Real Property

Question 1

What are the 3 forms of concurrent ownership?

Answer 1

1) Joint tenancy = two or more own w/ a right of survivorship 2) Tenancy by the entirety = a protected marital interest b/t married partners w/ the right of survivorship 3) Tenancy in common = two or more own w/ NO right of survivorship

Question 2

What are the features of a joint tenancy?

Answer 2

1) The right of survivorship: when 1 JT dies, his share passes AUTOMATICALLY to surviving JTs NOTE: if second to LAST JT dies (i.e. only 1 is left), the JT ENDS 2) A JT’s interest is alienable but is NOT devisable (via will) or descendable (via intestacy) b/c of the right of survivorship

Question 3

How do you create a joint tenancy? NOTE: NY Distinction

Answer 3

1) Need the 4 unities (“T-TIP”)…JT’s must take their interests: Time: at the same time Title: by the same title (instrument, e.g. deed) Interest: w/ identical interests Posess: w/ right to posess the whole 2) Grantor must CLEARLY/EXPLICITLY express the right of survivorship 3) (If want to self-create JT w/ 3d party) Use a straw (a middleman) First, convey to straw Second, straw conveys back to grantor and 3rd party so 4 unities are present NY DISTINCTION: by statute there is NO need to use a straw in NY

Question 4

What are the 3 ways tosevering a joint tenancy? NOTE: NY Distinction

Answer 4

“S-P-A-M” 1) SALE: a joint tenant can sell/trnfr her interest during her lifetime (EVEN w/o the knowledge/consent of the other tenants) Buyer becomes a tenant in common If there were originally 3 or more JTs, then among the remaining joint tenants the joint tenancy survives Equitable conversion: simply entering into Kto sell severs JT 2) PARTITION: 3 variations to partition and sever a JT Voluntary Agreement: peaceful severance (no need for ct to step in) Partition in Kind: judicial action for physical division IF in best interests of ALL parties (more likely if the property is bountiful) Forced Sale: judicial actionIF sale in best interests of ALL; proceeds divided proportionally (more likely when JT is in a single property) 3) AND 4) MORTGAGE: depends on jx theory… Title Theory: mortgage/lien severs (minority rule) Lien Theory: mortgage/lien does NOT sever (NY DISTINCTION: NYfollows this rule)

Question 5

What are the features of the tenancy by the entirety? NOTE: NY Distinction

Answer 5

Tenancy by the entirety = a protected marital interest b/t married partners w/ the right of survivorship This is a VERY protected form of co-ownership Creditors of only ONE spouse can’t touch this tenancy NY DISTINCTION: in NY, one spouse may mtg his interest and his creditor may enforce against THAT interest, but ONLY as to the debtor spouse’s share. The right of survivorship MUST NOT be compromised Neither tenant (spouse), acting ALONE, can defeat the right of survivorship by unilateral transfer to a 3d party DEATH or DIVORCE will severa TBTE

Question 6

How can a tenancy by the entirety be created?

Answer 6

It is created b/t MARRIED partners w/ the RIGHT of survivorship It arrises PRESUMPTIVELY in any conveyance to married partners (unless stated otherwise by the GRANTOR)

Question 7

What are the features of a tenancy in common?

Answer 7

Tenancy in common = two or more own w/ NO right of survivorship each co-tenant owns an INDIVIDUAL part and each has a right to posess the WHOLE each interest is devisable (by will); descendable (by intestacy); AND alienable; there are NO survivorship rights b/t tenants

Question 8

What are the 5rights AND responsibilities of co-tenants (tenancy in common)? NOTE: NY Distinction

Answer 8

1) Posession: each CT is entitled to posess and enjoy the WHOLE (otherwise wrongful ouster) 2) Rent: CT in exclusive possession (w/o ouster) is not liable to other CTs for rent, BUT IF CT rents all/part of TIC to 3rd party, must pay other CTs proportionate share of rental income 3) Adverse possession: unless ouster, NO adverse possession by another CT b/c NO hostility NY DISTINCTION: in NY, a CT may acq full title by adverse posession if he has EXCLUSIVE posession for 20 CONTINUOUS yrs (i.e. an implied ouster) 4) Carrying costs/improvements: each CT responsible for: Proportionate share carrying costs (tax/mortgage) Proportionate share of costs of necessary repairs (if other CTs notified by repairing CT) BUT NOT responsible for “improvements” made by another CT (subjective) 5) Waste: a CT must not commit waste (voluntary, permissive, ameloriative) Other CTs can bring a waste action DURING the life of the tenancy in common

Question 9

How can a tenancy in common be severed?

Answer 9

Severance can be by (i) voluntary; (ii) partition in kind; OR (iii) forced sale At partition, for any improvements… the improving CT is entitled to a credit equal to any increase in value caused by her efforts; OR the “improving” CT would bear full liablity for any drop in value caused by her efforts

Question 10

What is a fee simple absolute?

Answer 10

Fee simple absolute = the ABSOLUTE ownership of potentially infinite duration 1)Language used to create: “To A and his heirs” “To A” 2) Transferability: Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) 3) Future Interest: NO accompanying future interest

Question 11

What is a fee tail?

Answer 11

Fee tail = estate where inheritability is LTD to lineal heirs, which lasts as long as there are lineal blood decendants of grantee NOTE: most jx have ABOLISHED fee tails; an attempt to create a fee tail today leads to fee simple absolute 1)Language used to create: “To A and his heirs of his body” 2) Transferability: Passes automatically to grantee’s lineal decendants 3) Future Interest: Reversion (if held by grantor)

Question 12

What are the 3 defeasible fees?

Answer 12

1) Fee Simple Determinable 2) Fee Simple Subject to Condition Subsequent 3) Fee Simple Subject to Executory Limitation

Question 13

What is a fee simple determinable? NOTE: NY Distinction

Answer 13

Fee simple determinable = a defeasible fee that terminates upon the occurance of a stated event and AUTOMATICALLY reverts back to grantor NY DISTINCTION: In NY the fee simple determinable is called a Fee on limitation 1)Language used to create: “To A… for so long as [event…] during [event…] while [event…] until [event…] NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever)restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: Possibility of reverter

Question 14

What is a fee simple subject to condition subsequent? NOTE: NY Distinction

Answer 14

Fee simple subject to condition subsequent= a defeasible fee that gives grantor the RIGHT to terminate upon the occurance of a stated event (i.e. must file an ejectment action) NY DISTINCTION: In NY the fee simple subject to condition subsequent is called a fee on condition 1)Language used to create: “To A,… but if [event…], upon condition that [event…], provided that [event…], if it happens that [event…] …grantor reserves the right to reenter and retake” NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever) restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: Right of entry/power of termination (held by grantor) NY DISTINCTION: In NY right of reentry is known as right of reaquisition

Question 15

What is a fee simple subject to executory interest?

