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Virginia Bar Exam > Real Property > Flashcards

Real Property Flashcards

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1
Q

For a fee simple absolute, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A and his heirs.”
  • “To A.”

Duration

  • Absolute ownership of potentially infinite duration

Transferability

  • Devisable
  • Descendible
  • Alienable

Future interest

  • None
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2
Q

For a fee tail, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A and the heirs of his body.”

Duration

  • Lasts only as long as there are lineal blood descendants of grantee

Transferability

  • Passes automatically to grantee’s lineal descendants

Future interest

  • Reversion (if held by grantor)
  • Remainder (if held by third party)
  • Possibility of reverter (held by grantor)
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3
Q

What are the different types of defeasible fees?

A
  1. Fee simple determinable
  2. Fee simple subject to a condition subsequent
  3. Fee simple subject to an executor limitation
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4
Q

For a fee simple determinable, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A so long as …”
  • “To A until …”
  • To A while …”

Duration

  • Potentially infinite, so long as event does not occur

Transferability

  • Devisable, subject to condition
  • Descendible, subject to condition
  • Alienable, subject to condition

Future interest

  • Possibility of reverter (held by grantor)
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5
Q

For a fee simple subject to condition subsequent, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A, but if X event happens, grantor reserves the right to reenter and retake.”

Duration

  • Potentially infinite, so long as the condition is not breached and, thereafter, the holder of the right of entry timely exercises the power of termination

Transferability

  • Devisable, subject to condition
  • Descendable, subject to condition
  • Alienable, subject to condition

Future interest

  • Right of entry/power of termination (held by grantor)
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6
Q

For a fee simple subject to an executor limitation, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A, but if X event occurs, then to B.”

Duration

  • Potentially infinite, so long as stated contingency does not occur.

Transferability

  • Devisable, subject to condition
  • Descendible, subject to condition
  • Alienable, subject to condition

Future interest

  • Executory interest (held by third party)
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7
Q

For a life estate, what is the:

  • Language to create
  • Duration
  • Transferability
  • Future interest
A

Language to create

  • “To A for life.”
  • “To A for the life of B.”

Duration

  • Measured by life of transferee or
  • Measured by some other life (i.e., pur autre vie)

Transferability

  • Devisable, if pur autre vie and measuring life still alive
  • Descendible, if pur autre vie and measuring life still alive
  • Alienable, if pur autre vie and measuring life still alive

Future interest

  • Reversion (if held by grantor)
  • Remainder (if held by third party)
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8
Q

What do the fee simple determinable and the fee simple subject to condition subsequent share?

What is their distinction?

A

They both must have:

  • Clear durational language

But just the fee simple subject to condition subsequent needs:

  • Explicit right to reenter
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9
Q

In the following example, what does A have? Why?

“To A for the purpose of constructing a daycare center.”

A

Fee simple absolute

The restriction is not based on clear durational language

Courts disfavor restrictions on free land use

So a court would not find this to be a defeasible fee

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10
Q

In the following examples, what do A and O have? Why?

  1. “To A so long as she does not attempt to sell.”
  2. “To A so long as she does not attempt to sell until 2016, when coulds on the title will be resolved.”
A
  1. A has a fee simple absolute; O has nothing.
    • Absolute restraints on alienation are void.
  2. A has a fee simple determinable; O has a possibility of reverter.
    • Resonable, time-limited restraints on alienable are valid.
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11
Q

In the following example, what does A have? Why?

“To a for life, but in no event more than 10 years.”

A

A has a term of years

To have a life estate, it must be measured in explicit lifetime terms, and never in terms of years

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12
Q

What are the two important rules regarding life estates?

A
  1. The life tenant is entitled to ordinary uses and profits from the land
  2. The life tenant cannot commit waste
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13
Q

What are the different types of waste?

A
  1. Affirmative waste
    • Willful destruction that causes a drop in value
  2. Permissive waste (i.e., neglect)
    • Neglect that allowed the land to fall into disrepair
  3. Ameliorative waste
    • Actions that enhance the property’s value
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14
Q

What is the rule regarding waste and natural resources?

A

A life tenant cannot commit affirmative waste, which includes consuming or exploiting natural resources (e.g., timber, oil, minerals, etc.), unless:

“PURGE”

  • Prior Use
    • Life tenant may consume or exploit if:
      • Prior to thegrant, the land was exploited
      • Parties have not agreed otherwise
      • Open mines doctrine is followed
  • Repairs
    • Life tenant may consume or exploit if:
      • For purporses of repairs or maintenance
  • Grant
    • Life tenant may consume or exploit if:
      • Granted the right to do so
  • Exploitation
    • Life tenant may consume or exploit if:
      • The land is only suitable for exploitation (e.g., quarry)
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15
Q

What is the rule regarding a life tenant’s obligation to repair?

What about paying taxes?

A
  • The life tenant is only obligated to maintain the premises in reasonably good repair
  • The life tenant is obligated to pay all ordinary taxes on the land, to the extent of either:
    • Income and profits from the land
    • The land’s fair rental value (if no income or profits)
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16
Q

Why is a life tenant prohibited from committing ameliorative waste?

Can a life tenant ever commit ameliorative waste?

A

Property honors sentimental value

Ameliorative waste is only allowed if:

  • All future interest holders are known and consent
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17
Q

What are the future interests capable of creation in the grantor?

Explain the accompanying present estates

A
  1. Possibility of reverter
    • Accompanies fee simple determinable
  2. Right of entry/power of termination
    • Accompanies fee simple subject to condition subsequent
  3. Reversion
    • Accompanies any estate transfer of some lesser amount than what the grantor started with, other than those listed above
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18
Q

What are the future interests capable of creation in transferees?

What are their sub-types?

A
  1. Vested remainder
    • Indefeasibly vested remainder
    • Vested remainder subject to complete defeasance
    • Vested remainder subject to open
  2. Contingent remainder
  3. Executory interest
    • Shifting executory interest
    • Springing executory interest
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19
Q

What present estates does the remainder accompany?

What present estated does the remainder never accompany?

How do you remember this?

A

Remainders accompany:

  • Life estate
  • Term of years

Remainders never accompany:

  • Defeasible fees

Remember:

  • Jack Johnson is a patient and polite remainderman
  • He waits for the present estate to naturally end
  • He never gets in the way of the present estate
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20
Q

When is a remainder vested?

When is a remainder contingent?

A

It is vested if both:

  • Created in an ascertained person
  • Not subject to any condition precedent

It is contingent if either:

  • Created in an unascertained person
  • Subject to a condition precedent
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21
Q

What is the old common law rule of destructibility relating to contingent remainders?

What is the modern common law rule?

A

Old rule

  • At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended

​Modern rule

  • At common law, a contingent remainder is not destroyed if it is still contingent at the time the preceding estate ends
  • If that happens, the estate reverts back to the grantor (or his heirs), who holds it subject to the contingent remainderman’s springing executory interest
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22
Q

What is the R__ule in Shelley’s Case?

What type of rule is it (i.e., of law or construction)?

What is the modern approach?

