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MBE Bar Studies > Real Property > Flashcards

Real Property Flashcards

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1
Q

Defeasible Estate

A

An estate with a remainder vested in some person, who may lose the vested interest upon the occurrence of some event
• Requires clear words of intent for the remainder to vest
» Words of desire, hope, or aspiration are insufficient

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2
Q

3 Types of Defeasible Estates

A

Fee Simple Determinable
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to an Executory Interest

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3
Q

Fee Simple Determinable

A

Property automatically reverts back to grantor upon the happening of a given event
Phrases such as “for so long as,” “while,” “during,” “until,”
» Accompanying future interest = possibility of reverter (retained by grantor)

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4
Q

Fee Simple Subject to Condition Subsequent

A

Grantor retains power to terminate grantee’s estate (grantor must take action to terminate; does not occur automatically)
“to A, but if he wins the lottery, grantor reserves the
right to reenter and retake”
» Accompanying future interest = right of reentry (retained by grantor)

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5
Q

Fee simple subject to an executory interest

A

Property automatically transfers to a third party (i.e., someone other than grantor) upon the happening of a given event
“To A, but if A is ever arrested, then to B”
» Accompanying future interest = shifting executory interest (retained by third party)

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6
Q

Future Interests in Grantor

A

a) Possibility of reverter
• Accompanies a fee simple determinable
b) Right of reentry/power of termination
• Accompanies a fee simple subject to a condition subsequent
c) Reversion
• Default future interest for grants of an estate smaller than a fee simple, such as life estates
• E.g., “to A for life” or “to A for 99 years”

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7
Q

Future Interests in Grantee

A

a) Vested remainder — three types:
i. Indefeasibly vested remainder
ii. Vested remainder subject to total divestment
iii. Vested remainder subject to open
b) Contingent remainder
c) Executory interest

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8
Q

Remainder

A

A future interest in a third person that arises immediately upon the termination of the preceding estate

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9
Q

Vested Remainder

A

A remainder that automatically becomes possessory upon the natural expiration of the preceding estate
• Limitations — vested remainders cannot:
a) Be subject to any condition precedent
b) Vest in an unknown or unascertained person

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10
Q

Types of Vested Remainders

A

a) Indefeasibly vested remainders
b) Vested remainder subject to total divestment/ executory limitation
c) Vested remainder subject to open

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11
Q

Types of Contingent Remainders

A

a) There is a condition precedent to the future interest becoming possessory or
b) The future interest vests in an unascertained taker

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12
Q

Indefeasibly Vested Remainder

A

Becomes possessory immediately upon termination of the prior estate

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13
Q

Vested Remainder Subject to Total Divestment

A

Subject to some condition subsequent, such that the remainderman could be divested after taking possession
» E.g., “to A for life, remainder to B; but if B weds, to C”

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14
Q

Vested Remainder Subject to Open (Class Gift)

A 
Remainder vested in a described class of takers, at least one of whom is capable of taking possession (i.e., by virtue of being alive)
» Not subject to any condition precedent
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15
Q

Rule of Convenience

A

Class closes whenever any class member can call for distribution of her share; does not apply if it conflicts with the grantor’s expressed intent

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16
Q

Contingent Remainder

A

A remainder subject to a condition precedent, which must be satisfied before the interest becomes possessory

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17
Q

Rule of Destructibility

A

At common law, a contingent
remainder is destroyed if it remains contingent (i.e., the condition is not satisfied) when the preceding estate ends
• E.g., O grants “to A for life, then to B once he goes to law school.” A dies and B has not gone to law school
» At common law, B gets nothing upon A’s death
• Modern rule — gives a reversion to grantor or grantor’s heirs until grantee satisfies the condition

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18
Q

Shelley’s Rule

A

O grants “to A for life, then to A’s heirs” and A is alive
• At common law, the remainder merges and A has a fee simple absolute
• Modern rule — A has a life estate and A’s heirs have contingent remainders
» O has a reversion b/c A could die without heirs