Answer 15

Fee simple subject to executory interest= a defeasible fee that terminates upon a stated event and then passes to a third party (vs. reversion to grantor) 1)Language used to create: Fee simple s/t shifting executory interest… “To A,… for so long as [event…], while[event…], during[event…], until[event…] …then to B” Fee simple s/t springing executory interest… To A if and when [even…] NOTE: words of desire, hope, or intention are INSUFFICIENT to create a defeasible fee 2) Transferability (ALL subject to condition): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) NOTE: an absolute (i.e. forever) restraint on alienability as a condition IS void (e.g. “To A so long as she never attempts to sell”) 3) Future Interest: The shifting/springingexecutory interest (3d party) [which is subject to the RAP!]

Question 16

What is a life estate?

Answer 16

Life estate= an estate that is measured by the life of transferee; OR by some other life (pur autre vie) 1)Language used to create: “To A for life” (simple life estate) “To A for the life of B” (life estate pur autre vie) “To A for life, then to B” (B has indefeasibly vested remainder) “To A for life, but if…, to B” (B has contingent remainder) 2) Transferability (IF pur autre vie AND measuring life is still alive): Devisable (can pass by will) Descendible (will pass via statutes of intestacy if holder has no will) Alienable (capable of inter vivos transfer) 3) Future Interest: Reversion (if held by grantor) Remainder (if held by a 3d party)

Question 17

What is a life tenant’s entitlements and restrictions?

Answer 17

The life tenant… 1) is entitled to all ORDINARY uses and PROFITS from the land 2) must NOT commit “waste” (i.e. something that hurts the future interest holder’s interest)

Question 18

What are the 3 types of waste that a life tenant can commit? NOTE: NY Distinction

Answer 18

3 types of waste… 1) Voluntary or affirmative waste = overt conduct that causes a drop in value (i.e. willful distruction, consumption of natural resource on property) “PU-R-G-E” EXCEPTIONS… Prior Use, meaning that prior to grant, the land was used for exploitation; life tenant can CONTINUE to exploit (unless otherwise agreed) and subject to Open Mines Doctrine (if mining was done on land, the life tenant can mine from existing mines, BUT NOT new ones) Repairs, meaning the life tenant may consume natural resources for REPAIRS and MAINTANENCE Granted, meaning the life tenant may exploit if GRANTED that right Exploitation, meaning the land is suitable ONLY to exploit (e.g.a quarry) 2) Permissive waste or neglect = this occurs when the land falls into disrepair The life tenant must simply MAINTAIN the premises in reasonably good repair MUSTpay all ordinary TAXES and INTEREST on mtgs (NOT principal) NOTE: if the life tenant fails to pay taxes or interest, the gov’t/mtgee can FORECLOSE on the property, which will CUT OFF the interest to the remaindermen 3) Ameliorative waste = the life tenant must not engage in acts that ENHANCE the property value, UNLESS all future interest holders are KNOWN and CONSENT EXCEPTION: if changed conditions have rendered a piece of property UNIHABITABLE, we will allow a life tenant to tear down that structure and replace (Changed Condition Doctrine) Policy = protects the sentimental value for future interests NY DISTINCTION = In NY via statute, life tenant MAY make reasonable improvements UNLESS remaindermen object

Question 19

What are the 8 types of future interests?

Answer 19

3 interests created in GRANTOR 1) Possibility of Reverter (ONLY accompanies the fee simple determinable) 2) Right of Entry/Power of Termination (ONLY accompanies the fee simple subject to a condition subsequent) 3) Reversion (ONLY accompanies the life estate) 5 interests created in a TRANSFEREE 4) IndefeasiblyVested Remainder(ONLY accompanies the life estate OR term of years) 5) Vested Remainder s/t Complete Defeasance(ONLY accompanies the life estate OR term of years) 6) Vested Remainder s/t Open(ONLY accompanies the life estate OR term of years) 7) Contingent Remainder (ONLY accompanies the life estateOR term of years) 8) Executory Interest (ONLY accompanies fee simple subject to executory limitation)

Question 20

What is a remainder AND what are the 4 types?

Answer 20

Remainder = a future interest created in a grantee that is capable of becoming posessory on the natural expiration of the preceeding estate (i.e. it can NEVER cut short the preceeding estate) ONLY follows a life estate OR a term of years A remainderman is “patient and polite” TYPES: (i) contingent remainder; (ii) indefeasibly vested remainder; (iii) vested remainder s/t complete defeasance; AND (iv) vested remainder s/t open

Question 21

What is acontingent remainder? NOTE: NY Distinction

Answer 21

Contingent remainder = a remainder that is created in (i)an UNACERTAINED/UNBORN person;(ii) is subject to a CONDITION PRECEDENT; (iii) or BOTH Unacertained/unborn e.g. =”To A for life, then to B’s first child (TBD)” Condition precedent e.g. = “To A for life, then, IF B graduates from college, to B” If B graduates college while A is alive, then B’s contingent remainder BECOMES an indefeasibly vested remainder If the contigency never occurs, the original GRANTOR has a reversion NOTE: contingent remaiders are OPEN TO the Rule Against Perpetuties NY DISTINCTION: NY has abolished the distinction b/t an EXECUTORY INTEREST and a CONTINGENT REMAINDER. Instead BOTH are called remainders s/t a condition precedent

Question 22

What is the Rule of Destructability of Contingent Remainders? NOTE: NY Distinction

Answer 22

TheRule of Destructability of Contingent Remainders… HISTORICALLY at common law: a contingent remainder was DESTROYED if it was still contingent at the time the preceeding estate ended TODAY: the Rule has been abolished; if still contingent at end of preceding estate, then grantor (or his heirs) hold the estate subject to a springing executory interest NY DISTINCTION: the Rule has been ABOLISHED in NY

Question 23

What is the Rule in Shelley’s Case? NOTE: NY Distinction

Answer 23

TheRule in Shelley’s case… Applies ONLY to this type of contingent remainder: “To A for life, then, on A’s death, to A’s heirs” A is alive. HISTORICALLY at common law: the present and future interests would MERGE giving a fee simple absolute (in order to promote alienability) This rule was applied EVEN IF it went against the grantor’s intent TODAY: the Rule has been abolished; A would have a life estate and A’s heirs would have a contingent remainder NY DISTINCTION: the Rule has been ABOLISHED in NY

Question 24

What is the Doctrine of Worthier Title? NOTE: NY Distinction

Answer 24

TheDoctrine of Worthier Title… Applies when: the GRANTOR tries to create a future interest in his OWN heirs “To A for life, then to O’s heirs” This is a contingent remainder b/c O is still alive (AND HAS NO HEIRS) The Doctrine would make the contingent remainder in GRANTOR’s heirs VOID (i.e. A would have a life estate and O would have a reversion) BUT, grantor’s intent CNTRLS (i.e. if he INTENDED-with a clear stmt-to create a contingent remainder in his heirs, then it shall exist) NY DISTINCTION: the Doctrine has been ABOLISHED in NY

Question 25

What is a indefeasibly vested remainder?