A

The Rule in Shelley’s Case

  • If O conveys “To A for life, then to A’s heirs”
    • The present and future interests merge
    • A has a fee simple absolute
    • A’s heirs have nothing
    • O has nothing

It is a rule of law (i.e., still applies even if contrary intent)

Modern approach (including Virginia)

  • If O conveys “To A for life, then to A’s heirs”
    • The present and future interest do not merge
    • A has a life estate
    • A’s heirs have a contingent remainder
    • O has a reversion
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23
Q

What is the Doctrine Against Worthier Title?

What type of rule is it (i.e., of law or construction)?

What is the modern approach?

A

The Doctrine Against Worthier Title

  • If O is alive
  • And conveys “To A for life, then to O’s heirs”
    • A has a life estate
    • O’s heirs have nothing
    • O has a reversion

It is a rule of construction (i.e., doesn’t apply if contrary intent)

  • So if in addition to using the above language, O clearly intended to create a contingent remainder in his heirs, then that intent is binding

Modern approach

  • It still applies in most states, but
  • IT DOES NOT APPLY IN VIRGINIA
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24
Q

When is a remainder indefeasibly vested?

What happens if the holder of the remainder predeceases the holder of the present estate?

A

When the holder is certain to acquire the estate with no strings attached

The indefeasibly vested remainder passes by will (devises) or intestacy (descends)

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25
Q

When is a vested remainder subject to complete defeasance?

A

When the remainderman’s right to possession could be cut short by a condition subsequent

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26
Q

When is a vested remainder subject to open?

A

When the remainder is vested in a group and:

  • At least one member of the group is qualified to take,
  • But each member’s share is subject to dimunition because additional members can still join
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27
Q

For purposes of a vested remainder subject to open, how do you determine if a class is open or closed?

What is this rule called?

A

The rule of convenience

  • A class is closed when any member can demand possession
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28
Q

What is a shifting executory interest?

What is a springing executory interest?

What do they follow?

A

Shifting executory interest

  • Cuts short someone other than the grantor
  • Follows a fee simple subject to executory limitation

Springing executory interest

  • Cuts short the grantor
  • Follows a fee simple subject to executory limitation
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29
Q

What is the rule against perpetuities:

  • At common law
  • In Virginia
A

Common law

  • Certain kinds of interests are void if there is any possibility, however, remove, that the given interest may vest more than 21 years after the death of a measuring life

Virginia

  • Virginia has adopted the Uniform Statutory Rule Against Perpetuities
    • The Uniform Rule adds:
      • If the interest passes the 21-year common law rule, the interest is still void if it will actually vest or terminate within 90 years after its creation
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30
Q

What is the four-step technique to evaluating RAP problems?

(Additional step for Virginia)

A
  1. Identify the future interests
  2. Identify the conditions precedent
  3. Identify a measuring life
  4. Determine whether the interest holders can or cannot take within 21 years of the measuring life’s death
  5. Determine whether the interest holders will or will not take within 90 years after the interest’s creation
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31
Q

What future interests does the RAP apply to?

What future interest does the RAP not apply to?

A

RAP only applies to:

  • Contingent remainders
  • Executory interests
  • Certain vested remainders subject to open

RAP does not apply to:

  • The grantor’s future interests
  • Indefeasibly vested remainders
  • Vested remainders subject to complete defeasance
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32
Q

How do you identify a measuring life for purposes of RAP?

A

The measuring life must be grant-specific

(i.e., the grant is specifically dependent on that life)

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33
Q

What are the two bright-line rules for RAP?

A
  1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates RAP
    • So the entire class is void, and it becomes:
      • Reversion to grantor
  2. An executory interest with no limit on the time within which it must vest violates RAP
    • So it either becomes:
      • Possibility of reverter (“so long as” language)
      • Nothing (“but if” language)
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34
Q

Can a gift from one charity to another violate the RAP?

A

No

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35
Q

Reform of the RAP:

What is the “wait and see” or “second look” doctrine?

A

The validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life

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36
Q

Reform of the RAP:

What is the USRAP?

What does it add?

A

Uniform Statutory Rule Against Perpetuities

Adds a brigher-line 90-year vesting period (i.e., even if the common law RAP 21-year period is satisfied, the grant is void if it will not vest within 90 years of the grant)

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37
Q

What do both the “wait and see” doctrine and USRAP embrace?

A

Cy pres doctrine

  • Means: “as near as possible”
  • If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor’s intent while complying with the RAP

Reduction of offensive age contingency

  • If a property interest would violate the rule because it is contingent upon any person attaining or failing to attain an age in excess of 21 years, the age contingency shall be reduced to 21 years as to all persons subject to the same age contingency
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38
Q

What are the different forms of concurrent ownership (i.e., concurrent estates)?

A
  1. Joint tenancy
    • Two or more persons
    • Right of survivorship
  2. Tenancy by the entirety
    • Married partners
    • Right of survivorship
  3. Tenancy in common
    • Two or more persons
    • No right of survivorship
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39
Q

What does right of survivorship mean?

What are its implications?

A

When one person dies, his interest automatically goes to the other person

Because of this:

  • It is not:
    • Devisable (in a will)
    • Descendable (intestate)
  • It avoids probate
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40
Q

How do you create a joint tenancy?

A
  1. Include the four unities (T-TIP)
    • Joint tenants must take their interests:
      1. ​​​Time (at the same time)
      2. Title (by the same title)
      3. Identical interests (with identical interests)
      4. Possession (with right to possess the whole)
  2. Clearly express the right of survivorship
    • Joint tenancies are disfavored, so if you don’t do this you won’t have one
    • They are disfavored because joint tenants avoid probate
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41
Q

When would you use a straw?

How would you do it?

A

Use a straw if you hold property in fee simple absolute and you want to hold if in joint tenancy

If A wants to hold property he owns in fee simple absolute in joint tenancy with B, he must:

  1. Convey the property to a straw
  2. Have the straw convey the property to A and B as joint tenants with the right of survivorship

Note: this ensures that the four unities (T-TIP) are met

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42
Q

How do you sever a joint tenancy?

A

(SPAM)

  • Sale
  • Partition
  • And
  • Mortgage
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43
Q

When one member of a joint tenancy sells her interest, what happens?

Can she do so secretly?

A

This disrupts the four unities,

  • So the buyer
    • Becomes a tenant in common
  • But to there were more than two joint tenants, for others
    • The joint tenancy remains intact

A joint tenant may sell secretly even without the others’ knowledge or consent

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44
Q

At what point does a joint tenant’s sale of her interest sever the joint tenancy as to her?

Why?

A

When she merely enters into a contract for the sale of the interest (i.e., before the actual sale)

This is because of the doctrine of equitable conversion, which holds that equity regards as done that which ought to be done

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45
Q

What are the different ways in which a joint tenancy interest may be partitioned?

A
  1. Voluntary agreement
    • Peaceful way to end the relationship
  2. Partition in kind
    • Court action for physical division if in the best interests of all (e.g., farm or vineyard)
  3. Forced sale
    • Court action for sale and proportionate division of proceeds if in the best interests of all (e.g., joint tenants cannot get along on the same property)
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46
Q

What happens if a joint tenant executes a mortgage or lien on his share of the joint tenancy?

A

In a minority jurisdiction following the title theory of mortgages:

  • The joint tenancy will be served as to that share

In a majority jurisdiction following the lien theory of mortgages:

  • The joint tenancy will not be served as to that share

VIRGINIA FOLLOWS THE LIEN THEORY

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47
Q

How do you create a tenancy by the entirety?