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19
Q

Doctrine of Worthier Title

A

O conveys “to A for life, then to O’s heirs”

• The contingent remainder in O’s heirs is void; A instead has a life estate and O has a reversion

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20
Q

Executory Interest

A

A future interest in a third party that takes effect by cutting short some interest — two types: shifting and springing
• Includes any future interest that is not a remainder
• Look for phrases like “but if,” “then to,” “for so long as,” etc.
• Executory interest holders lack standing to sue for waste

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21
Q

Shifting Executory Interest

A

Always follows a defeasible fee
• Cuts short someone other than the grantor
• E.g., “to A and his heirs, so long as the property is used for storage. But if used for any other purpose, to B and his heirs”

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22
Q

Springing Executory Interest

A

Cuts short the interest of the
grantor or his heirs
• E.g., “to A, if and when he gets married”

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23
Q

Rule Against Perpetuities

A

No property interest is valid unless it must vest, if at all, no later than 21 years after the death of a life in being at the time the interest was created
• I.e., a future interest is void if there is any possibility, no
matter how remote, that it will vest more than 21 years after
the death of the measuring life

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24
Q

When does RAP apply?

A

RAP applies to:

a) Contingent remainders
b) Executory interests
c) Vested remainders subject to open

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25
Q

Tenancy in Common

A

An estate with multiple tenants in which each co-tenant owns an individual part and each has a right to possess the whole

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26
Q

Joint Tenancy

A

Creation — four conditions must concurrently exist when the tenants take their interests:
1) Time — JTs must take their interests at the same time
2) Title — JTs must receive their conveyance through the
same instrument
3) Interest — JTs must take equal and identical interests
4) Possession — JTs must have equal possessory rights

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27
Q

Severance of JT

A

• Transfer of interest — a JT interest becomes a tenancy in common upon transfer; this does not destroy the entire JT if two or more JTs remain
• Mortgage — lien theory (majority) vs. title theory (minority)
» Lien theory Jx — JT can take a mortgage on her interest without severing JT (b/c no title passes to mortgagee)
» Title theory Jx — JT is severed if any JT takes a mortgage on her interest because title passes to the mortgagee

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28
Q

Tenancy by the Entirety

A

Created by conveyance to a married couple; requires the same four conditions as a JT (time, title, interest, possession)
• Spouses are co-tenants
• Where recognized, a tenancy by the entirety is presumed in any conveyance made jointly to husband and wife

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29
Q

Severance of Tenancy by the Entirety

A

1) Death of one co-tenant
2) Mutual agreement of the parties in writing
3) Issuance of a divorce decree
4) Execution by a joint creditor (e.g., foreclosure)

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30
Q

Co-Tenant’s Rights & Duties

A 
Possession
Rent from exclusive possession
Rent from third parties
Adverse possession
Carrying costs
Repairs
Improvements
Waste 
Partition/Forced Sale
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31
Q

Leasehold Estates

A

An estate in which the tenant has a present possessory property interest and the landlord has a future interest (reversion)

Tenancy for years
Periodic Tenancy
Tenancy at will
Tenancy at sufferance

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32
Q

Tenancy for Years

A

Lasts for a fixed period of time
» Requires a definitive beginning and end date
» If duration is longer than one year, lease must be in
writing (required under SoF)
» Terminates automatically at the end of the fixed period
• No notice is required
» Also referred to as “estate for

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33
Q

Periodic Tenancy

A

A leasehold that is continuous for successive intervals (e.g.,
weeks or months) until either party gives notice of termination one full period in advance

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34
Q

Tenancy at Will

A

A tenancy with no fixed duration, terminable by either party at any time without notice

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35
Q

Tenancy at Sufferance

A

A default tenancy that arises when a tenant continues to possess property after the lease expires (i.e., a holdover tenant)

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36
Q

Options for Holdover Tenant

A

1) Sue to evict
2) Impose a new periodic tenancy
» Raised rent — landlord can demand higher rent for both
the holdover period and any new periodic tenancy if he
gave notice of the increase before the lease expired
» Commercial leases — if expired lease was for one year or longer, the new periodic tenancy can be year-to-year

