parties
Termination: as soon as either party decides, if either LL or T dies, or if either party attempts to transfer their interest

Question 62

Tenancy at sufferance

Answer 62

creation: holdover situation, a holdover tenant will become either a periodic tenant or a tenant at sufferance
termination: depends on whether T becomes a periodic tenant or a tenant at sufferance
Crucial factor: acceptance of rent from the tenant

Question 63

Rent- can the landlord sue?

Answer 63

tenancy for years: tenant is liable for all unpaid rent in the lease (LL must reasonable cover)
periodic tenancy: tenant is liable for the rental obligation up until proper notice is given to terminate the lease
tenancy at-will: the tenant is liable for the amount of rent stated in the agreement that is already owed (stay as long as T gardens the property)
tenancy at sufferance- tenant is liable for the reasonable rental value of the property

Question 64

Failure to deliver possession (LL/T)

Answer 64

Majority: LL has an obligation to deliver possession of the premises
minority: LL has no obligation to deliver, tenant must take it

Question 65

Actual eviction

Answer 65

the tenant is physically removed from all or part of the property
EXCUSE for not paying rent

Question 66

Constructive eviction

Answer 66

LL has allowed the condition of the premises to deteriorate to the point that T is essentially being forced out. use and enjoyment substantially interfered with
T must move out in a reasonable time
includes acts by third parties if LL knew or had reason to know
total- defense to paying rent
partial- reduction in rent only

Question 67

Destruction (LL/T)

Answer 67

CL: did not excuse paying rent (still in possession)
ML: defense to paying rent, exception if T intentionally or negligently caused the destruction

Question 68

Warranty of Habitability

Answer 68

implied warranty that the premises are fit for habitation
residential leases only
T must:
1. provide LL notice
2. allow the LL reasonable time to repair the problem

Question 69

LL obligation to maintain premises

Answer 69

CL: absent express promise, no obligation to maintain or repair leased premises
ML: an implied warranty of habitability and other statutory obligations
LL duty for common passageways and other areas under LL’s control

Question 70

Tenant’s obligations

Answer 70

CL: no obligation to repair leased premises
Duty to avoid waste
Liability in tort: possessor owes duty (invitees, licensees, trespassers)

Question 71

Fight over possession (LL/T)

Answer 71

LL can retake property if T committed a material breach of the lease
CL: LL entitled to use reasonable force to retake possession
ML: majority, no longer allow the use of any force and LL must use legal process
VA- unlawful detainer SoL 3 years

Question 72

LL transfer of interest

Answer 72

LL of record on the date the rent is due is entitled to that rent

Question 73

Assignment (LL/T)

Answer 73

tenant transfers all of the remainder of the interest (rental obligation) to a new party

Question 74

Sublease (LL/T)

Answer 74

tenant transfers less than the entire interest in the contract

Question 75

Assignment privity

Answer 75

assignee comes into privity of estate with the LL while the tenant remains in privity of contract with the LL

Question 76

Assignment Rent

Answer 76

Assignee is liable to LL for rent, unless he reassigns to a new assignee who takes over privity of estate
Tenant is liable for rent, even after assignment, unless there is a contract novation

Question 77

Sublease rent

Answer 77

sublessee comes into privity of estate and privity of contract with the tenant, owing the tenant rent. T still owes LL rent

Question 78

Covenant to pay rent

Answer 78

enforced by the LL against the original tenant because of the contractual nature of the relationship
if LL is not receiving rent, material breach of the lease and the LL can have assignee or sublessee evicted
Only the original tenant and the current tenant are liable to LL for rent

Question 79

Transfer of interest leases

Answer 79

generally fully transferable
to prohibit assignment or sublease, the lease must specifically state that both are prohibited

Question 80

Dumper’s case rule

Answer 80

if there is an express prohibition against an assignment in a lease, and the LL either expressly or impliedly waives that restriction, once waived it is deemed waived for the remainder of the lease except if specifically stated otherwise