A

In states that recognize the tenancy by the entirety, it arises presumptively

A tenancy by the entirety is created in any grant to married partners, unless stated otherwise

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48
Q

In a tenancy by the entirety:

  • What creditors can access it?
  • When can the tenants convey?
A
  • Creditors
    • Only creditors of both parties can access the tenancy (i.e., creditors of just one party cannot touch the tenancy)
  • Unilateral conveyance
    • Tenants can only convey bilaterally (i.e., neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party)
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49
Q

What are the three distinguishing features of a tenancy in common?

A
  1. Presumption
    • The presumption favors the tenancy in common
      • Because it does not avoid probate
  2. Ownership and possession
    • Each co-tenant both:
      • Owns an individual part and
      • Has a right to possess the whole
  3. _​_Transferability
    • Each interest is:
      • Devisable
      • Descendable
      • Alienable
    • So, there are not survivorship rights
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50
Q

What are the rights and duties of co-tenants regarding possession?

A

Wrongful ouster

  • A co-tenant who excludes another co-tenant (who, after all, has rights to possess the whole) has committed wrongful ouster
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51
Q

What are the rights and duties of co-tenants regarding rent from:

  • Co-tenants in exclusive possession
  • Third parties
A

Rent from co-tenants in exclusive possession

  • If a co-tenant commits wrongful ouster, he must pay rent to the ousted co-tenant covering the period of exclusive possession
  • But, absent ouster, a co-tenant in exclusive possession does not owe any rent to other co-tenants

Rent from third parties

  • A co-tenant who leases all or part of the premises to a third parties must account (via an equitable accounting action) to his co-tenants for their fair share of the rental income
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52
Q

What are the rights and duties of co-tenants regarding adverse possession?

A

No ouster

  • Unless a co-tenant ousted other co-tenants, his exclusive possession for the statutory adverse possession period will not give him title to the exclusion of the others
  • This is because the hostility requirement is missing

Ouster

  • If a co-tenant ousted other co-tenants, his exclusive possession for the statutory adverse possession period will give him title to the exclusion of the others
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53
Q

What are the rights and duties of co-tenants regarding carrying costs?

A

Each co-tenant is responsible for his pro rata share of carrying costs

E.g., taxes and mortgage interest

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54
Q

What are the rights and duties of co-tenants regarding repairs?

A

A co-tenant who makes reasonably necessary repairs enjoys a right of contribution, provided he told the others of the need

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55
Q

What are the rights and duties of co-tenants regarding improvements?

A

During the life of the co-tenancy, there is no right to contribution for improvements (i.e., these are inherently subjective)

However, at partition, the improving co-tenant is:

  • Entitled to a credit equal to any increase in value from the improvement
  • Liable for any drop in value caused by the improvement
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56
Q

What are the rights and duties of co-tenants regarding waste?

A

A co-tenant must not commit waste

A waste action resides during the life of the co-tenancy (i.e., no need to wait until partition)

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57
Q

What are the different leasehold (i.e., non-freehold) estates?

A
  1. Tenancy for years
    • A lease for a fixed period (i.e., could be 1 day or 10 years)
  2. Periodic tenancy
    • A lease for successive intervals
  3. Tenancy at will
    • A lease for no fixed duration
  4. Tenancy at sufferance
    • A lease created when T wrongfully holds over
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58
Q

What are the distinguishing characteristics of a tenancy for years?

A
  • Creation
    • If > 1 year, must be in writing
  • Termination
    • Because it is for a fixed period, no notice required
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59
Q

What are the distinguishing characteristics of a periodic tenancy?

A
  • Creation
    • May be express (e.g., T o T from month-to-month)
    • May be implied by:
      1. No mention of duration, but rent paid at set intervals
        • ​​E.g., rent paid monthly, so month-to-month periodic tenancy
      2. Oral term of years, but violates statute of frauds
        • E.g., 5 year lease at $100/month, but not in writing, so month-to-month periodic tenancy
      3. Holdover
        • E.g., T holds over after expiration of 1-year lease, but sends an additional month’s rent to L, who cashes it, so month-to-month periodic tenancy
  • Termination
    • Notice
      • Usually, written notice is required, at least equal to the period itself (subject to freedom of contract)
        • E.g., notice to terminate month-to-month periodic tenancy must be 1 month prior
        • Exception: year-to-year or greater
          • Notice need not be > 6 months prior (subject to freedom of contract)
    • Timing
      • Periodic tenancy must end at the conclusion of a natural lease period
        • E.g., notice to terminate month-to-month lease on 5/15 terminates effective 6/30
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60
Q

What are the distinguishing characteristics of the tenancy at will?

A
  • Rare
    • Courts will strain to avoid this tenancy
  • Creation
    • Must expressly agree to have this tenancy, otherwise courts will imply a periodic tenancy
  • Termination
    • By definition, may be terminated by either party at any time
    • But reasonable demand to vacate is usually needed
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61
Q

What are the distinguishing characteristics of a tenancy at sufferance?

A
  • Duration
    • Lasts only until L either:
      • Evicts T
      • Elects to hold T to a new tenancy
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62
Q

What are a tenant’s duties?

A
  1. T’s liability to third parties
  2. T’s duty to repair
  3. T’s duty to pay rent
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63
Q

What is a tenant’s liability to third parties?

A
  • T is responsible for keeping the premises in good repair
  • Even if L promises to keep the premises in good repair, T will be liable for injuries to third parties that he invited
    • _​_This is true even if T may be able to seek indemnification from L
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64
Q

What is a tenant’s duty to repair?

A

If the lease is silent:

  • Repairs
    • T must maintain the premises by making routine repairs other than those due to ordinary wear and tear (e.g., unclog sink, but not replace worn shower tiles)
  • Waste
    • T must not commit waste:
      1. Voluntary (i.e., overt destruction)
      2. Permissive (i.e., neglect)
      3. Ameliorative (i.e., changes that enhance value)

If the lease expressly requires T to maintain the property in good condition:

  • At common law, historically:
    • T was liable for any loss to the property,
    • Including loss due to a force of nature
  • Today, the majority view:
    • T is not liable for loss due to a force of nature
    • T may end the lease if premises are so destroyed
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65
Q

What has a tenant done if she removes a fixture?

A

Committed voluntary waste

T must not remove a fixture, even if she installed it

FIXTURES PASS WITH OWNERSHIP OF THE LAND

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66
Q

What is a fixture?

What are some examples?

A

A once movable chattel that, by virtue of its annexation to realty, objectively shows the intent to permanently improve the property

E.g., heating systems, custom storm windows, furnace, lighting

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67
Q

How do you determine if a tenant installation qualifies as a fixture?

A
  • Express agreement controls
  • Absent agreement, an item is a fixture if:
    • Removal will cause substantial harm to the premises
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68
Q

What if a tenant breaches his duty to pay rent?

A

If T breaches this duty and is:

  • In possession
    • L may either:
      • Evict through the courts
        • And recover rent during the time T is a tenant at sufferance
      • Continue the relationship
    • L may not:
      • Engage in self-help (e.g., changing locks, forcibly removing T, removing T’s items)
      • Self-help is punishable civilly and criminally
  • Out of possession
    • L may: (“S I R”)
      • Surrender (i.e., treat T’s abandonment as an offer of surrender and accept it)
      • Ignore (i.e., hold T responsible for unpaid rent, just as if T were still there - minority)
      • Re-let (i.e., replace T and hold T responsible for any deficiency in rent)
        • L must at least try to re-let (majority rule)
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69
Q

What are a landlord’s duties?