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37
Q

Tenant’s Duties at Common Law

A

Duty to Repair
Duty to Pay Rent
Duty to not use for illegal purposes

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38
Q

Fixtures

A

Once-movable chattel that is annexed (i.e., attached) to real
property, indicating an intent to permanently improve property
• E.g., heating systems, lighting installations

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39
Q

LL Remedy Tenant Remains Possession

A

Landlord may:

1) File for notice of eviction
2) Continue the lease and sue for rent due

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40
Q

LL Remedy Tenant Abandons Premises

A

Landlord may:

1) Surrender — treat the abandonment as tenant’s surrender and accept it, releasing the tenant from the lease
2) Ignore (minority rule) — hold tenant liable for unpaid rent
3) Re-let (majority rule) — lease premises to new tenants and hold the breaching tenant liable for any losses

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41
Q

LL Duties & Warranties

A

Duty to Deliver
Implied Covenant of Quiet Enjoyment
Implied Warranty of Habitability
Tort Liability

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42
Q

LL Duty to Deliver

A

» Majority — actual possession
• Landlord must deliver physical possession to tenant
» Minority — legal possession (i.e., right to possess)
• New tenant is responsible for any holdovers on property
» Tenant’s remedy for breach = money damages

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43
Q

Implied Covenant of Quiet Enjoyment

A

A tenant has an implied right to quiet use and enjoyment of the premises, without interference from the landlord
• Breach may occur by actual eviction or constructive eviction

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44
Q

Actual Eviction

A

Landlord wrongfully evicts or excludes tenant from property

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45
Q

Constructive Eviction

A

Landlord’s actions or inactions render the property uninhabitable
• Elements:
1) Substantial interference — major and/or chronic
problems (e.g., leaky roof)
2) Notice — tenant must inform the landlord and give
him a reasonable opportunity to repair; landlord must
fail to act meaningfully
3) Vacate — tenant must vacate within a reasonable
period after the landlord fails to repair

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46
Q

Retaliatory Eviction

A

Landlord is prohibited from
retaliatory eviction if a tenant lawfully reports housing code
violations

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47
Q

Implied Warranty of Habitability

A

Residential property must be fit for basic human dwelling

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48
Q

T Remedy for Breach fo WoH

A

1) Move — vacate premises and terminate the lease
2) Repair — make reasonable repairs and deduct the costs
from future rent
3) Reduce or withhold rent — tenant can reduce rent or stop payment until a court determines the fair rental value given the breach
» Tenant must place withheld rent in escrow
4) Remain — tenant can remain in possession and seek money damages

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49
Q

LL Tort Liabilties

A

Common Areas
Latent Defects
Assumption of Repairs
Public Use

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50
Q

LL Common Areas

A

Duty of reasonable care

» Landlord must exercise reasonable care in maintaining and repairing common areas (e.g., hallways, stairs)

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51
Q

LL Latent Defects

A

Duty to disclose
» Landlord has a duty to disclose hidden defects he
should reasonably know of

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52
Q

LL Assumption of Repairs

A

Negligence standard
» Landlord is liable for harm caused by negligent repairs
he chooses to undertake

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53
Q

LL Public Use

A

Landlord is liable for known defects if he knows the property is for public use and tenant is unlikely to repair
» E.g., concert hall, convention center

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54
Q

Assignment

A

Entire leasehold transfers from tenant to assignee
• Assignee is in privity of estate with landlord — the two are bound by all covenants that run with the land
• Assignor remains in privity of contract with landlord
• Assignee owes rent directly to landlord, but assignor may be held liable for unpaid rent

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55
Q

Sublease

A

Partial leasehold transfers from sublessor to sublessee
• Sublessor is in privity of estate and contract with landlord (i.e., relationship between tenant and landlord is unchanged)
» Sublessee pays rent to sublessor as her tenant
• Sublessee is not liable to landlord for rent and is not bound by any covenants unless expressly assumed