Answer 25

The holder of this remainder is CERTAIN to acquire an estate in the future, NO STRINGS ATTACHED Language used to create “To A for life, remainder to B” A is alive. B is alive A has a life estate B has a indefeasibly vested remainder Grantor has a reversion NOTE: If remainder predeceases the life tenant, the future interest passes by will or intestacy

Question 26

What is a vested remainder s/t complete defeasance? NOTE: NY Distinction

Answer 26

The remainderman exists and is NOT s/t a condition precedent, BUT his posession could be cut short by a CONDITION SUBSEQUENT Language used to create Comma rule= if conditional language appears AFTER language that would (by itself) created a vested remander, it’s a CONDITION SUBSEQUENT; if language appears BEFORE then it’s a CONDITION PRECEDENT “To A for life, remainder to B, PROVIDED, HOWEVER, that if B dies under the age of 25, to C” A is alive. B is 20 A has a life estate B has a vested remainder s/t complete defeasance (and will take upon A’s death) C has a shifting executory interest Grantor has a reversion NY DISTINCTION: in NY it’s known as remainder vested s/t complete defeasance

Question 27

What is a vested remainder s/t open?

Answer 27

A remaider is vested in a GROUP of takers, at least ONE OF WHOM is qualified to take, BUT each class member’s share is subject to partial diminution b/c ADDITIONAL takers can still join the group Language to create “To A for life, then to B’s children [OPEN].” A is alive. B has two children, C & D Open class vs. closed class 1) Open = others can still join the group 2) Closed = no other can join the group Determined by rule of convenience, which happens WHENEVER any class member can demand posession (i.e A’s death) EXCEPTION: under the womb rule, a child of B in the womb @ time of A’s death can share w/ C & D NOTE: vested remaiders s/t open are OPEN TO the Rule Against Perpetuties

Question 28

What is anexecutory interest? NOTE: NY Distinction

Answer 28

It’s a future interest created in a transferee (third party), which is NOT a remainder and which takes effect by either CUTTING SHORT (i) some interest in ANOTHER person (“shifting”); OR (ii) in the GRANTOR (springing) 1) Shifiting executory interest Always follows a defeasible fee ANDcuts short someone OTHER than grantor “To A and her heirs, but if B returns from Canada, to B and his heirs” A has a fee simple s/t shifting executory interest B has a shifting executory interest 2) Springing executory interest Always follows a defeasible fee AND cuts short the GRANTOR “To A, if and when he marries” A has a springing executory interest O has afee simple s/t executory interest NOTE: an executory interests areOPEN TO the Rule Against Perpetuties NY DISTINCTION: NY has abolished the distinction b/t an EXECUTORY INTEREST and a CONTINGENT REMAINDER. Instead BOTH are called remainders s/t a condition precedent

Question 29

What is the Rule Against Perpetutities (RAP)?

Answer 29

RAP = Certain kinds of FUTURE INTERESTS are VOID if there is ANY POSSIBILITY (no matter how remote) that the given interest may vest more than 21 YEARS after the death of a measuring life

Question 30

What are the 4 steps to assessing anyRule Against Perpetutities (RAP) issue?

Answer 30

Step 1: determine which future interest have been created by the conveyance RAP ONLY applies to: (i) contingent remainders; (ii) certainvested remainders s/t open; AND (iii) executory interests E.g. “To A for life, then to A’s children” A is alive and has NO children (A’s children have a contingent remainder) RAP DOES NOT apply to: (i) any future interest in GRANTOR; (ii) indefeasibly vested remainders; OR vested remainders s/t complete defeasance Step 2: identify the conditions precedent to the vesting of the suspect future interest (i.e. what must happen in order for the future interest can take posession) From previous e.g., A must die leaving a children in order for it to take posession Step 3: find a measuring life (i.e. a person that is ALIVE at the date of the conveyance whose life/death is RELEVANT to the condition occurance) From previous e.g., A qualifies as the measuring life Step 4: Ask: will we know, with CERTAINTY, within 21 yrs of the death of our measuring life (A) if our future interest holder(s) CAN or CANNOT take? Yes? the future interest is VALID The previous e.g. is valid b/c we’d know at A’s death whethor or not he’d have children No? the future interest is VOID Must apply Fertile Octogenarian Rule (you can have a child whenever) and the MOST remote scenarios (i.e parade of horribles)

Question 31

What are the 3bright line rules re: common law Rule Against Perpetuties (RAP)?

Answer 31

1) A gift to an OPEN CLASS that is conditioned on the members surviving to an age BEYOND 21 violates the common law RAP “Bad as to one, bad as to all” – to be valid, it must be shown that the condition precedent to EVERY class member’s taking will OCCUR w/in the 21 yr pd E.g. “To A for life, then to such of A’s children as to live to atain the age of 30.” A has two children, B and C who are 35 and 40. A is alive&raquo_space; future interest is VOID (A may have a child a day before he dies) and BECOMES a reversion in O 2) An executory interest with NO TIME LIMIT for vesting violates the common law RAP E.g. “To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used to B and his heirs”&raquo_space; executory interest violates RAP (as we don’t know at A’s death whether the condition will be met) and BECOMES a fee simple determinable (with possiblity of reverter) 3) A GIFT from one charity to another WILL NOT violate the RAP E.g. “To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they ceased to be so used, then to the YMCA” (normally NOT ok under RAP)

Question 32

What are the 3reforms to the Rules of Perpetuity (RAP)? NOTE: NY Distinction

Answer 32

1) “Wait and see” or “second look” doctrine: wait until end of measuring life to adjudicate future interest (no more parade of horribles). 2) The Uniform Statutory Rule Against Perpetuities: provides alternative 90 YEAR vesting period 3) Cy pres doctrine: “as near as possible”; a ct. may reform in such a way that most closely maintains grantor’s intent WHILE comporting with the RAP (i.e. reducing any offensive age contingency to 21 yrs) NY DISTINCTION: the NY reform statute applies the common law RAP and REJECTS the wait and see approach and cy pres (judicial) doctrineEXCEPT for charitable trusts AND pwrs of appointment If an interest is invalid b/c condition requires age > 21 yrs, a ct WILL reduce age to 21 The common law Fertile Octogenarian principle is modifed providing that women OVER AGE of 55 are presumed to not have any more children The NY “suspension” rule (Trusts and Wills) applies the common law RAP on restrictions of pwr to sell or trnfr

Question 33

What are the 2 steps in the conveyance of real estate?

