Real Property Flashcards
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
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)
3
Q
What are the different types of defeasible fees?
A
- Fee simple determinable
- Fee simple subject to a condition subsequent
- Fee simple subject to an executor limitation
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)
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)
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)
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)
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
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
10
Q
In the following examples, what do A and O have? Why?
- “To A so long as she does not attempt to sell.”
- “To A so long as she does not attempt to sell until 2016, when coulds on the title will be resolved.”
A
- A has a fee simple absolute; O has nothing.
- Absolute restraints on alienation are void.
- A has a fee simple determinable; O has a possibility of reverter.
- Resonable, time-limited restraints on alienable are valid.
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
12
Q
What are the two important rules regarding life estates?
A
- The life tenant is entitled to ordinary uses and profits from the land
- The life tenant cannot commit waste
13
Q
What are the different types of waste?
A
-
Affirmative waste
- Willful destruction that causes a drop in value
-
Permissive waste (i.e., neglect)
- Neglect that allowed the land to fall into disrepair
-
Ameliorative waste
- Actions that enhance the property’s value
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
- Life tenant may consume or exploit if:
- Repairs
- Life tenant may consume or exploit if:
- For purporses of repairs or maintenance
- Life tenant may consume or exploit if:
- Grant
- Life tenant may consume or exploit if:
- Granted the right to do so
- Life tenant may consume or exploit if:
- Exploitation
- Life tenant may consume or exploit if:
- The land is only suitable for exploitation (e.g., quarry)
- Life tenant may consume or exploit if:
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)
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
17
Q
What are the future interests capable of creation in the grantor?
Explain the accompanying present estates
A
- Possibility of reverter
- Accompanies fee simple determinable
- Right of entry/power of termination
- Accompanies fee simple subject to condition subsequent
- Reversion
- Accompanies any estate transfer of some lesser amount than what the grantor started with, other than those listed above
18
Q
What are the future interests capable of creation in transferees?
What are their sub-types?
A
- Vested remainder
- Indefeasibly vested remainder
- Vested remainder subject to complete defeasance
- Vested remainder subject to open
- Contingent remainder
- Executory interest
- Shifting executory interest
- Springing executory interest
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
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
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
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
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
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)
25
When is a vested remainder subject to complete defeasance?
When the remainderman's right to possession could be cut short by a _condition subsequent_
26
When is a vested remainder subject to open?
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_
27
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?
The rule of convenience
* A class is closed when _any member can demand possession_
28
What is a shifting executory interest?
What is a springing executory interest?
What do they follow?
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
29
What is the rule against perpetuities:
* At common law
* In Virginia
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
30
What is the four-step technique to evaluating RAP problems?
(Additional step for Virginia)
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
31
What future interests does the RAP apply to?
What future interest does the RAP not apply to?
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
32
How do you identify a measuring life for purposes of RAP?
The measuring life must be _grant-specific_
(i.e., the grant is specifically dependent on that life)
33
What are the two bright-line rules for RAP?
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)
34
Can a gift from one charity to another violate the RAP?
No
35
Reform of the RAP:
What is the "wait and see" or "second look" doctrine?
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_
36
Reform of the RAP:
What is the USRAP?
What does it add?
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)
37
What do both the "wait and see" doctrine and USRAP embrace?
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
38
What are the different forms of concurrent ownership (i.e., concurrent estates)?
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
39
What does right of survivorship mean?
What are its implications?
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_
40
How do you create a joint tenancy?
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
41
When would you use a straw?
How would you do it?
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
42
How do you sever a joint tenancy?
(SPAM)
* Sale
* Partition
* And
* Mortgage
43
When one member of a joint tenancy sells her interest, what happens?
Can she do so secretly?
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
44
At what point does a joint tenant's sale of her interest sever the joint tenancy as to her?
Why?
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_
45
What are the different ways in which a joint tenancy interest may be partitioned?
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)
46
What happens if a joint tenant executes a mortgage or lien on his share of the joint tenancy?
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_
47
How do you create a tenancy by the entirety?
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
48
In a tenancy by the entirety:
* What creditors can access it?
* When can the tenants convey?
* 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)
49
What are the three distinguishing features of a tenancy in common?
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
50
What are the rights and duties of co-tenants regarding possession?
Wrongful ouster
* A co-tenant who excludes another co-tenant (who, after all, has rights to possess the whole) has committed _wrongful ouster_
51
What are the rights and duties of co-tenants regarding rent from:
* Co-tenants in exclusive possession
* Third parties
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
52
What are the rights and duties of co-tenants regarding adverse possession?
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_
53
What are the rights and duties of co-tenants regarding carrying costs?
Each co-tenant is responsible for his pro rata share of carrying costs
E.g., taxes and mortgage interest
54
What are the rights and duties of co-tenants regarding repairs?