Question 80

Silent consent clause

Answer 80

a consent clause in the lease that does not state a standard or condition for giving or withholding consent
Majority: a silent consent clause gives the LL the right to withhold consent for any reason, or for no reason at all, even if arbitrary and unreasonable (subject to housing discrimination laws)

Question 81

Covenant vs. equitable servitudes

Answer 81

covenants when breached lead to award of damages
equitable servitude lead to the granting of an equitable remedy (like an injunction)

Question 82

Creation of covenants

Answer 82

Covenant to run with the land PINT
privity
intent
notice
touch
concern

Question 83

Privity (PINT)

Answer 83

horizontal- relationship between original covenantor and covenantee, requires privity of contract in connection with the land (LL/T, grantor/grantee, mortgagor/mortagee)

vertical privity- relationship between an original party to a running covenant and the successor in interest to the original party, privity of estate will only exist when holder of the servient estate transfers all his interest in the servient estate to the new owner

Question 84

Intent (PINT)

Answer 84

the writing (real property SoF) must include language that shows the parties’ intent for the covenant to run with the land and bind successors in interest

Question 85

Notice (PINT)

Answer 85

the current owner of the servient estate must take with notice of the restriction
requirement on servient side only
recordation will provide notice (3 types)
VA doesn’t recognize inquiry notice

Question 86

Actual notice

Answer 86

what you know

Question 87

Constructive notice

Answer 87

recorded

Question 88

Inquiry notice

Answer 88

you learned enough information that would lead a reasonable person to inquire further, but failed to do so
VA does not recognize

Question 89

Touch and concern the land (PINT)

Answer 89

servient estate- restriction must reduce the use and enjoyment of the servient estate
dominant estate- the restriction must increase the use and enjoyment of the dominant estate

Question 90

Creation of Equitable servitudes

Answer 90

TIN
Touch and concern the land (burden/benefit must run with the land)
intent (writings show parties’ intent to run with the land)
notice (current owner of servient estate took with notice)

enforced in equity by injunction; damages not available

Question 91

Implied reciprocal servitude

Answer 91

filed declaration containing the restrictions (called CC&Rs- covenants, conditions, and restrictions)
SoF does not apply, can be implied
Negative restrictions only
Common scheme or plan

Question 92

Impose a reciprocal servitude

Answer 92

Show a common scheme or plan
restriction must be part of a common scheme or plan for development of the area and the current owner takes with notice of the restriction
an implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots

Question 93

Factors to show “common scheme”

Answer 93

a large percentage of lots expressly burdened,
oral representations to buyers,
statements in advertisements to buyers,
or recorded plat maps or other declarations

Question 94

Enforcement of a reciprocal servitude

Answer 94

enforced by:
original grantor,
any purchaser affected by the common scheme, or
a condo or subdivision association for common land conveyed

Question 95

Terminate a covenant or equitable servitude

Answer 95

written release,
merger of the dominant and servient estates,
abandonment.
estoppel, or
changed circumstances so that the reason behind the restriction is no longer valid

Question 96

Easement (checklist)

Answer 96

interest in the land of another

1. was an easement ever properly created?
2. What is the scope of the easement?
3. Has the easement been terminated?

Question 97

Servient estate

Answer 97

the estate burdened by the easement (always required)

Question 98

Dominant estate

Answer 98

estate that is benefited by the easement (not always present)

Question 99

Easement appurtenant

Answer 99

benefits a parcel of land (the dominant estate)

Question 100

Easement in gross

Answer 100

benefits a person or entity rather than a piece of land (no dominant estate)

Question 101

Creation of easements

Answer 101

expressly, by implication, or by prescription

Question 102

Express easement

Answer 102

writing satisfies SoF

Question 103

Easement implied by prior use

Answer 103

1. severance of title to land held in common ownership
2. the use giving rise to the easement was in existence at the time of the severance
3. the use was apparent and could be discovered upon a reasonable inspection, and
4. at the time of severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract

Question 104

Easement by necessity

Answer 104

1. common ownership of the dominant and the servient estate, then severance, and
2. strict necessity for the easement at the time of severance