Answer 33

1) The land K, which endures UNITILL… 2) The closing, where the DEED becomes the operative document

Question 34

How is risk of loss apportioned in land sales? NOTE: NY Distinction

Answer 34

The std is Equitable Conversion = once the K is signed, the buyer is the owner of he land (s/t the condition to pay purchase price at closing) At sigining, the risk of loss (i.e. destruction without FAULT) is on the BUYER (i.e. has to pay FULL K price), UNLESS the K states otherwise NY DISTINCTION: in NY so long as the buyer is w/out fault, the ROL remains with the SELLER until the buyer takes possession

Question 35

What are the requirements of the land K?

Answer 35

1) The land K must be in WRITING, signed by the would-be ∆ (p/t SOF) SOF EXCEPTION: the “doctrine of part performance”; if you have TWO of the following THREE elements, DON’T need a writing… Buyer takes possession; Buyer pays ALL or PART of the price; Buyer makes subtl improvements 2) It must describe blackacre and state some consideration? When the amt of land receited in the K is MORE than the actual size of the parcel, the REMEDY is specific performance w/ a pro rata reduction in price

Question 36

What are 2 implied promises in everyland K?

Answer 36

1) Seller promises to provide MARKETABLE title at the closing The std = the title is free from reasonable doubt (i.e. free from litigation or the threat of litigation) UNMARKETABLE TITLE = Title acq’d by adverse possession (even if just PART of title) BUT, if the seller brings a succesful c/a action to quiet title and is successful, then CAN sell Encumberances (no servitudes or mtgs UNLESS waived by buyer) [NOTE: seller has a right satisfy existing mtg w/ sale proceeds] Zoning violations (BUT not when blackacre is subject to an adverse zoning req) 2) Seller promises not to make any false stmt of material fact Seller is liable for failure to disclose LATENT material defects Even if K states a general disclaimer of liability (e.g. “property sold as is”), it wont relieve seller from liability for FRAUD or FAILURE to disclose

Question 37

Do land Ks contain implied warranties of fitness OR habitability?

Answer 37

At common law, NO! (caveat emptor) EXCEPTION: the implied warranty of fitness and workmanlike construction APPLIES to sale of a NEW home by a BUILDER vendor

Question 38

What is the purpose of a deed?

Answer 38

At closing, the deed PASSES legal title from the seller to the buyer

Question 39

What are the 4 requirements for a deed to pass legal title?

Answer 39

“L-E-A-D” = Lawfully Executed And Delivered 1) Lawful execution of the deed 2) Delivery of the deed

Question 40

What is the std for the lawful execution of a deed?

Answer 40

The std = the deed must be (1) in WRITING (signed by the grantor); AND (2) have a DESCRIPTION of the land The land description doesn’t have to be perfect, just UNAMBIGUOUS YES: “All of O’s land” NO: “Some of O’s land” NOTE: need not recite consideration, NOR must consideration pass to make a deed valid

Question 41

What is requirements for a deed to be properly “delivered”?

Answer 41

“Delivery” is accomplished… 1) When grantor PHYSICALLY transfers deed to the grantee (via the mail, agent OR messenger); 2) When the deed has been LEGALLY transfered (governed by grantor’s present INTENT); OR 3) When delivered by ESCROW (via an escrow agent once conditions are met); BUT 4) NOT when the grantee expressly REJECTS the deed NOTE: if deed (absolute on its face) is transferred to grantee with an oral condition, the oral condition DROPS OUT (it’s not provable), BUT delivery is accomplished

Question 42

What are the 3 types of deeds? NOTE: NY Distinction

Answer 42

1) The quitclaim deed (containing NO cov’ts) 2) The general warranty deed (containg 6 cov’ts) 3) The statutory special warranty deed (containing 2 cov’ts) NY DISTINCTION: in NY known as a “bargain and sale deed”

Question 43

What is a quitclaim deed?

Answer 43

A deed that conatins NO COV’TS Grantor isn’t even promising that the deed won’t have any post-closing issues (BUT the sales K has an implied promise to deliver marketable title at CLOSING) The WORST possible deed for a buyer

Question 44

What is a general warranty deed AND it’s 6 cov’ts?

Answer 44

The general warranty deed warrants against ALL defects in title, INCLUDING those due to grantors predecessors 3 present cov’ts whereSOL starts running from the instance of delivery at closing 1) Cov’t of seisin = promise that the grantor owns this estate 2) Cov’t of right to convey = promise that grantor has the pwr to trnfr (i.e. he’s under no RESTRAINT or DISABILITY like age/sound mind) 3) Cov’t against encumbrances = promise that there are NO servitudes or mtgs on blackacre 3 future cov’ts where SOL for breach does not begin to run UNTIL the breach occurs (e.g. the date of the disturbance) 1) Cov’t for quiet enjoyment = promise that grantee won’t be DISTURBED in possession by a 3d party’s lawful claim of title 2) Con’t of warranty = promise that grantor will defend grantee against lawful claims of title asserted by others (indemnification) 3) Cov’t for further assurances = promise that grantor will do what’s needed to perfect to the title in the future (post-closing)

Question 45

What is a statutory special warranty deed AND its 2 cov’ts? NOTE: NY Distinction

Answer 45

Deed that’s provided for by statute in many states, containing TWO promises that the grantor makes ONLY on behalf of himself (and NOT on behalf of his predecessors) 1) Grantor promises that he hasn’t conveyed this estate to anyone other than grantee 2) The estate is free from encumberances made by the grantor NY DISTINCTION: in NY this type of deed is called a bargain and sale deed

Question 46

What is the shelter rule?

Answer 46

Scenario: O→A (does NOT record); O→B, BFP (records); B→C (C is B’s heir, and has knowledge of O→A transaction, so NOT a BFP) Shelter rule says… C takes shelter in B’s BFP status (steps into B’s shoes). Protects B, and BFP’s right to transfer land

Question 47

What are the 2 types of recording statutes? NOTE: NY Distinction

Answer 47

2 types of jx: race notice jx (rnjx) vs. notice jx (njx) 1) Rnjx: If B is a BFP, and were are in a rnjx, B wins IF she records properly before A NY DISTINCTION: This is the rule in NY 2)Njx: the LAST BFP (B) wins regardless of who records first

Question 48

What is a bona fide purchaser (BFP)?

Answer 48

Bona Fide Purchaser (BFP) = 1) Purchases land for value; AND 2) Does not have notice of another’s claim to land “Notice” = “A-I-R” Actual; Inquiry (whatever examination of land would reveal); OR Record (properly recorded)

Question 49

How do you identify a notice statute vs. a race-notice statute?