A
  1. Duty to deliver possession
  2. Implied covenant of quiet enjoyment
  3. Implied warranty of habitability
  4. Duty to avoid retaliatory eviction
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70
Q

What is the majority rule regarding a landlord’s duty to deliver possession?

What is the minority rule?

A

Majority rule (English rule)

  • L must give T actual possession
    • So if at the start of T’s lease, a prior holdover is still in possession, L has breached

Minority rule (American rule)

  • L must give T legal possession
    • So if at the start of T’s lease, a prior holdover is still in possession, it is T’s problem
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71
Q

What is the implied covenant of quiet enjoyment?

What types of leases does it apply to?

When is it breached?

A

Definition

  • T has a right to quiet use and enjoyment without interference from L

Application

  • Applies to both residential and commercial leases

Breach

  • L breaches when:
    • Actual wrongful eviction
    • Constructive eviction
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72
Q

What is constructive eviction?

A

(“SING”)

  • Substantial Interference
    • Due to L’s actions or inactions (e.g., not addressing a flooding problem)
  • Notice
    • T must notify L of the problem
    • L must fail to address the problem in response
  • Goodbye
    • T must vacate within a reasonable time after L’s failure
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73
Q

For purposes of the implied covenant of quiet enjoyment, is a landlord liable for the acts of other tenants?

A

Generally, no. Except:

  • L must not permit a nuisance on-site
  • L must control common areas
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74
Q

What is the implied warranty of habitability?

What supplies the standard?

What are examples?

A

The premises must be fit for basic human dwelling

The standard may be supplied by:

  • Housing code
  • Case law

Examples:

  • Not heat in winter
  • No plumbing
  • No running water
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75
Q

What is a tenante entitled to when his landlord breaches the implied warranty of habitability?

A

(“MR3”)

  • Move out and end the lease
  • Repair and deduct cost from rent
  • Reduce rent or withold rent until a court determines FV
    • Witheld rent typically must be placed in escrow
  • Remain in possession, pay rent, and seek money damages
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76
Q

What is a landlord’s duty to avoid retaliatory eviction?

A

If T lawfully reports L for housing code violations, L cannot penalize T by (for example):

  • Raising rent
  • Ending the lease
  • Harrassing T
  • Taking any other reprisals
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77
Q

What is the difference between the assignment and the sublease?

A

Assignment

  • T transfers his interest in whole

Sublease

  • T transfers his interest in part
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78
Q

When can T transfer his interest in a lease?

A

Either

  • In the absence of a prohibition in the lease
  • If T obtains prior written approval based on a prohibition
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79
Q

Once L consents to one transfer by T (via assignment or sublease), can T make future transfers?

A

Yes, unless L reserved the right to object in the future

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80
Q

If T1 assigns his interest in a lease to T2, what are the relationships between these parties and L?

A

L and T2

  • Privity of estate
  • NOT privity of contract, unless:
    • T2 assumes all promises in T1’s lease

L and T1

  • Privity of contract
    • So, T1 and L are secondarily liable to eachother
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81
Q

What does privity of estate mean?

A

Parties in privity of estate are liable to eachother for all the covenants in the original lease that “run with the land”

E.g., promises to pay rent, paint the premises, repair the premises

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82
Q

What does privity of contract mean?

A

Parties in privity of contract may be liable (possibly secondarily) for breaches of the contract (rather than mere breaches that run with the land)

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83
Q

L leases blackacre to T1.

T1 assigns to T2.

T2 assigns to T3.

T3 engages in flagrant abuse to premises.

Who can L proceed against?

A

T3, because L is in privity of estate with him.

T1 because L is in privity of contract with him.

NOT T2 because L is neither in privity of estate nor privity of contract with him (unless T2 assumed all promises in T1’s lease)

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84
Q

If T1 subleases to T2, what is the relationship between L and T2? What about between L and T1?

A

L and T2

  • No relationship - i.e., neither privity of estate or contract

L and T1

  • Full relationship - i.e., both privity of estate and contract
85
Q

Does a landlord have a duty to make the premises safe?

A

No. Under the common law of caveat lessee, the landlord is under no duty to make the premises safe, unless:

Exceptions (when T learns of these, she “CLAPS”)

  • Common areas
    • L must maintain all common areas
      • E.g., hallways, stairwells, etc.
  • Latent defects
    • L must warn T of hidden defects that L knows or should know about
      • E.g., flammable toaster
  • Assumption of repairs
    • If L voluntarily makes repairs, L must complete them with reasonable care
  • Public use
    • L is liable for any defects on site if L leases a public space (e.g., convention center or museum) and should know that because of the nature of the defect, T will not repair it
      • _​_E.g., dinosaur skeleton
  • Short term lease of furnished dwelling
    • L is liable for any defects on site if L leases a furnished dwelling for a short period
      • Rationale is that T will neither have the time nor the expectation to make repairs
      • E.g., log cabin
86
Q

What are the different forms of servitude?

A
  1. Affirmative Easements
  2. Negative Easements
  3. Real Covenants
  4. Equitable Servitudes
  5. Reciprocal Negative Servitudes
87
Q

For an affirmative easement, what is/are the:

  • Method of creation
  • Parties bound
  • Remedy
A

Method of creation

  • P-I-N-G
    • Prescription
    • Implication
    • Necessity
    • Grant

Parties bound

  • Easement appurtenant
    • Transferred automatically with dominant tenement
  • Easement in gross
    • Assignable if for commercial purposes

Remedy

  • Injunction
  • Damages
88
Q

For a negative easement, what is/are the:

  • Method of creation
  • Parties bound
  • Remedy
A

Method of creation

  • Only by writing signed by grantor

Parties bound

  • Easement appurtenant
    • Transferred automatically with dominant tenement
  • Easement in gross
    • Assignable if for commercial purposes

Remedy

  • Injunction
  • Damages
89
Q

For a real covenant, what is/are the:

  • Method of creation
  • Parties bound
  • Remedy
A

Method of creation

  • Writing signed by grantor

Parties bound

  • Burden of promise
    • Runs to successor of burdened lot if (WITHN):
      • Writing
      • Intent
      • Touch and concern
      • Horizontal privity
      • Notice
  • Benefit of promise
    • Runs to successor of benefited lot if (WITV):
      • Writing
      • Intent
      • Touch and concern
      • Vertical privity

Remedy

  • Damages
90
Q

For an equitable servitude, what is/are the:

Method of creation
Parties bound
Remedy

A

Method of creation

  • Writing signed by grantor
    • Unless implied by general scheme doctrine

Parties bound

  • Successors bound if (WITNes)
    • Writing
    • Intent
    • Touch and concern
    • Notice

Remedy

  • Injunction
91
Q

For a reciprocal negative servitude, what is/are the:

  • Method of creation
  • Parties bound
  • Remedy
A

Method of creation

  • In a subdivision
    • Residential restrictions contained in prior deeds conveyed by common grantor
    • Bind subsequent grantees whose deeds contain no such restriction if both:
      • At start of subdividing, grantor had ommon scheme
      • Unrestricted lot holders had notice

Parties bound

  • Same as above

Remedy

  • Injunction
92
Q

What is an easement?