56
Q

Easement

A

A non-possessory property interest that confers a right to use another’s land
• Servient estate = burdened land
• Dominant estate = benefited land (not always applicable)

57
Q

Easement Appurtenant

A

Entitles a dominant estate owner to use a servient estate’s land
» Attaches to the dominant estate and passes automatically (even if not mentioned in a conveyance)

58
Q

Easement in Gross

A

Entitles an individual or entity (not a dominant landowner) to use the servient estate
» Does not attach to land; there is no dominant estate

59
Q

Affirmative Easement

A

Entitles its holder to make

affirmative use of the servient estate

60
Q

Negative Easement

A

Entitles its holder to restrict the servient estate from otherwise permissible activities

61
Q

Types of Easements

A

Prescription
Necessity
Implication
Express

62
Q

Easement by Prescription

A

A process of acquiring an easement; similar to acquiring title by adverse possession
Requirements — acquirer’s use of another’s land must be:
1) Continuous — for the applicable statutory period
2) Open and notorious — owner knows or should know of use
3) Actual
4) Hostile — without owner’s permission

63
Q

Easement by Implication

A

An easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots
Requirements:
1) Easement exists prior to division of a single tract of land
2) Common grantor’s use is continuous and apparent
3) Use is reasonably necessary for enjoyment of the dominant tenement
4) Parties intended the use to continue after division of the
land

64
Q

Easement by Necessity

A

An easement can arise if access to or from a property is impossible without the easement (i.e., the easement’s existence
becomes necessary)
Creation — usually arises when a landowner sells a portion of her property and the resulting division deprives one lot owner of access to a public road or utility
Termination — expires automatically when the necessity ends

65
Q

Express Easement

A 
Grant or Reservation
Express easements must be:
1) In writing
2) Signed by the servient estate holder
3) Satisfy deed formalities (i.e., lawfully executed and
delivered)
66
Q

Scope of Easement

A

An easement’s scope is determined by the terms or conditions that created it

67
Q

Expansion of Easement

A

Easement holders cannot unilaterally expand the scope of their easement, e.g., through overuse or misuse
• Remedy for violation = injunction

68
Q

Termination of Easements

A 
Estoppel
Necessity Ends
Destruction of Servient Tenement
Release
Abandonment
Merger
Prescription
69
Q

Negative Easement Categories

A

Entitles the holder to prevent the servient landowner from
engaging in otherwise permissible actions on his own land
4 categories of acts may be prevented:
1) Light
2) Air
3) Support
4) Stream of water from an artificial flow

70
Q

License

A 
A privilege to enter another’s land for some delineated purpose (not an interest in land)
• Licensor may revoke the privilege at any time, unless
estoppel applies (e.g., licensor has allowed licensee to contribute substantial money, labor, etc.)
71
Q

Profit

A

A nonpossessory property interest entitling its holder
to enter a servient estate to remove resources (e.g., minerals, timber, soil, fish)
• All rules governing easements apply to profits (i.e., creation, transferability, and termination)

72
Q

Covenant

A

A promise to do or refrain from doing something related to land
• A contractual limitation or promise regarding land

73
Q

Real Covenant

A

A covenant concerning real property
• Runs with the land at law — subsequent owners may be
burdened by the covenant or may enforce it
» Different requirements apply for burdens and benefits
running with the land
• Affirmative covenant — a promise to do something related to land
Restrictive covenant — a promise to refrain from doing
something related to land

74
Q

Termination of Real Covenant

A

a) Written release
b) Merger of benefited and burdened estates
c) Condemnation of burdened property

75
Q

Covenant Burden to Run with the Land

A 
Writing
Intent
Touches and Concerns
Horizontal and Vertical Privity
Notice
76
Q

Covenant Benefit to Run with the Land

A

Writing
Intent
Touches and Concerns
Vertical Privity

77
Q

Equitable Servitudes

A

A promise enforced in equity against successors through
injunctive relief (i.e., injunction is the remedy)
• Virtually the same as a covenant, except for the remedy
• Privity is not required to bind successors

78
Q

Creation Requirements Equitable Servitudes

A

Writing
Intent
Touches and Concerns
Notice

79
Q

Reciprocal Negative Servitudes

A

Lot owners in residential subdivisions may enforce restrictions on the use of property against other subdivision lot owners
• May be implied from a common development scheme of a residential subdivision but requires notice.