Answer 49

1) Notice statute = “A conveyance of an interest in land shall NOT be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.” 2) Race-notice statute(NY!!) = “Any conveyance of an interest in land shall NOT be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is 1st recorded.”

Question 50

What is estoppel by deed?

Answer 50

One who conveys property in which she has no interest, but subsequently acquires an interest is estopped from later denial of the validity of the initial transfer B/t 1960-1969 X is estopped from denying the trxn; A would win during this time… BUT after 1970, when B is a BFP, he’d have title under rnjx and njx (A’s recording in 1950 is a nulltity as he recorded too early) ——————–

Question 51

What is a wild deed?

Answer 51

Scenario: O→A (does NOT record); A→ B (B records) Wild deed is a recorded deed that has a grantor (here A) unconnected to the chain of title (b/c A never recorded O→A transfer) A wild deed INCAPABLE of giving record notice to subsequent BFPs B’s recording is VOID Here, if O→C (BFP; records), then the A→B wild deed does NOT give C notice; C WINSin both rnjx ORnjx —————-

Question 52

What are 4 types of leaseholds/non-freehold estates?

Answer 52

1) Tenancy for years 2) Periodic tenancy 3) Tenancy at will 4) Tenancy at sufferance

Question 53

What is the tenancy for years?

Answer 53

Tenancy for years = a lease for a FIXED PD of time (i.e. 2 DAYS – 50 yrs) aka Estate for Years or Term of Years NO notice requirement for termination b/c agreement states at outset when lease expires If term = +1 yr (366 days) must be in writing (SOF)

Question 54

What is the periodic tenancy? NOTE: NY Distinction

Answer 54

A lease that continues for successive intervals until LL or T gives proper notice of termination Express creation: “month-to-month”; “yr-to-yr”; “week-to-week” Implied creation: 3 ways to create implied periodic tenancy Land is leased w/ no mention of duration, but rent pd at set intervals Oral lease for +366 days (violates the SOF); interval is based on intervals when rent is tendered If LL elects to holdover residential lessee who stayed on past conclusion of the original lease, periodic tenancy based on interval of payment NY DISTINCTION: the LL who elects to holdover a tenant creates an implied MONTH-TO-MONTH periodic tenancy, UNLESS otherwise agreed

Question 55

How is aperiodic tenancy terminated?

Answer 55

Termination by giving notice at least duration = to period (weekly lease needs 1 week notice, EXCEPT 1 yr, which needs only 6 months) By private agreements, parties may LENGTHEN or SHORTEN the common law pds Must end at the end of natural lease period (e.g. ends on 1st, termination on 1st)

Question 56

What is a tenancy at will? NOTE: NY Distinction

Answer 56

A tenancy for NO FIXED duration Must be expressly agreed-to: if not, court will treat as implied periodic tenancy Tenancy may be terminated by EITHER PARTY at ANY TIME (but a reasonable demand to vacate is usually needed) NY DISTINCTION: in NY the terminating LL must give a MINIMUM of 30 days written notice of termination

Question 57

What is a tenancy at sufferance?

Answer 57

Is created when T has WRONGFULLY held over past the expiration of the lease Created so LL can recover rent from T who wrongfully holds over past expiration This tenancy last ONLY UNTIL LL either evicts T or elects to hold T to a new tenancy See Hold-Over Doctrine

Question 58

What is theHold-Over Doctrine? NOTE: NY Distinction

Answer 58

If a T CONTINUES to possess property after his lease is up, the LL can (i) evict T; OR (ii) hold T to NEW TENANCY Commercial T = may be held to a yr-to-yr (if the lease was for ≥ 1yr) OR mo-to-mo (if the lease was for < 1yr) Residential T = can ONLY be held to mo-to-mo (REGARDLESS of lease term) If there is NOTICE of rent increase BEFORE lease expires, then new tenancy will be at increased rent NY DISTINCTION: The LL’s acceptance of rent subsequent to the expiration of the term will create an IMPLIED month-to-month periodic tenancy (unless otherwise agreed) If a T who holds a lease of INDEFINITE duration, and henotifies LL of intention to VACATE premises, but fails to leave, the LL MAY CHARGE 2X the rent

Question 59

What are a tenant’s 3 duties?

Answer 59

1) T’s liability to 3d PARTY INVITEES 2) T’s duty to REPAIR 3) T’s duty to PAY RENT

Question 60

What are T’s duty to 3d party invitees?

Answer 60

T’s liability to 3d PARTIES (tort law) 1)T is responsible for keeping the premises in good repair 2) T is liable for injuries sustained by 3d parties T INVITED, even where LL promised to make all repairs NOTE: T may be able to seek indemnification from LL

Question 61

What is a tenant’s duty to pay rent? NOTE: NY Distinction

Answer 61

T’s duty to pay RENT 1) If T doesn’t pay rent AND remains on premises, LL… may EVICT T thru cts (still entitled to unpaid rent from T while on premises) may continue the relationship and SUE for rent may NOT engage in SELF-HELP (e.g. changing locks, forcible removal, removing T’s possessions); LL would be liable civilly and criminally NY DISTINCTION: LL who engages in self-help is liable for treble damages 2) If T doesn’t pay rent BUT T is off premises, LL may “S-I-R”… SURRENDER: LL could choose to treat T’s abandonment as an implicit offer and acceptance of surrender [NOTE: if unexpired term is > 1 yr, must be in writingsigned by LL (SOF)] IGNORE: LL could ignore the abandonment and hold T responsible for the unpaid rent (minority rule) RE-LET: the LL can re-let the premises and hold T responsible for the shortfall Majority rule: LL must at least TRY to re-let (mitigation) NY DISTINCTION: does NOT require a LL to mitigate damages by re-letting

Question 62

What is a tenant’s duty to repair? NOTE: NY Distinction

Answer 62

T’s duty to REPAIR… 1)…when the lease is SILENT T must maintain (but nothing more) the premises ANDmake ordinary repairs T must NOT commit waste (voluntary, permissive, ameliorative) Fixtures: a T may NOT remove a fixture (voluntary waste) Fixture = moveable chattel, by virtue of annexation to real property, objectively shows intent to improve (heating systems, custom storm windows, furnace, certain lights) Fixture status determined by (1) express agreement (agmt that says no fixture); (2) whether removal cause substantial harm (if so, yes); OR (3) if it’s a COMMERCIAL piece of property, a commercial T prior to expiration of a lease is entitled to remove all trade fixtures (i.e.Trade Fixtures Doctrine) 2)…when the lease has EXPRESS COV’T to maintain property At common law historically: T was liable for any loss to the property INCLUDING loss due to force of nature Today’s majority view: T is off the hook for natural disasters (gives T the option to END lease) NY DISTINCTION: T is off hook UNLESS he made express agmt to restore property when destroyed

Question 63

What are the 4duties of a landlord?