What are common examples?

A

The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, which is called the servient tenement

Examples:

  • Privilege to lay utility lines
  • Right to access across a tract of land
93
Q

What is the difference between:

Affirmative easement

Negative easement

A

Affirmative easement

  • The right to do something on the servient tenement

Negative easement

  • The right to prevent the servient landowner from doing something that would otherwise be permissible
94
Q

In what categories are negative easements usually recognized?

A

(LASS)

  • Light (e.g., John Hancock building in Boston - servient tenement to Trinity Church)
  • Air
  • Support
  • Steamwater from an artificial flow
95
Q

What is the difference between:

  • Easement appurtenant
  • Easement in gross
A

Easement appurtenant

  • Holder is benefited in his physical use or enjoyment of his property (i.e., two properties involved)

Easement in gross

  • Holder is benefited personally or pecuniarily, but not with regard to his property (i.e., only one property involved)
96
Q

When can an easment appurtenant pass with a conveyance?

A

Conveyance of dominant tenement

  • Always - i.e., automatic

Conveyance of servient tenement

  • Always, unless new owner is:
    • Bona fide purchaser
    • Without notice
97
Q

When is an affirmative easment created by grant?

A

When the easement will last for more than 1 year, it must be in a writing (pursuant to the statute of frauds) that complies with the formal elements of a deed - i.e., a deed of easement

98
Q

When is an affirmative easement created by implication?

A

This is also called an easement implied from existing use

Requirements:

  • Previous use was apparent
  • Parties expected it would continue
  • It was reasonably necessary to the dominant land’s use
99
Q

When is an affirmative easement created by necessity?

A

When the grantor conveys a portion of his land with no way out except over part of the grantor’s remaining land

E.g., landlocked portion of Rooney’s property

100
Q

When is an easement created by prescription?

A

By satisfying the elements of adverse possession:

  • Continuous use for statutory period
  • Open and notorious use
  • Actual use (but needs not be exclusive)
  • Hostile use (i.e., without servient owner’s consent)

Note: we analogize adverse possession to determine whether the dominant tenement has a right of use, not title

101
Q

How is the scope of an easement determined?

A

By the terms that created it

E.g., if a party with an easement buys another property, that other property cannot use it unless agreed to by the terms of the original easement

102
Q

How is an easement terminated?

A

(“END CRAMP”)

  • Estoppel
    • Servient owner changes his position in reasonable reliance on easement owner’s assurances that the easement will not be enforced
  • Necessity
    • Easements created by necessity end as soon as the necessity ends (unless also created by grant)
  • Destruction
    • Destruction of the land other than by the willful conduct of the servient owner
  • Condemnation
    • Condemnation of the servient estate by eminent domain ends the easement
  • Release
    • Easement holder gives servient owner a written release
  • Abandonment
    • Easement holder shows by physical action the intent to never use the easement again
      • _​_E.g., by creating a permanent structure that would block use of the easement
  • Merger
    • Title to the easement and title to the servient land become vested in the same person
  • Prescription
    • Just as an easement can be created this way (i.e., COAH), it can also be extinguished by the servient owners actions under COAH
103
Q

What is a license?

A

A mere privilege to enter another’s land for some delineated purpose

104
Q

Do you need a writing to create a license?

A

No. They are not subject to the statute of frauds.

105
Q

When can a license be revoked?

A

Anytime

Unless estoppel applies

  • Licensee must have invested:
    • Substantial money, and/or
    • Substantial labor
  • In reasonable reliance of the license’s continuation
106
Q

What are the classic license cases?

A

Tickets

  • Remember that these are freely revocable

Neighbors talking by the fence

  • If A tells B over the fence that B has the right to cross his property, that is an oral easement, which is actually just a freely revocable license
107
Q

What is the profit?

A

Entitles holder to enter servient land and take from it either:

  • Soil
  • Some substance of the soil

Examples

  • Minerals
  • Timber
  • Oil
108
Q

What rules apply to the profit?

A

All the easement rules (e.g., creation, termination, etc.)

109
Q

What is a covenant?

What distinguishes it from an easement?

A

Definition

  • A promise to do or not do something related to land

Distinction

  • It is not the grant of a property interest, it is just a contract relating to land
110
Q

What are the different types of covenants?

A

Negative (most common) - i.e., restrictive covenants

  • Promise to refrain from doing something related to land
    • E.g., promise not to build for commercial purposes
  • Created because negative easements are so narrow

Affirmative

  • Promise to do something related to land
    • E.g., promise to paint common fence
111
Q

How do you know whether to treat something as:

Covenant

Equitable servitude

A

On the basis of the remedy P seeks

  • Money damages
    • Covenant
  • Injunction
    • Equitable servitude
112
Q

When does a covenant bind successors?

A

When it runs with the land

Burden runs when “WITHN”

  • Writing
  • Intent for covenant to run
  • Touch and concern
  • Horizontal and vertical privity
  • Notice

Benefit runs when “WITV”

  • Writing
  • Intent for covenant to run
  • Touch and concern
  • Vertical privity
113
Q

What does it mean for a covenant to touch and concern the land?

A

It must affect the parties’ legal relations as landowners, not simply as members of the community at large

  • The following does not touch and concern the land:
    • Obligation to pay HOA fees
    • Covenant not to compete
114
Q

When do two parties have horizontal privity?

A

They must be in succession of estate, meaning that they were in one of the following relationships:

  • Grantor-grantee
  • Landlord-tenant
  • Mortgator-mortgagee

VERY HARD TO ESTABLISH

115
Q

When do two parties have vertical privity?

When will it be absent?

A

Present

  • When there is some non-hostile nexus such as:
    • Contract
    • Devise
    • Descent

Absent

  • A party acquired his interest through adverse possession
116
Q

What is an equitable servitude?

A

A promise, which equity will enforce against successors, that is accomanied by injunctive relief

117
Q

What are the forms of notice that may potentially be imputed to a defendant in a reciprocal negative easement?

A
  • Actual notice
  • Inquiry notice (i.e., should know from lay of land)
  • Record notice
118
Q

What is the court split regarding record notice?

A

Worse view

  • Subsequent buyer is on record notice of the contents of prior deeds transferred to others by a common grantor

Better view

  • Subsequent buyer does not have record notice of the contents of prior deeds transferred to others by a common grantor
119
Q

What are the equitable defenses to enforcement of an equitagble servitude?

A

Changed conditions

  • Must be:
    • So pervasive that entire area has changed
  • Insufficient:
    • Mere pockets of limited change
120
Q

What are the elements of adverse possession?

A
  • Continuous uninterrupted possession for statutory period
  • Open and notorious possession like typical owner
  • Actual and exclusive possession
  • Hostile possession
121
Q

When determining adverse possession, what viewpoint do you use?

A

The objective viewpoint.

The possessor’s subjective state of mind is irrelevant

122
Q

What is the concept of tacking with regard to adverse possession?

When does it apply?

When does it not apply?

