Real Property Flashcards
cumulative zoning
creates hierarchy; then land can be used for named use or any higher-ranking use
variance
departure from zoning restriction
amortization
gradual elimination of nonconforming use within land zoning
is the right to airspace above a parcel exclusive?
no, but owner is entitled to freedom from excess noise
doctrines of watercourse rights
riparian (water belongs to those whose land borders the water course; only to be used on riparian parcel)
prior appropriation (rights acquired by actual use, determined by priority of beneficial use)
liability for an owner of land in its natural state if excavation causes subsiding (slipping or caving in?)
strict liability
liability for an owner of land ADJACENT to buildings if his excavation causes trouble?
strict liability if est. that land would’ve collapsed in natural state
otherwise only liable if excavation was conducted negligently
can redemption in equity be waived in a mortgage?
no
redemption in equity
prior to foreclosure sale, mortgagor may redeem property by paying the amount due.
if the note/mortgage contains an acceleration clause, mortgagor must pay full balance (including any interest)
which interest does foreclosure destroy?
the interest being foreclosed and any junior interests
if a junior interest holder is inadvertently excluded from a foreclosure matter, that holder’s interest remains
purchase money mortgage
takes priority over prior claims
maybe given to the seller as part of the purchase price, or to a third party
priority of foreclosure proceeds
expenses/attorneys’ fees/court costs
foreclosed loan
junior loans
what if foreclosure proceeds are insufficient to satisfy the mortgage debt?
mortgagee retains a personal cause of action against the mortgagor (deficiency judgment)
lien theory
Mortgagee holds a security interest only; mortgagor is landowner until foreclosure.
Mortgagee can’t take possession of land before foreclosure!
When, prior to foreclosure, may mortgagee take possession?
when mortgagor consents or abandons
When property is damaged or destroyed before the testator’s death buy the casualty insurance proceeds are not paid until after the death, does ademption apply?
No. The beneficiary of the specific bequest takes the insurance proceeds.
Do anti-lapse statutes pass gifts to a predeceasing beneficiary’s spouse?
Never. The predeceasing beneficiary’s descendants are substituted.
What is an installment land contract and what is its common forfeiture clause?
Dictates installment purchaser obtains legal title only when the full contract price is paid.
Common forfeiture clause: on default, vendor cancels the contract, retakes possession, and retains all money paid.
How are recording acts protective?
They protect bona fide purchasers from the detriment of prior secret interests.
Is recordgin essential to the validity of a deed between grantor and grantee?
Not in itself; but can be essential to protecting the deed from subsequent BFPs.
notice statute
Land conveyances/mortgages, if not recorded, not valid against subsequent BFPs
(“notice is everything”)
subsequent BFP
paid value
no actual or constructive notice of prior sale
race-notice statute
subsequent BFP must take without notice and record before the prior grantee
lack of notice means first in time doesn’t take priority, but the race to record still trumps all
race statute
notice is irrelevant; whomever records first wins
rare statute
are donees, heirs, and devisees protected any recording acts?
no: they didn’t pay anything, so that. can’t be BFPs
shelter rule
anyone who takes from a BFP steps into the BFP’s shoes and is likewise protected by recording acts
(unless transferee held prior title and is trying to beat the system moving through a BFP)
Is a BFP’s statues impacted by learning of a prior recording between conveyance and recording?
No; only notice at time of conveyance matters.
Does a BFP have a legal duty to perform a title search?
No, but subsequent purchasers are held to whatever notice such a search would have provided
wild deed
not connected to any chain of title
O conveys Blackacre to A. A doesn’t record. A contest to B and B records.
O then conveys Blackacre to C. C does NOT have notice of B’s claim.
covenant of seisin
grantor possesses and passes both title and possession at time of grant
covenant for quiet enjoyment
grantor covenants that the grantee’s possession will not be disturbed by a lawful third party claim of title
quitclaim deed
releases whatever interest the grantor has; covenants of title neither included nor implied
three covenants which can only be breached at time of conveyance
seisin
right to convey
against encumbrances
what if a grantor purports to convey a property she does not own, then she subsequently acquires it?
the property automatically goes to the grantee (unless the grantor only ever conveyed a quitclaim deed)
impact of deed to a dead person
void, even if grantor was unaware of the death. title remains with grantor
impact of grantee returning deed to grantor
none: grantee must draw up and deliver a new deed to return title
Valid delivery when a grantor transfers to grantee via third party WITHOUT CONDITION?
Valid is grantor gave such instructions.