Answer 63

1) Duty to deliver posession 2) The implied cov’t of quiet enjoyment 3) The implied warranty of habitability 4) Duty NOT to commit retaliatory eviction

Question 64

What is the landlord’s duty to deliver possession?

Answer 64

1) The majority (English!) rule = LL must put T in PHYSICAL possession of the premises When lease starts, if someone is STILL IN THE APT, LL has breached lease and new T gets damages 2) The minority (American) rule = LL need only give T LEGAL possession (i.e. a signed lease)

Question 65

What is the landlord’s implied cov’t of quiet enjoyment?

Answer 65

T has a right to the quiet use/enjoyment of the premises w/o INTERFERENCE from LL Applies to BOTH residential AND commercial leases Can be breached by a wrongful eviction Can be breached by constructive eviction (elements = “S-I-N-G”) Substantial Interference due to LL’s actions or failures (a chronic problem suffices( Notice was given by T to LL of the problem Goodbye: the T must VACATE the premises w/in a reasonable time after LL fails to remedy LL is NOT liable for the acts of OTHER tenants EXCEPTION 1: LL must not permit a nuisance on site EXCEPTION 2: L must cntl all COMMON areas

Question 66

What is the landlord’s implied warranty of habitability?

Answer 66

The std: the premises must be fit for BASIC human dwelling (based on housing code/case law) Applies ONLY TO residential leases This warranty is NON-WAIVABLE E.g., no heat in winter; no running water; OR no plumbing When warranty is BREACHED, T can “MR3”…. Move out/end lease (BUT T doesn’t have to; Cf. constructive eviction) Repair and deduct (allowable by statute in a number of jx): T may make REASONABLE repairs and deduct their costs from future rent Reduce rent AND/OR withold all rent until a ct determines fair rental value (T must place witheld rent in escrow account) Remain in possession, pay rent AND affrimatively seek money damages

Question 67

What is the landlord PROHIBITED from doing if a T report a housing code violation?

Answer 67

If T lawfully reports LL for housing code violation, LL is BARRED from penalizing T by, for example… raising rent ending the lease harrassing T taking any other reprisals

Question 68

What are the 2 ways a tenant can transfer an interest in her lease? NOTE: NY Distincton

Answer 68

1) Assignment: T may freely transfer interest in whole E.g. T1 has 10 months remaining on a 2-yr term of years. T1 transfers all 10 months to T2. Once assigned, LL and assignee are in privity of estate (each is liable to the other for the cov’ts in the original lease); BUT they are not in privity of K unless assignee assumed all promises in the orig lease If lease is assigned AGAIN, the original assignee loses privity of estate and the NEW assignee is now in privity of estate w/ the LL LL and assignor remain secondarily liable to each other (as there is privity of K) NY DISTINCTION: default rule is no assignment (unless you get written consent from LL) 2) Sublease: T may freely transfer interest in part The LL and the sublessee are NEITHER privity of estate OR privity of K (the relationship b/t LL and subleasor remains fully in tact); BUT sublessee and sublessor are liable to each other NY DISTINCTION: default rule T in building w/ 4 or MORE units has right to sublease subject to LL consent, which CANNOT be unreasonably withheld NOTE: LL may expressly prohibit transfer in lease; BUT once LL consents to 1 interest transfer by particular T, LL CANNOT object to further transfers

Question 69

What is the standard for landlord tort liablity and the 5 key exceptions?

Answer 69

Rule = caveat lessee; in tort, LL has NO duty to make the premises safe 5 EXCEPTIONS (“C-L-A-P-S”) 1) Common areas: LL must maintain all common areas in tort (e.g. hallways and stairways) 2) Latent defect rule: LL must WARN T of hidden defects that LL knows abt OR should know abt JUST the duty to warn, NOT to repair 3) Assumption of repairs: LL who VOLUNTARILY makes repairs, must complete w/ reasonable care 4) Public use rule: LL who leases public space (e.g. a convention hall) AND who should know, b/c of the nature of the defect (large) and the length of the lease (short term), that T will not repair is liable for any defects on the premises 5) Short term lease of furnished dwelling: LL is liable for any defects on site

Question 70

What is lateral support?

Answer 70

If excavation causes collapse of bldgs on adjacent land: liability ONLY for negligence, UNLESS π can show that excavation would have caused collapse even on unimproved land (i.e. in its natural state), then S/L

Question 71

What are the 2 major systems for determining the allocation of water in watercourses (i.e. streams, rivers, and lakes)?

Answer 71

1) Riparian doctrine: the water belongs to ALL those who own the land bordering the watercourse (i.e. riparians) They SHARE the right of REASONABLE use of the water A riparian will be liable if his use UNREASONABLY interfers w/ others’ use Natural uses of the water (consumption, gardening, etc) PREVAIL over artifical uses (irrigation, manufacturing, etc) in scarcity situtations 2) Prior appropriation doctrine: right to divert can be ACQUIRED from state Riparian ownership doesn’t matter Priority is based on first in time, first in right An appropriative right CAN BE lost by abandonment

Question 72

What are are surface owner’s rights to ground (percolating) water?

Answer 72

The surface owner is entitled to make REASONABLE use of ground water Being WASTEFUL is never reasonable

Question 73

What is the common enemy rule?

Answer 73

Common enemy rule = landowner can change drainage/other improvements to combat the surface water flow (i.e. the common enemy) BUT…no unnecessary harm to another’s land (as modified in many jx)

Question 74

What are 2 key possessor rights?

Answer 74

1) Freedom from trespass: posessor can bring an EJECTMENT action for those who invade land with a physical object 2) Freedom from private nuisance: possessor is entitled to be free from substantial/unreasonable interference (no tangible invasion; e.g. odors or noise) BUT interference w/hypersensitive π is NOT nuisance

Question 75

What iseminent domain?

Answer 75

Is the gov’ts 5th Am pwr to take private property for PUBLIC use in exchange for JUST COMPENSATION Explicit takings = acts of gov’t condemnation Implicit/regulatory takings = a gov’t regulation that is so onerous as to WIPEOUT the economic benefit from the land Remedy = (i) compensate the owner; OR (ii) terminate the regulation and pay owner damages while reg was in effect

Question 76

What iszoning?

Answer 76

Pursuant to its police pwrs, the gov’t may enact statutes to reasonably cntrl land use Land owner can get around zoning law by seeking a VARIANCE (i.e. an administrative action) from zoning bd by… Proponent showing undue hardship; AND That the variance won’t decrease neighboring property values A ONCE lawful, existing use NOW deemed nonconforming by a new zoning ordinance CANNOT be eliminated all at once UNLESS just compensation is paid (otherwise an unconst. taking)

Question 77

What isan exaction?