A

One adverse possessor can tack onto his time with the land his predecessor’s time, so long as there is privity, which is satisfied by:

  • Non-hostile nexus between the parties

Not allowed when:

  • There has been an ouster
123
Q

When will a statute of limitations not run (i.e., be tolled) for purposes of adverse possession?

A

When the true owner is afflicated by a disability at the start of the adverse possession

Disabilities include:

  • Infancy
  • Insanity
  • Imprisonment
124
Q

What is the process for every conveyance of land?

A
  1. The land contract (which lasts only until Step 2)
  2. The closing, where the deed is the operative document
125
Q

What should you know about the land contract and the statute of frauds?

A

It must be:

  • In writing
  • Signed by the party to be bound (i.e., defendant, so make sure both parties sign it)
  • Describe the land
  • Explain the consideration

Exception:

  • Doctrine of part performance
    • If based on the facts 2 of the following 3 exist, the doctrine is satisfied and equity will decree specific performance of the land contract despite the statute of frauds:
      1. Purchaser takes possession
      2. Purchaser pays all or part of the price
      3. Purchaser makes substantial improvements
126
Q

What happens if the amount of land recited in a land contract is more than the actual size of the parcel?

A

The purchasing party can move for specific performance with a pro rata reduction in price

127
Q

Who takes risk of loss when a land contract is signed?

A

Apply the doctrine of equitable conversion (i.e., equity regards as done that which ought to be done)

So, once the land contract is signed, the purchaser owns the land and bears the risk of loss unless the contract says otherwise (which often times they do)

128
Q

What are the implied promises in every land contract?

A
  1. Marketable title
    • Seller promises to give marketable title at closing
  2. False statements
    • Seller promises not to make any false statements of material fact
    • Seller promises not to withold disclosure of latent material defects
    • Note: any disclaimer will not excuse the seller from liability for fraud
129
Q

What is the standard for marketable title?

A

Marketable title is title free from:

  • Reasonable doubt
  • Lawsuits
  • Threats of litigation
130
Q

Under what circumstances will title be rendered unmarketable?

A
  1. Adverse possession
    • If even part of the title is based on adverse possession, it is unmarketable
    • Seller must have good record title
  2. Encumbrances
    • Servitudes and mortgages render title unmarketable unless the purchaser waved the servitude or lien
  3. Zoning violations
    • If a property actually violates a zoning ordinance, title is unmarketable
131
Q

What implied warranties are not present in a land contract?

A
  • Implied warranty of fitness
  • Implied warranty of habitability

The common law norm is caveat emptor (i.e., buyer beware)

Exception:

  • Sale of a new home by a builder-vendor
    • Implied warranty of fitness and workmanlike construction applies
132
Q

What is the closing?

A

When the deed passes legal title from seller to buyer

133
Q

How does a deed pass legal title from seller to buyer?

A

It must be “LEAD”

  • Lawfully
  • Executed
  • And
  • Delivered
134
Q

What is required for a deed to be lawfully executed?

A

To be lawfully executed:

  • Deed must:
    • Be in writing signed by the grantor
    • Contain an unambiguous description of the land
  • Deed does not require:
    • Recitation of consideration
    • Passing of consideration
135
Q

What is required for a deed to be delivered?

A

Grantor must have the present intent to be bound, regardless of whether the deed itself was transferred

So, delivery requirement could be satisfied when:

  • Grantor physically transfers deed to grantee
  • Grantor uses an agent to transfer deed to grantee
  • Grantor mails deed to grantee
  • Grantor places the deed in escrow via escrow agent
136
Q

What would defeat the delivery requirement for a deed at closing?

A

The recipient express rejection of the deed

137
Q

What happens if a deed is transferred to a grantee with an oral condition?

A

Assuming the deed is absolute on its face, the oral condition falls out.

It is not provable and delivery is complete.

138
Q

How can escrow be used for delivery of a deed?

What is the advantage of it?

A

Grantor may place a deed in escrow using an escrow agent, who then delivers the deed to grantee once certain conditions are met - this satisfies delivery

Advantages

  • If grantor dies or becomes incompetent, still passes
139
Q

What are the different types of deeds?

A
  1. Quitclaim
  2. General warranty deed
  3. Statutory special warranty deed
140
Q

What is the quitclaim deed?

A

Think of Shaggy - i.e., “It wasn’t me.”

The quitclaim:

  • Contains no covenants
  • Does not even promise marketable title
141
Q

What is the general warranty deed?

A

This is the best deed a buyer could hope for

It contains:

  • Three present covenants:
    1. Covenant of seisin
      • _​​_Grantor owns the estate (seisin = title)
    2. Covenant of right to convey
      • _​​_Grantor has the power to convey title
    3. Covenant against encumbrances
      • _​​_No servitudes or mortgages on property
  • Three future covenants:
    1. Covenant for quiet enjoyment
      • _​​_Grantee won’t be disturbed in possession by a third party’s lawful claim of title
    2. Covenant of warranty
      • _​​_Grantor will defend (i.e., indemnify) grantee against lawful title claims brought by others
    3. Covenent for further assurances
      • _​​_Grantor will do what’s needed in the future to protect title
142
Q

What is the distinction between present and future covenants?

A

Present covenants

  • Breached at the moment of delivery of the deed
  • SOL runs at delivery

Future covenants

  • Breached later when grantee is disturbed in possession
  • SOL runs at time of future breach
143
Q

What is the statutory special warranty deed?

A

Contains two promises that grantor makes only on behalf of himself (i.e., not on behalf of predecessors in interest):

  1. Grantor has not conveyed the property to anyone other than grantee
  2. The property is free from encumbrances made by the grantor
144
Q

What are the two bright-line rules regarding the property recording system?

A
  1. Notice jurisdiction
    • Requires:
      • Bona fide purchaser
        • (But for Va. consider S. Ct. decision)
  2. Race-notice jurisdiction
    • Requires:
      • Bona fide purchaser
      • Recording
145
Q

Who do the recording acts protect?

A
  • Bona fide purchaser
  • Mortgagees
146
Q

What is a bona fide purchaser?

A

Someone who buys property:

  1. For value
  2. Without notice that someone else got it first
147
Q

What meets the value requirement for a bona fide purchaser?

What does not?

A

Sufficient:

  • All that is needed is substantial pecuniary consideration

Insufficient:

  • Mere heir, devisee, or donee, unless shelter rule applies
148
Q

For purposes of the bona fide purchaser requirement, what are the forms of notice that a buyer could be charged with?

A

(“AIR”)

  • Actual notice
  • Inquiry notice
  • Record notice
149
Q

What does inquiry notice mean?

A

A buyer has a duty to examine the land

  • Whether he actually does so or not, he is on inquiry notice of whatever such an examination would turn up

Additionally, if a recorded instrument makes reference to an unrecorded transaction, the buyer has a duty to follow-up

  • Whether he actually does so or not, he is on inquiry notice of whatever such an examination would turn up
150
Q

What does record notice mean?

A

At the time the buyer takes, another party had properly recorded a deed on the property

The key is PROPERLY recorded

151
Q

What recording system does Virginia use?

A

Virginia is technically a notice statute state

However, the Virginia Supreme Court recently suggested that a bona fide purchaser must also win the race to record

152
Q

What is required by a notice statute?

What is required by a race-notice statute?