Question 105

Easement by plat

Answer 105

a buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision

Question 106

Easement by perscripton

Answer 106

adverse possession
someone actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period (VA- 20 years)

Question 107

Scope of easement

Answer 107

if an express easement states a particular use, then that is the only allowable use
otherwise, can be used to the extent that is it reasonably necessary to do so

Question 108

Holder of easement maintenance

Answer 108

Holder of the easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of their property

Question 109

Destruction of the servient estate

Answer 109

destruction of the servient estate will terminate an easement unless the owner of the servient estate intentionally caused the destruction

Question 110

Merger of title

Answer 110

when the owner of the dominant estate also acquires the servient estate
(termination of easement based on easement holder action)

Question 111

Written release

Answer 111

expressly terminates the owner’s rights in the easement (must satisfy SoF) (termination of easement based on easement holder action)

Question 112

Abandonment

Answer 112

requires proof of intent to abandon and an affirmative act in furtherance of the intent (termination of easement based on easement holder action)

Question 113

Estoppel

Answer 113

the owner of the servient estate foreseeably and detrimentally relies on the easement holder’s action/abandonment
(termination of easement based on easement holder action)

Question 114

Severance

Answer 114

the owner of the dominant estate tries to sever the easement from the dominant estate
(only arises with easements appurtenant) (termination of easement based on easement holder action)

Question 115

Prescription based on owner of the servient estate

Answer 115

the owner of the servient estate interferes with the use of the easement for the statutory period

Question 116

Servient estate sold to a Bona Fide purchaser

Answer 116

pays value and takes without notice,
termination of the estate

Question 117

End of necessity of easement

Answer 117

for an easement created by necessity, the easement ends when the necessity ends

Question 118

Profit

Answer 118

a nonpossessory interest in land
holder of a profit has the right to go on someone else’s land and take something off of it

transferable
termination: same as easements

Question 119

Profit creation

Answer 119

only created expressly or by prescription (analysis is otherwise the same as easements)

Question 120

License

Answer 120

privilege, usually to do something on someone else’s property
personal right, not an interest in the land
can be oral (no SoF analysis)
freely revocable for any reason (2 exceptions)

not transferrable unless licensor so intends

terminates on death of licensor or conveyance of the servient estate

Question 121

License irrevocable exceptions

Answer 121

license coupled with interest- licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property

Executed interest- the licensee expends money or labor in reliance on the license, license is irrevocable until the person gets value out of the expenditure

Question 122

Fixture

Answer 122

personal property (chattel) attached to the land

deed to the land transfers all fixtures on the property, unless buyer and seller agree otherwise
a mortgage covers the land and all its chattels, no matter when the chattels are annexed

Question 123

When is chattel a fixture?

Answer 123

if it is owned by the landowner and is so necessary or convenient to the use of the land that it is regarded as part of the land

intent to annex a chattel is a question of fact, judged by the reasonable person standard

Question 124

Zoning scope

Answer 124

regulate, restrict, permit, prohibit, and/or determine:
use of land, buildings, and structures;
size, height, area, location, construction, repair, and removal of structures;
the areas and dimensions of land, water, and air-space to be occupied and open spaces to be left unoccupied; or
the excavation or mining of soil or other natural resources

Question 125

Enforcement of zoning

Answer 125

when property found to be out of compliance, political subdivision will issue the property owner a notice of zoning violation

Question 126

Substantive due process- zoning violation

Answer 126

zoning ordinance violates substantive due process if it is arbitrary and capricious, meaning that it is not reasonably related to public health, welfare, or safety

Question 127

Procedural due process- zoning violation

Answer 127

requires notice and an opportunity to be heard

Question 128

Equal protection- zoning violation

Answer 128

a zoning ordinance may give rise to an equal protection challenge if similarly situated people are treated differently.
However, where there is no fundamental right impacted, and where there are no suspect classifications, then the rational basis test will be applied

Question 129

First amendment- zoning violation

Answer 129

a zoning ordinance may also be subject to a first amendment challenge if it regulates billboards or aesthetics