Answer 77

Exactions are thos ammenities that the gov’t seeks in exchange for granting permission to build To be CONSTITUTIONAL, must be reasonably related BOTH in nature and scope to the impact of the proposed development

Question 78

What is a mortgage?

Answer 78

A mtg is the conveyance of a security interest in land, intended by the parties to be COLLATERAL for the repmt of a debt Mortgagor = one who has title and right to possession (the debtor) Mortgagee = has a lien (the creditor)

Question 79

What are2 types of mortgage?

Answer 79

Types of mortgage… 1) Legal (traditional) mortgage: in writing/signed (SOF) using property interest in land as collateral for loan 2) Equitable mortgage: physical handover of deed to creditor instead of a note to secure loan; IF creditor sells to BFP, debtor can ONLY sue creditor for damages (BFP owns land) NOTE: parol evidence FREELY admissible in dispute to show intent

Question 80

Once a mtg has been created, what are the parties’ rights?

Answer 80

Debtor mtg’r = UNLESS and UNTIL foreclosure, the debtor mtg’r has TITLE and RIGHT to possession Creditor mtg’ee = has a LIEN and the right to look to blackacre if there is a default

Question 81

What are the 2 ways a creditor-mtg’ee can trnr his interest in the mtg?

Answer 81

The creditor-mtg’ee can tnfr his interest by… 1) ENDORSING the note and DELIVERING to the transferee; OR If the note is endorsed/delivered the transferee is eligible to become a holder in due course (REVIEW!) 2) EXECUTING a separate document of assignment

Question 82

What is a holder in due course?

Answer 82

A transferee that takes the transferred note FREE of any personal defenses that could have been asserted against the ORGINAL creditor Thus, a HDC may foreclose the mtg DESPITE the presence of any such personal defenses against original creditor, like… Lack of consideration Fraud in inducement Unconsionability Waiver Estoppel A HDC is STILL subject to “real” defenses (M-A-D F-I-F-I4) Material Alteration Duress Fraud In the Factum Incapacity Illegality Infancy Insolvancy

Question 83

What are the 5 requirements to becoming aholder in due course?

Answer 83

1) A note must be NEGOTIABLE, made payable to the named mtg’ee; 2) The original note must be ENDORSED and SIGNED by the named mtg’ee; 3) The original note must be DELIVERED to the tnfr’ee (NO photocopies!); 4) The tnfr’ee must take in GOOD FAITH(w/o notice of any illegality); AND 5) The tnfr’ee must pay VALUE for the note (more than nominal $)

Question 84

What happens when a mtg’r sells land with a valid mtg in place?

Answer 84

The lien remains on the land SO LONG AS the mtg was properly recorded p/t rule of the recording statue(recording statutes protect both BFPs and mtg’ees) Apply the recording system rules p/t the operative recording statute BOTH buyer and seller/debtor are personally liable to the creditor/mtg’ee if buyer”assumed the mtg” ONLY seller/debtor (not buyer) is personally liable to the creditor/mtg’ee if buyer took “subject to the mtg” [BUT if seller/debtor doesn’t pay, creditor will foreclose on land]

Question 85

What are 3 key features of the foreclosure process?

Answer 85

1) Mtg’ee looks to land for debt satisfaction; judicial proceeding yields sale of land; proceeds go to (in order)… attorney fees, costs; each interest in priority; surplus back to debtor 2) When sale does NOT cover amount of loan, mtg’ee can bring a deficiency action against debtor for the shortfall 3) Once mortgage is foreclosed, all jr interests to the foreclosing interest are TERMINATED (i.e. once sr creditors foreclose,land cannot be looked to again for satisfaction of junior lienholders) BUT if jr forecloses, senior lienholders can STILL look to the land; land sold by junior lienholder at foreclosure sale taken subject to senior lienholders (buyer not liable, but land still has lien) Necessary parties (creditors w/ interests below foreclosing party; the debtor/mtg’r) MUST be joined in the action OR they preserve their claim despite the foreclosure sale

Question 86

How is mtg priority determined?

Answer 86

Creditors MUST properly record interest to get priority Std: 1st in time, first in right EXCEPTIONS: Purchase money mtg (loan for land acquisition): has superpriority against EXISTING non-PMM loanson property NOTE: PMMs do NOT have superpriority vs. loans made SUBSEQUENTLY(i.e. the regular priority rules apply) Subordination agmts are permissible

Question 87

What is equitable redemption?

Answer 87

PRIOR to foreclosure… 1) Mtg’r/debtor can redeem land and free from mortgage (but pre-payment penalty ok) Once foreclosed, the right to equitable redemption is GONE Redemption reqs: pmt of missed pmts+ interests+ costs Acceleration cls are VALID→full balance due immediately if default NO WAIVER of redemption right is allowed (i.e. “clogging the equity of redemption”) 2) Junior lienholders: can step into the shoes of the primary mortgagee (i.e. buyout the interest) through “subrogation,”If the borrower does not redeem This PRESERVES their interest, which WOULD have been wiped out in a foreclosure action

Question 88

What is statutory redemption? NOTE: NY Distinction

Answer 88

Statutory redemption allows redemption AFTER foreclosure NOTE: mtg’r ALWAYS retains right to possession w/in statutory period Mtg’r pays foreclosure sale price to redeem NY DISTINCTION: NO statutory right of redemption in NY

Question 89

What is an easement?

Answer 89

Nonpossessory interest entitling holder (dominant tenement) to some use of another’s land (servient tenement) 1) Can either be affirmative OR negative Affirmative: go onto servient land and do something Negative: bar servient landowner from doing something; ONLY”L-A-S-S” types, which must be in writing/sighed… Light; Air; Support (underground); Streamwater from artificial flow (irrigation) 2) Can either be apurtenant to land OR held in gross Easement appurtenant to dominant tenement: directly benefits property of dominant tenement (i.e. must be 2 pieces of property) Transfer: passes automatically w/ land trnfrEVEN w/o mention; except if purchaser of servient land is BFP w/o NOTICE Easement in gross: personal pecuniary benefit to holder, NOT land(e.g. put up a billboard; swim in another’s pond). Transfer: NOT transferable UNLESS commercial purpose (e.g. using a lake for fishing to benefit a tuna fish company) 3)Scope of easement: limited to terms of creation; no unilateral expansion

Question 90

How do you create an affirmative easement?