A

Notice

  • Must be the last bona fide purchaser

Race-notice

  • Must be a bona fide purchaser
  • Who records before other bona fide purchasers
153
Q

With regard to proper recording of a deed, what are the chain of title problems that often come up?

A
  1. The Shelter Rule
    • A transferee “takes shelter” in the status of her transferor, and thereby “steps into the shoes” of the transferor
    • So, if the transferor could have prevailed in a recording dispute, so can the transferee
  2. The Wild Deed
    • This is a deed conveyed from A to B
      • Where A did not record
      • But B did record
    • B’s recording is a nullity
    • This is a chain of title problem
  3. Estoppel by Deed
    • One who conveys realty in which he has no interest is estopped from denying the validity of that deed if he later acquires the previously transferred interest
      • A has title
      • B (without title) to C. C records.
      • A to B. B records.
        • Now C has title
      • B to D. D records.
        • Now D has title.
        • C should have re-recorded
154
Q

What is a mortgage?

A

The conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt

A mortgage is the union of two elements:

  1. A debt
  2. A voluntary lien in the debtor’s land to secure the debt
155
Q

Who is the mortgagor?

Who is the mortgagee?

A

Mortgagor - debtor

Mortgagee - creditor

156
Q

What is a legal mortgage?

What is an equitable mortgage?

A

Legal mortgage

  • A mortgage evidenced by writing
  • Also known as:
    • Note
    • Mortgage deed
    • Security interest in land
    • Deed of trust
    • Sale leaseback

Equitable mortgage

  • Instead of executing a note or mortgage deed for a loan, the mortgator gives the mortgagee a deed to his property that is absolute on its face
157
Q

What type of evidence is admissible to establish an equitable mortgage?

A

Parole evidence, to show the parties’ true intent

158
Q

What if a mortgagee sells the property to a bona fide purchaser?

A

The bona fide purchaser owns the land

The mortgagor’s only recourse is to sue the mortgagee for:

  • Fraud, and
  • The sale proceeds
159
Q

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

A

Unless and until foreclosure,

  • Mortgagor
    • Has title and the right to possess
  • Mortgagee
    • Has a lien
160
Q

If the mortgagee properly transfers his note, what happens to the mortgage?

A

It follows

161
Q

How does the mortgagee transfer his interest?

A

He can either:

  1. Endorse the note and deliver it to the transferee
  2. Execute a separate document of assignment
162
Q

What is a holder in due course?

A

The transferee of a mortgage who takes it free of any personal defenses that could have been raised against the original mortgagee

163
Q

How do you become a holder in due course?

A
  1. Original note must
    • Be negotiable, made payable to the named mortgagee
    • Be endorsed, signed by the named mortgagee
    • Be delivered to the transferee
  2. Transferee must:
    • Take the note in good faith without notice of any illegalities
    • Pay value for the note - i.e., some amount that is more than nominal
164
Q

What are the mortgagor’s personal defenses?

A

Wrong fuel = “W FUEL”

  • Waiver
  • Fraud in the inducement
  • Unconscionability
  • Estoppel
  • Lack of consideration
165
Q

What are the mortgagors real defenses?

A

These can still be asserted against a holder in due course:

MAD FIFI4

  • Material Alteration
  • Duress
  • Fraud In the Factum
  • Incapacity
  • Illegality
  • Infancy
  • Insolvency
166
Q

What happens if a mortgagor sells property that is mortgaged?

A

The lien stays on the land, so long as it was properly recorded

167
Q

If a mortgagor sells the property that is mortgaged, who is personally liable on the mortgage? The mortgagor-seller, or the buyer?

A

If the buyer assumed the mortgage:

  • Both
    • Buyer is primarily liable
    • Mortgagor-seller is secondarily liable

If the buyer took the property subject to the mortgage:

  • Only mortgagor-seller is liable
    • But property can still be foreclosed
168
Q

What must the mortgagee due to foreclose?

What happens then?

A

Mortgagee must do so by proper judicial action

Then:

  • Land is sold
  • Sale proceeds go to:
    1. Satisfying attorneys’ fees, foreclosure expenses, and accrued interest
    2. If remaining sale proceeds are less than debt:
      • Mortgagee brings a deficiency action against debtor
    3. If remaining sale proceeds are more than debt:
      • Junior liens are paid in order of priority
      • Surplus goes to debtor
169
Q

Which liens will foreclosure terminate?

Which liens will foreclosure not terminate?

A

Foreclosure only terminates interests being foreclosed and any interests junior

It does not terminate senior interests

170
Q

Who are necessary parties to a foreclosure action?

Who are not?

A

Necessary:

  • The mortgagor
  • Those with interests junior to the foreclosing party

Not necessary:

  • Those with interests senior to the foreclosing party
171
Q

What happens if a foreclosing party fails to join a necessary party?

A

The claims of the party that was not joined are preserved, which means that those mortgages remain on the land

172
Q

What should a foreclosure sale buyer do if either:

  • The property is subject to senior liens that are not joined
  • The property is subject to junior liens that are not joined
A

The buyer should pay FMV less the value of the remaining liens so that he can pay those off after purchase

173
Q

What is required for a creditor to get priority?

A

They must record (if they don’t they have no priority)

174
Q

What is a purchase money mortgage?

What is unique about it?

A

It is a mortgage given to secure a loan that enables the debtor to acquire the encumbered land

The purchase money mortgage enjoyed superpriority - i.e., he jumps up in line even if other creditors had floating liens (i.e., after-acquired collateral clauses) and recorded those liens before them

175
Q

What is a subornation agreement?

Why do creditors do them?

A

Enables a senior creditor to subordinate its priority to a junior creditor

They do them because they hope the other side will do it in their favor later on

176
Q

What is redemption in equity - i.e., equitable redemption?

How is it exercised?

Can it be waived?

A

Definition

  • At any time prior to the foreclosure sale:
    • The mortgagor can try to redeem the land
  • After the foreclosure sale:
    • The right of equitable redemption disappears

Process

  • Mortgagor must pay:
    • Full balance
    • Accrued interest
    • Costs

Waiver

  • It cannot be waived - this is called clogging
177
Q

What is statutory redemption?

How is it exercised?

Who gets possession during the period?

A

Definition

  • Gives the mortgagor a statutory right to redeem for a fixed period after foreclosure

Process

  • Mortgagor must pay:
    • Foreclosure sale price
      • Not the amount of the original debt

Possession

  • In most states, mortgagor holds possession during period
178
Q

If land is improved by building and an adjacent landowner’s excavation causes the improved land to cave, who is liable?

A

The excavator is only liable if negligent, unless:

  • Plaintiff establishes that:
    • The improved land would have collapsed due to the excavation even in its unadorned state - i.e., without the improvements (i.e., strict liability)
179
Q

What are the major systems for determining the allocation of water in water-courses - e.g., streams, rivers, lakes?

A
  1. Riparian doctrine
    • Water belongs to those owning the land bordering it
    • These people are riparians
    • Riparians share right of reasonable use of the water
  2. Prior appropriation doctrine
    • Water belongs to the state
    • Right to divert and use it can be acquired by anyone
180
Q

How do you determine who has the right to water, regardless of whether the riparian or prior appropriation doctrine is used?

A

First in time, first in right

You can acquire the right merely by being the first to make any productive use of it

181
Q

What is groundwater?