Without instructions, validity depends on how the third party is construed. If grantor’s attorney, delivery valid. If considered grantor’s mere agent, delivery invalid because grantor did not pass power.
Valid delivery when a grantor transfers to grantee via third party WITH CONDITION?
Commercial transaction.
Valid, and parol evidence is admissible to show condition.
When a grantor transfers to donee via third party WITH CONDITION, may grantor revoke?
Yes, so long as condition is not grantor’s death and there is no enforceable contract to convey.
necessary inclusions for a valid deed
in writing
signed by grantor
reasonably identify parties and land
deed valid if name of grantee or land description blank?
generally valid without grantee’s name
land description blank, deed void unless grantee was expressly given authority to fill it in
how precise must a deed’s land description be?
must provide a GOOD LEAD
“all my land in Auburn”
Is parol evidence available to explain a good lead?
Yes, but not admissible if the land description is totally silent.
Doctrine of equitable conversion
Once contract is signed, buyer owns real property and seller’s proceeds are personal property
Once a land sale contract is signed, who bares risk of loss prior to closing?
Majority places risk on the buyer
BUT seller must credit any fire/casualty insurance proceeds received against the purchase price
Is title acquired by adverse possession marketable?
no
May seller satisfy a mortgage or lien with sale proceeds at closing?
yes
Do zoning restrictions impact marketability?
Not unless there is an existing violation. Then, title is unmarketable.
Does implied covenant of marketability apply after closing?
No. The seller is no longer liable on the implied covenant after closing. Then, seller is liable only for express promises made in the deed.
Who assesses marketability of title and what are those responsibilities?
Buyer must notify seller is title is unmarketable, and provide reasonable time to cure.
Does a quitclaim deed affect the implied covenant to provide marketable title?
No. But the covenant still goes away if the buyer doesn’t look into marketability and closes on the sale.
In conveying land sale contracts, is the closing date binding?
No. Courts presume time is not of the essence. A party rendering late performance can still enforce the contract within a “reasonable time” (maybe two months).
adverse possession elements
actual entry
open and notorious
adverse/hostile
continuous through statutory period
May two or more people obtain title by adverse possession?
Yes: they take as TC.
For adverse possession, does the statutory period begin to run if the true owner was disabled when the cause of action first accrued?
no
Is adverse possessor subject to restrictive covenants on the land?
Not if she used the Landin violation of the restrictive covenant for the statutory period.
What land cannot be adversely possessed?
government-owned land
land registered under Torrens system
equitable servitude
covenant
regardless whether it runs with the land at law, equitably enforced against assignees of burdened land who have notice
(remedy usually injunction)
May a single promise create an equitable servitude and a real covenant?
yes, generally! diff is often remedy sought
Do real covenants and equitable servitudes require a writing?
Real covenants always do.
Equitable servitudes generally do, though they may be implied from a common scheme for development in a subdivision.
What if a subdivision developer begins selling lots with a restrictive covenant after the first few are sold?
The restrictive covenant does not apply to the first few.
Is there horizontal privity between two landowners who agree to maintain a fence between their properties?
No. Must have grantor/grantee, landlord/tenant type of relationship.
For an equitable servitude, what is required for a benefit or burden to run?
benefit:
intent
touch and concern
burden: add vertical privity
For a real covenant, what is required for a benefit or burden to run?
benefit:
intent
touch and concern
notice
burden:
add horizontal, vertical privity
May a license be transferred?
No, it’s inalienable. Any attempt to transfer results in revocation by operation of law.
If a grantor orally grants an easement for more than a year what result?
Unenforceable because it’s not in writing, but the grantee does have a valid easement.
When do easements created by necessity end?
As soon as the necessity ends.
Remedy for overuse or misuse of an easement?
Injunction. Does not terminate!
Time-limit of an easement
Presumed perpetual unless the grant specifically limits
affirmative easement
holder makes affirmative use of the servant tenement
negative easement
holder entitled to compel possessor of servant tenement to refrain from certain activity on the servient estate
easement appurtenant
dominant tenement gets to use or enjoy the servient tenement
Does an easement appurtenant pass with transfer of benefitted land?
Yes, regardless whether mentioned in the conveyance.
May an easement appurtenant be conveyed apart from the dominant tenement?
No, unless conveyed to the owner of the servient tenement to extinguish the easement.
easement in gross
holder acquires right to use servient tenement independent of possession of another tract of land
Are easements in gross transferrable?
Not for personal use (right to swim in a lake), but they are for commercial use (right to erect billboards, etc.)