80
Q

Adverse Possession

A

A trespasser may acquire title to another’s property without

compensation by possessing the property for a specified period, in a manner conflicting with the true owner’s rights

81
Q

Requirements of Adverse Possession

A

Continuous for Statutory Period
Open and Notorious
Actual and Exclusive
Hostile

82
Q

AP Continuous for Statutory Period

A

Possession must be
similar to an ordinary owner’s use of the property
» Daily possession is not required if an ordinary user
would not use the property daily (e.g., winter cabin)

83
Q

AP Open and Notorious

A

Trespasser’s possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly
» Owner need not actually know of the trespasser’s use

84
Q

AP Actual and Exclusive

A

Must possess a reasonable portion of the property to the exclusion of the owner and the public

85
Q

AP Hostile

A

Possession must be without owner’s permission
» No knowledge or intent requirement (i.e., trespasser
need not intend to adversely possess)

86
Q

AP Color of Title

A

A claim of title to property not actually owned

• Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property

87
Q

AP Gov’t Land

A

Cannot be acquired through adverse possession

88
Q

AP SoL

A

Disability — SoL does not begin to run if the true owner was under some disability when the adverse possession began
» Disability acquired during adverse possession does not
toll SoL
• Future interests — SoL does not run against future interest
holders until the interest becomes possessory

89
Q

AP Tacking

A

Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors
» Must be successive — there cannot be gaps between
periods of adverse possession

90
Q

AP Concurrent Owners

A

Co-tenants may not adversely possess each others’ interests unless ouster has occurred

91
Q

Land Sale K

A

1) In writing
2) Signed by the parties to be bound
3) Articulate essential terms (e.g., consideration to be paid,
description of the land)

92
Q

Land Sale K Exception to SoF

A

Partial performance
• A land sale contract is outside the SoF if the buyer takes possession and either:
a) Pays all or part of the purchase price, or
b) Makes substantial improvements

93
Q

Equitable Conversion

A 
During escrow (after land sale contract but before deed delivery), buyer owns the real property, but seller owns personal property (the right to proceeds of the sale)
• Seller holds legal title in trust for buyer
94
Q

Land Sale Death of Party

A

If buyer or seller dies before closing, rights to the contract pass according to interests held
• Seller’s interest passes as personal property
» I.e., seller’s heirs can sue for sale proceeds
• Buyer’s interest passes as real property
» I.e., buyer’s heirs can sue for delivery

95
Q

Land Sale Risk of Loss

A

If property is destroyed before closing through no fault of the parties, buyer bears the risk of loss
• Parties can contract differently
• Seller must credit any insurance proceeds from loss against the purchase price

96
Q

Marketable Title

A

» Promise that title is free from risk of litigation
» Defects rendering title unmarketable:
a) Acquired by adverse possession
b) Encumbered by interests (e.g., servitude, mortgage,
future interest); but seller has the right to satisfy outstanding mortgages or liens with sale proceeds
c) Zoning ordinance violations existing at sale

97
Q

Disclose Facts

A

» Seller must not materially misrepresent facts or make false statements concerning the property
» Seller must disclose latent material defects
» Seller cannot limit liability through disclaimers
» New property — seller/builder is subject to an implied warranty of fitness/quality in construction

98
Q

Breach Before Closing

A

Buyer must notify seller before closing and give reasonable time for seller to cure defects
• If seller fails to cure, buyer can rescind, file for damages,
demand specific performance, or file suit to quiet title
• If buyer fails to notify seller before closing, contract merges with the deed and seller is not liable