Who has the right to use it?

A

It is water beneath the surface of the earth that is not confined to a known channel

The surface owner can make reasonable use of it

The surface owner CANNOT be wasteful

182
Q

What are surface waters?

Who can divert it?

A

Surface waters come from rain, springs, or melting snow - i.e., they are a common enemy

A landowner can combat the flow of surface water, but they must avoid unnecessary harm to others’ land

183
Q

What are the rights of a possessor of land?

A

The right to be free from:

  1. Trespass
    • Invasion of land by a physical object
    • Can be removed by bringing an ejectment action
  2. Private nuisance
    • Substantial unreasonable interference with another’s land use
    • Does not require physical invasion
    • Cannot be baised on a hypersensitive plaintiff
      • E.g., plaintiff whose dogs suffer from noises emitted by a power plant that only dogs, and not humans, can hear
184
Q

What is eminent domain?

A
  • The 5th Amendment power
  • To take private property
  • For public use
  • In exchange for just compensation
185
Q

What are explicit takings?

What are implicit takings?

A

Explicit taking

  • E.g., government condemns your land to make way for a public highway

Implicit taking

  • Also known as a regulatory taking
  • This is a government regulation that, although not intended to be a taking, has the same effect
186
Q

What is the remedy for an implicit taking (i.e., regulatory taking)?

A

The government must either:

  1. Pay the owner
  2. Terminate the regulation and
    • Pay the owner for damages that occurred while it was in effect
187
Q

What is zoning?

A

Pursuant to its police powers, the government may enact statutes to reasonably control land use

188
Q

What is a variance?

How is one obtained?

A

It is a person’s way to achieve flexibility in zoning

Burden of proof

  • Proponent must show:
    • Undue hardship
    • Variance won’t decrease neighboring property values
189
Q

What is a nonconforming use?

Can it be eliminated?

A

It is a once lawful, existing use that is now noncomforming due to a new zoning ordinance

Elimination

  • Cannot be done all at once unless just compensation is paid
  • Otherwise it would be an unconstitutional taking
190
Q

What are exactions?

What is required for them to pass constitutional scrutiny?

A

They are those amenities that the government seeks in exchange for granting permission to build

To pass constitutional scrutiny, they must:

  • Be reasonably related in nature and scope to the impact of the proposed development
191
Q

Under Virginia law, a temporary family health care structure used by a caregiver while providing care for a mentally impaired person is a ____________________ on a lot zoned for single family residences:

A

Permitted accessory use

192
Q

Virginia follows the ____________________ theory of title, which means what?

A

Lien theory of title, under which a mortgagee may not take possession of land subject to a mortgage before foreclosure

193
Q

To record a deed in Virginia, it must be either:

A
  1. Acknowledged by the grantor
  2. Proved by two witnesses
194
Q

In which type of deed does a seller warrant only that she herself has done nothing to create a title defect?

A

Statutory special warranty deed

195
Q

Under Virginia law, a deed that is defective may be either void or voidable. An example of a void deed is:

A

A deed to a dead person

196
Q

In the sale of any “new dwelling”, the vendor impliedly warrants that to the best of his knowledge the building is free of structural defects, constructed in a workmanlike manner and fit for habitation. Under Virginia law, the term “new dwelling” includes:

A

A dwelling that has not been previously occupied for more than 60 days by anyone other than the vendor or the vendee.

This does not include condo units.

197
Q

Under Virginia law, what is the responsibility of a seller of one to four dwelling units

A

He must:

  • Disclose any changes to the condition of the property that occur between the signing of the contract and the closing.

And he must either:

  • Disclose the physical condition of the property under contract, or
  • Say that the property is being conveyed “as is.”
198
Q

Under the implied covenant of marketable title:

A

The covenant of marketable title is breached if the seller cannot deliver the contract’s specified number of acres.

BUT If the sale is in gross, it is treated as the sale of the whole unit of property as named in the contract, and the acreage mentioned in the contract is ignored.

199
Q

In determining whether the “hostile” element of adverse possession has been satisfied, a court will consider whether:

A

A person is a family member

200
Q

Under Virginia real property law, possession of the surface will not give title by adverse possession to the mineral rights underground:

A

If the mineral rights have been severed from the surface rights.

201
Q

Under Virginia law, what is the time period for adverse possession?

A

Church property

  • 25 years

All other property

  • 15 years
202
Q

Under Virginia real property law, a covenant not to compete:

A

Does not run with the land

(unlike the majority of jurisdictions in which it does)

203
Q

Elsie orally licenses Loretta to come onto Blueacre to excavate a drainage ditch connected to Loretta’s parcel, Greenacre. Loretta incurs substantial expense preparing to undertake the work in reliance on that oral license. Under Virginia law, this arrangement would be deemed:

A

An equitable easement

(the majority of other jurisdictions would call this an irrevocable license)

204
Q

In addition to the usual ways of terminating an easement, an easement will be terminated in Virginia if:

A

The original purpose for which the easement was created no longer exists.

205
Q

Under the Virginia Residential Landlord and Tenant Act (VRLTA), a landlord must disclose whether there is any visible evidence of mold in a dwelling unit. What happens if:

  • The landlord’s written disclosure states that there is visible evidence of mold
  • The landlord’s written disclosure states that there is not visible evidence of mold
A

Statement that there is mold

  • The tenant may terminate the tenancy or accept the dwelling unit, in which case the landlord has five business days to remediate the mold condition.
  • If the mold condition materially affects the health or safety of any tenant or authorized occupant:
    • The landlord may require the tenant to temporarily vacate the dwelling unit for up to 30 days in order to perform mold remediation.
    • The landlord must provide the tenant with either a comparable dwelling unit or a hotel room at no cost to the tenant.

Statement that there is not mold

  • The statement is deemed correct unless the tenant objects in writing within five days after receiving the report.
206
Q

Under the Virginia Residential Landlord and Tenant Act (VRLTA), a landlord may not require a security deposit in excess of ____________________ months’ periodic rent:

A

2 months

207
Q

Under Virginia law, the Doctrine of Worthier Title (DOWT):

A

Under the common law DOWT, a remainder limited to the grantor’s heirs was deemed invalid and the grantor retained a reversion in the property.

Under Virginia law, the Doctrine of Worthier Title (DOWT) has been abolished as a rule of law and as a rule of construction.

208
Q

What is the rule of destruction?

Does it apply in Virginia?

A

At common law, a contingent remainder had to vest prior to or upon termination of the preceding freehold estate or it was destroyed.

This “rule of destructibility” has been abolished in Virginia.

Thus, if a contingent remainder is still contingent upon termination of the preceding freehold estate, it is not destroyed but continues as an executory interest until the contingency occurs.

209
Q

Under Virginia law, does a surviving spouse have a right to the deceased’s property?

A

Under Virginia law, a surviving spouse has a statutory right to take a portion of the deceased spouse’s estate.

Historically, a life estate by marital right (i.e., a legal life estate) arose under dower and curtesy, which were the common law interests of a spouse in the real property of the other spouse. These interests could not be defeated by conveyance or by creditors. Most states, including Virginia, have abolished both dower and curtesy and have instead given the surviving spouse a statutory right to take a portion of the deceased spouse’s estate.

Virginia Bar Exam (22 decks)

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