Answer 90

Under “P-I-N-G” circumstances… 1) Prescription: acquired b/c of adverse posession Adverse posession = C-O-A-H = Continuous use for statutory period (NYS: 10 yrs); Open/notorious; Actual use; Hostile (no permission) 2) Implication: requiring (i) use that’s apparent; AND (ii) parties expect survival of easement b/c it’s reasonably necessary to the dominant tenement’s use/enjoyment 3) Necessity:if grantor conveys landlocked tenement easement will be implied (NOTE: the grantor can CHOOSE where to locate the easement) 4) Grant: An easement that endures for more than 1 yr MUST be in writing (to satisfy SOF) that complies w/ the formal elements of a deed (deed of easement) Can and SHOULD be recorded

Question 91

What are the 8 methods toterminate an easement?

Answer 91

You “E-N-D C-R-A-M-P”… 1) Estoppel: servient owner detrimentally reasonably relies on dominant owner’s assurance of easement termination 2) Necessity: easement created by necessity ends when necessity ends, UNLESScreated by express grant 3) Destruction of servient land: w/ no fault of of the servient owner 4) Condemnation of servient land: by eminent domain 5) Release: written release given by the easement to the servient owner 6) Abandonment: the easement holder must demonstrate by affirmative action the intent to never use the easement agains NOTE: Mere NON-USE of the easement is NOT enough to create abandonment; you need an AFFIRMATIVE ACT, showing intent to abandon 7) Merger doctrine (aka unity of ownership): the easement is extinguished when title to easement and title to servient land become vested in the same person (NOTE:remains extinguished even if title is separated) For merger to apply, both pieces of land must be vested in the same person, in the SAME manner (i.e. NOT fee simple absolute & a life estate) 8) Prescription: interference w/ easement according action ~ adverse possession Prescription= C-O-A-H (sans exclusivity requirement of adverse posession) Continuous use for statutory period (NYS: 10 yrs); Open/notorious; Actual USE w/ NO requirement of exclusivity; Hostile (no permission)

Question 92

What is a license?

Answer 92

A mere privilege, freely revocable (unless estoppel applies), to enter land for a delineated purpose (weakest of the servitudes family) May or may not be for consideration Classic cases… 1) Tickets (e.g. movie) 2) Neighbors “taking at the fence”: when oral “easement” violates SOF, becomes license Estoppel applies ONLY when licensee has invested substantial $/labor in reasonable reliance

Question 93

What is a profit?

Answer 93

Name for an easement that entitles holder to enter servient land AND take from (i.e. from soil or substance of soil) Minerals, timber, oil

Question 94

What is a covenant?

Answer 94

A K limitation/promisere: land, but does NOT grant property interest (like an easement) One tract of land is “burdened by the promise and another is benefited” Two types… 1) Restrictive (Negative) covenant: promise to refrain from doing something related to land (e.g. not build commercial bldg) 2) Affirmative covenant: promise to do something related to land (e.g. maintain a fence)

Question 95

What is the difference b/t a covenant and an equitable sevitude?

Answer 95

IF… 1) π seeks monetary damages =covenant 2) π seeks injuction/equitable relief =equitable servitude

Question 96

When will a covenant “run with the land” (i.e. benefitting successors)?

Answer 96

First analyze BURDEN side then BENEFIT side… Burden (hard): To run, you’ d need “W-I-T-H-N”… 1) Writing: the original promise has to be in writing 2) Intent: original parties intended covenant to run 3) Touch & concern land: the promise must affect the parties’ legal relations as landowners (and NOT simply as members of public at large) e.g., homeowners assn. fees; covenant not-to-compete DO touch/concern 4) Horizontal AND vertical privity Horizontal privity refers to the nexus b/t orginal parties A & B requiring that they’d be in sucession of estate (i.e. grantor-grantee; landlord-tenant; mortgager-mortgagee) «HARD to establish Vertical privity refers to nexus b/t A & A-1, which requires some non-hostile nexus (i.e. K, devise, decent, but NOT adverse possession) Notice: burdened present party must have notice of promise when he took land (record/constructive) Benefit (easy): To run, you’d need “W-I-T-V”… 1) Writing: see above 2) Intent: see above 3) Touch and concern land: see above 4) Vertical privity(ONLY): see above ————-

Question 97

What is an equitable servitude?

Answer 97

A promise concerning land that EQUITY will enforce against successors (accomplished by injunctive relief)

Question 98

How do you create an express equitable servitude?

Answer 98

To create an equitable servitude that will BIND successors, there must be “W-I-T-N-E-S”… 1) Writing: orginal promise was in writing 2) Intent: original parties intended for promise to run and bind successors 3) Touch and concern the land: the promise mut affect parties as landowners 4) Notice: the assignee of burdened land had notice of promise = 5) Equitable 6) Servitude PRIVITY is not necessary!

Question 99

What is the general or common scheme doctrine? NOTE: NY Distinction

Answer 99

Creates an IMPLIED equitable servitude in a subdivision where the ct will IMPLY a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant To enforce an implied covenant on unencumbered land, MUST SHOW… 1) Subdivider had general development scheme embodied in deed restriction 2) Purchaser of lot had notice of restriction (A-I-R) Actual notice: ∆ had literal knowledge of the promises in the prior deeds Inquiry notice: by sight development obviously conforms to restriction Record notice: imputed to buyer who doesn’t check publicly recorded documents (NOT NY) Defense allowing RELEASE from enforcement of equitable servitude: Changed condition:pervasive changed conditions to ENTIRE area/subdivision (NOTE: mere pockets of ltd change is NOT sufficient)

Question 100

What is adverse possession?

Answer 100

Possession, for a statutorily prescribed pd of time, can, if certain elements are met, ripen into TITLE

Question 101

What are the elements of adverse possession? NOTE: NY Distinctions

Answer 101

C-O-A-H… 1) Continuous: uninterrupted for thestatutory period NY DISTINCTION: Statutory pd = 10yrs NOTE: A tenant in common in exclusive possession req’s 20 yrs to adversely possess 2) Open and notorious:type of possession the owner wouldmake 3) Actual and exclusive POSSESSION: it’s got to be a LITERAL entry that’s EXCLUSIVE 4) Hostile: the possessor doesn’t have owner’s PERMISSION to be there (possessor’s subjective state of mind–knowing one is on another’s land–is IRRELEVANT) NY DISTINCTION: the possessor must have a good faith belief (albiet a mistake one) that the land occupied is INDEED his

Question 102

What is tacking?

Answer 102

One adverse possessor may “tack” on his time with the land his predecessor’s time, SO LONG AS there is privity, which is satisfied by ANY non-hostile nexus (i.e. blood, K, deed, will) Tacking is NOT allowed when there is ouster

Question 103

How can an owner’s disability affect adverse possession?

Answer 103

The SOL on an adverse possession claim will NOT run against a true owner who is afflicted by a disability (i.e. infancy, insanity, imprisonment) AT THE START of the adverse possession