99
Q

Deed Requirements

A

1) Lawfully executed — deed must be signed by grantor and must reasonably identify the parties and the land
2) Delivered — requires intent to be bound by the conveyance
• Title passes upon effective delivery; cannot be rescinded
• Present intent controls; physical transfer not required
• Acceptance — grantee must accept the deed;
acceptance is usually presumed upon valid delivery
• Rejection by grantee = ineffective delivery

100
Q

Types of Deeds

A

General Warranty
Special Warranty
Quitclaim

101
Q

General Warranty

A 
Includes all six covenants
Seisin
Right to Convey
Against Encumbrances
Quiet Enjoyment
Warranty
Further Assurances
102
Q

Special Warranty

A

Grantor assures that:

a) He has not conveyed the land to another
b) The land is free from encumbrances made by grantor

103
Q

Quitclaim Deed

A

No covenants included; grantor is not even

promising he has title to convey

104
Q

Present Covenants

A

(only breached at the time of delivery):

1) Seisin — grantor covenants that he is the rightful owner (i.e., has title, possession) and that deed covers described land
2) Right to convey — grantor covenants that he has the right to convey
3) Against encumbrances — grantor covenants that the land is free from encumbrances (e.g., servitudes, mortgages)

105
Q

Future Covenants

A

(only breached after delivery):

4) Quiet enjoyment — grantor covenants that grantee will not be disturbed by a third party’s claim of lawful title
5) Warranty — grantor agrees to defend against lawful claims of title by others
6) Further assurances — grantor promises to perform future acts reasonably necessary to perfect the title conveyed

106
Q

Bona Fide Purchaser

A

A BFP purchases property for value (i.e., gives pecuniary

consideration) without notice of a prior conveyance

107
Q

Notice BFP

A

Actual notice — actual knowledge, from any source
• Inquiry notice — what a reasonable inspection of the land would reveal (regardless of whether buyer actually inspects)
• Record notice — knowledge from a routine title search
» E.g., a previous conveyance properly recorded in the
chain of title (not a wild deed)

108
Q

Notice Recording Statutes

A

Subsequent BFP always prevails
• Whether or not she recorded first, a subsequent BFP always prevails over a prior grantee who fails to record
• Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof unless it is recorded”

109
Q

Race-Notice Recording Statutes

A

First subsequent BFP to record prevails
• Sample language: “No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded”

110
Q

Race Recording Statutes

A

First grantee to record prevails, regardless of
whether buyer is a BFP
• E.g., non-BFP purchaser who records first prevails over BFP
• Sample language: “No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded”

111
Q

Shelter Rule

A

One who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against, even if
the transferee had actual notice of a prior conveyance
• Protects donees, heirs, or devisees of BFPs who cannot
qualify as BFPs and would not otherwise receive protection
under notice or race-notice statutes

112
Q

Wild Deeds

A

A recorded deed unconnected to the chain of title (e.g., due to a clerk’s filing error)
• Record notice cannot be derived from a wild deed

113
Q

Estoppel by Deed

A

One who conveys land in which she has no interest is estopped from denying the validity of the conveyance
if she subsequently acquires the same interest
• Prevents one from fraudulently conveying land and later validly acquiring it (i.e., laundering title)

114
Q

Mortgage

A

A security interest in land that serves as collateral for the
repayment of a loan

115
Q

Parties’ Rights for Mortgages

A

Under majority theory (“Lien Theory”), mortgagor has title
and the right to possession absent foreclosure
• Mortgagee has a lien, conferring a right to take action for ownership of the land if the mortgagor defaults on the loan
• Under minority theory (“Title theory”), mortgagee has title
to the property during loan term, not mortgagor-borrower
» Note — unless instructed otherwise, assume lien
theory applies on the MBE

116
Q

Equitable Mortgage

A

Debtor gives creditor a deed to his land as collateral for the debt (instead of executing a mortgage)