Question 130

Rezoning

Answer 130

if rezoning is inconsistent with a comprehensive plan for that area, then it must be based on a change of conditions in the land, neighborhood, environment, or public opinion

rezoning a particular piece of land is quasi-judicial and requires procedural due process. broader rezoning is legislative

an owner may petition for a rezoning to change the classification; however a use variance or special use permit is much easier to obtain

Question 131

Nonconforming use- zoning

Answer 131

a use permitted by zoning statutes or ordinances to continue, notwithstanding the fact that similar uses are not generally permitted in the area

may be expanded or rebuilt after substantial destruction

local ordinances often prohibit enlargement, alteration, or extension of nonconforming use

often required to be amortized (reduced) over a specified period, at the end terminated

Question 132

Variance- zoning

Answer 132

permission by the local zoning authorities to use property in a manner forbidden by the zoning ordinances in order to alleviate conditions peculiar to a particular parcel of property

Question 133

Variance- area restrcition

Answer 133

the petitioner must show that there are practical difficulties in meeting the requirements of the zoning code or that the requirements are unreasonable or create an undue hardship

Question 134

Variance- use restriction

Answer 134

the petitioner must show undue hardship, meaning that without a use variance, there is no viable use of the property

Question 135

Special use permit- zoning

Answer 135

required for uses in an area not zoned for those uses, but which would be beneficial to the public welfare and compatible with the area

an applicant for a special use permit is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners

Question 136

Conditional use permit- zoning

Answer 136

required for uses in a area not zoned for those uses, but which would be beneficial to the public welfare, and compatible with the area if certain conditions are met

granted only if the applicant agrees to meet the additional conditions

applicant is entitled to a public hearing that has been noticed to all who might have an interest in the application, including nearby property owners

Question 137

Lateral support

Answer 137

right of a landowner to physical support of his land in its natural state by adjoining land

landowner has an absolute right to lateral support, therefore if adjoining landowner fails to provide lateral support, the adjoining landowner will be strictly liable for any damages suffered

Question 138

Lateral support main question

Answer 138

if the land has been improved, would the property have subsided anyway or was it the weight of the improvement that caused the land to subside?

if the land would have subsided anyway (due to natural state)- remains strictly liable

if the weight of the improvement caused the land to subside, the adjoining landowner is liable only if there was negligence in depriving the neighboring property of lateral support

Question 139

Subjacent support

Answer 139

the right of support extends to:
land in its natural stat; and
buildings existing on the date when the subjacent estate was severed from the surface
however, the underground landowner is liable for damages to subsequently erected buildings only if he is negligent

Question 140

Riparian view - water rights

Answer 140

anyone who is within the watershed (touches lake or stream) has a right to make reasonable use of the water

Question 141

Prior appropriation/use view- water rights

Answer 141

awards the right to use the water to the first person to take the water for beneficial purposes

Question 142

Common enemy rule- diffuse surface water

Answer 142

floodwater can be diverted by an method onto another’s land

Question 143

Civil law rule- diffuse surface water

Answer 143

no interference with any surface water is allowed

Question 144

Reasonable use rule- diffuse surface water

Answer 144

surface water can be diverted onto another’s land if using reasonable means to do so

Question 145

Modified common enemy rule- diffuse surface water

Answer 145

a landowner may not collect the surface water and channel it onto the land of another and must exercise ordinary care

Question 146

Statute of frauds

Answer 146

requires a writing for a transfer of an interest in real property
must be signed by the party to be changed and must include:
description of the property,
description of the parties,
price, and
any conditions of price or payment, if agreed on

Question 147

SoF exceptions

Answer 147

doctrine of part performance

equitable and, under the modern trend, promissory estoppel

Question 148

Doctrine of part performance (SoF exception)

Answer 148

may be used to enforce an otherwise invalid oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract
showing of at least two of the following must be made:
payment of all or part of the purchase price,
taking of possession, or
making substantial improvements

Question 149

Equitable and, under modern trend, promissory estoppel (SoF exception)

Answer 149

may be used to prove an oral contract for the sale of land
equitable estoppel based on an act or a representation
promissory estoppel is based on a promise