Real Property Flashcards
Elements for adverse possession
EACHO
Exclusive; Actual; Continuous; Hostile; Open and Notorious
How is an adverse possessor’s claim to exclusivity affected by a familial relationship with the actual owner?
If prospective adverse possessor is a family member, they are presumed to have permission, thus not exclusive. Rebuttable presumption
What is the subservient estate?
Land subject to the easement
What is the dominant estate?
Land benefitted by the easement
When does an easement by necessity arise?
when property is divided and, as a result, a portion becomes landlocked and cannot be accessed without use of the easement. Property must virtually useless without easement.
how to create an easement by prescription
Continuous, actual, open, and hostile for 15 years
(this is the easement equivalent of adverse possession but need not be exclusive)
Statutory period for adverse possession
15 years
How to create easement by estoppel?
Good faith, reasonable, detrimental reliance on permission by servient estate holder, created to prevent unjust enrichment.
What is easement appurtenant (context of transfers)? How does it transfer?
Easement tied to the land. Easements are presumed to be appurtenant.
Both the benefit and the burden of an easement appurtenant automatically transfers with the transfer of estate.
What is easement in gross and how does it transfer?
Easement that benefits a particular person, not the estate. Burden automatically transfers with transfer of servient estate. The benefit is only transferrable if commercial or if non-commercial parties intended for it to transfer.
How to create an express easement
Must satisfy SOF
Easement by implication
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity). Because an owner cannot have an easement on his own land, the prior use is considered a “quasi-easement.”
What is a negative easement and how is it created?
Prevents an owner from using land in specific ways.
It must be expressly created by writing signed by grantor (or through estoppel), and usually only recognized for light/air/support/stream water from artificial flow
Ways to terminate an easement
Written release (SOF);
Merger;
Severance;
Abandonment;
construction, condemnation, prescription, estoppel, or end of necessity
Doctrine of Merger
Land sale contract merges with deed at closing, and the seller is no longer liable for breach of contract provisions pertaining to title
Contract terms collateral to title
Do not merge with deed, even where the parties have expressly agreed
Partition of property
A Tenant in Common or a Joint Tenant usually has the right to unilaterally partition property
Paritition in Kind
Physical division of the property. Preferred by Courts
Agreement not to partition
This is enforceable but the agreement must be clear, and the time limitation must be reasonable
Improvements in Property
A co-tenant is entitled to compensation for the value of improvements made to jointly held property when that property is partitioned.
What happens when two people form a Tenancy by the Entirety with the right of survivorship but fail
A joint tenancy w/the right of survivorship will be created
What are the three defeasible fees?
(1) Fee Simple Determinable
(2) Fee Simple Subject to Condition Subsequent
(3) Fee Simple Subject to Executory Interest
Fee Simple Determinable
Limited by specific durational language (“so long as,” “while,” “during,” “until,” etc)
Automatically terminates upon happening of stated event
Future interest: grantor retains possibility of reverter
Fee Simple Subject to Condition Subsequent
Limited by specific conditional language (“provided that,” “but if,” “if it happens that”)
Terminates only if grantor affirmatively demonstrates intent to terminate
Future Interest: Grantor reserves right to terminate estate upon happening of stated event; grantor must specifically retain right to reenter
Fee Simple Subject to Executory Interest
Like FSSCS but future interest held by a third party
Requirements for a valid deed
(1) Meet certain formalities; (2) be delivered by the grantor; and (3) be accepted by the grantee
English Covenants of Title
Present
1) Covenant of right to convey
2) Covenant of Seisen (grantor owns land as described in deed)
3) covenant of free from encumbrances;we
Future
4) Covenant of quiet possession
5) covenant of futher assurances
6) Warranty