117
Q

Mortgagee Transfer

A

Endorsing the mortgage note and delivering it to transferee

• Executing a separate assignment of the mortgage interest

118
Q

Foreclosure

A

Upon default, mortgagee can satisfy debt through foreclosure by judicial action
• Property is sold to satisfy the debt in whole or in part
• Deficiency judgment — if the debt exceeds sale proceeds, mortgagee can file suit against mortgagor for debt balance
• If proceeds exceed the debt balance, junior liens are paid in order of priority

119
Q

Redemption in Equity

A

At any time prior to the foreclosure sale, mortgagor can redeem the property by paying the amount due
• Some jurisdictions allow mortgagor, for a certain period, to buy back the property after foreclosure sale

120
Q

Mortgagee Right to Possession

A

Mortgagee’s right to possession prior to foreclosure depends on the jurisdiction:
• Lien theory — no right to possess prior to foreclosure
• Title theory — right to possess at any time upon demand

121
Q

Priority of Creditors

A

Recorded interests take priority in the order recorded

122
Q

Purchase Money Mortgage

A

Superior to all interests
» PMM = mortgage given in exchange for funds used to
buy the property

123
Q

Junior Interests

A

Terminated by foreclosure of a superior claim
• Foreclosure terminates all junior interests; junior interest
holders cannot look to the land to satisfy debts

124
Q

Senior Interests

A

Unaffected by junior interest foreclosures

• Buyer of foreclosed property takes it subject to senior interests

125
Q

Lateral Support

A

Ownership of land includes the right to have land supported in its natural state by adjoining land; landowners can be liable for excavations that cause damage to adjacent land

126
Q

Claims for Lateral Support

A

1) Negligence — if adjacent landowner’s excavation
causes damage to developed land, excavating owner is
only liable if he acted negligently
2) Strict liability — P must show his land would have
collapsed, even in its natural state, due to D’s excavations

127
Q

Subjacent Support

A

• Underground (subjacent) structures must support surface structures existing when the subjacent estate was created
» Subjacent owners are strictly liable for failure to
support pre-existing surface structures
• Negligence standard applies for subjacent structures
erected prior to surface structures

128
Q

Water Rights

A

Land bordering watercourses (natural or artificial bodies of

water, e.g., lakes and rivers) is governed by either the riparian doctrine or the prior appropriation doctrine

129
Q

Riparian Doctrine

A

Water belongs to those who own land bordering the watercourse.

130
Q

Water Rights Reasonable Use Theory

A

Riparian owners share
rights to reasonable use and are liable to other owners if
their use unreasonably interferes with other owners’ use
» Balance utility of use vs. gravity of harm

131
Q

Water Rights Natural Flow Theory

A

Riparian owners may be
enjoined for any use resulting in a substantial or material
reduction in others’ water quantity or quality

132
Q

Prior Appropriation Doctrine

A

Water rights are acquired by
actual use
• Priority of beneficial use determines rights to water

133
Q

Groundwater

A

Water beneath the surface not confined to a known channel (e.g., water in wells)
• Surface owner is entitled to make reasonable use of
groundwater, but must not be wasteful (majority)

134
Q

Surface Water

A

Water from rain, springs, or other runoff that has not yet reached a natural watercourse
• Landowners can generally use surface water as they
please, but may be liable for interrupting its flow

135
Q

Variance Zoning

A

Landowners can get govt. permission to be exempt or vary from literal restrictions of a zoning ordinance
• To qualify for a variance, a landowner must show:
1) Undue hardship, and
2) Variance will not negatively impact surrounding
property values

136
Q

Nonconforming Use Zoning

A

A once lawful existing use for property, now deemed nonconforming under new zoning laws
• Govt. cannot eliminate a use all at once (i.e., “zone out”) unless just compensation is paid

137
Q

Special Use Permit Zoning

A

Certain property uses require a special use permit even where zoning generally allows the type of use (e.g., hospitals and drive-thrus in commercial zoning districts)

MBE Bar Studies (8 decks)

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