A co-tenant who makes _reasonably necessary_ repairs enjoys a right of _contribution_, provided he _told the others of the need_
55
What are the rights and duties of co-tenants regarding improvements?
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
56
What are the rights and duties of co-tenants regarding waste?
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)
57
What are the different leasehold (i.e., non-freehold) estates?
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_
58
What are the distinguishing characteristics of a tenancy for years?
* Creation
* If \> 1 year, _must be in writing_
* Termination
* Because it is for a fixed period, _no notice required_
59
What are the distinguishing characteristics of a periodic tenancy?
* 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
60
What are the distinguishing characteristics of the tenancy at will?
* 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
61
What are the distinguishing characteristics of a tenancy at sufferance?
* Duration
* Lasts only until L either:
* _Evicts_ T
* Elects to hold T to a _new tenancy_
62
What are a tenant's duties?
1. T's liability to _third parties_
2. T's duty to _repair_
3. T's duty to _pay rent_
63
What is a tenant's liability to third parties?
* 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
64
What is a tenant's duty to repair?
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
65
What has a tenant done if she removes a fixture?
Committed voluntary waste
T must not remove a fixture, even if she installed it
FIXTURES PASS WITH OWNERSHIP OF THE LAND
66
What is a fixture?
What are some examples?
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
67
How do you determine if a tenant installation qualifies as a fixture?
* _Express agreement_ controls
* _Absent agreement_, an item is a fixture if:
* Removal will cause _substantial harm_ to the premises
68
What if a tenant breaches his duty to pay rent?
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)
69
What are a landlord's duties?
1. Duty to deliver _possession_
2. Implied covenant of _quiet enjoyment_
3. Implied warranty of _habitability_
4. Duty to avoid _retaliatory eviction_
70
What is the majority rule regarding a landlord's duty to deliver possession?
What is the minority rule?
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
71
What is the implied covenant of quiet enjoyment?
What types of leases does it apply to?
When is it breached?
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
72
What is constructive eviction?
("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
73
For purposes of the implied covenant of quiet enjoyment, is a landlord liable for the acts of other tenants?
Generally, no. Except:
* L must not permit a _nuisance_ on-site
* L must control _common areas_
74
What is the implied warranty of habitability?
What supplies the standard?
What are examples?
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
75
What is a tenante entitled to when his landlord breaches the implied warranty of habitability?
("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
76
What is a landlord's duty to avoid retaliatory eviction?
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
77
What is the difference between the assignment and the sublease?
Assignment
* T transfers his interest in _whole_
Sublease
* T transfers his interest in _part_
78
When can T transfer his interest in a lease?
Either
* In the absence of a _prohibition_ in the lease
* If T obtains _prior written approval_ based on a prohibition
79
Once L consents to one transfer by T (via assignment or sublease), can T make future transfers?
Yes, unless L _reserved the right to object_ in the future
80
If T1 assigns his interest in a lease to T2, what are the relationships between these parties and L?
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
81
What does privity of estate mean?
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
82
What does privity of contract mean?
Parties in privity of contract may be liable (possibly secondarily) for breaches of the contract (rather than mere breaches that run with the land)
83
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?
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)
84
If T1 subleases to T2, what is the relationship between L and T2? What about between L and T1?
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
Does a landlord have a duty to make the premises safe?
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
What are the different forms of servitude?
1. Affirmative Easements
2. Negative Easements
3. Real Covenants
4. Equitable Servitudes
5. Reciprocal Negative Servitudes
87
For an affirmative easement, what is/are the:
* Method of creation
* Parties bound
* Remedy
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
For a negative easement, what is/are the:
* Method of creation
* Parties bound
* Remedy
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
For a real covenant, what is/are the:
* Method of creation
* Parties bound
* Remedy
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
For an equitable servitude, what is/are the:
Method of creation
Parties bound
Remedy
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
For a reciprocal negative servitude, what is/are the:
* Method of creation
* Parties bound
* Remedy
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
What is an easement?
What are common examples?
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
What is the difference between:
Affirmative easement
Negative easement
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
In what categories are negative easements usually recognized?
(LASS)
* _Light_ (e.g., John Hancock building in Boston - servient tenement to Trinity Church)
* _Air_
* _Support_
* _Steamwater_ from an artificial flow
95
What is the difference between:
* Easement appurtenant
* Easement in gross
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
When can an easment appurtenant pass with a conveyance?
Conveyance of dominant tenement
* Always - i.e., automatic
Conveyance of servient tenement
* Always, unless new owner is:
* Bona fide purchaser
* Without notice
97
When is an affirmative easment created by grant?
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
When is an affirmative easement created by implication?
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
When is an affirmative easement created by necessity?
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
When is an easement created by prescription?
By satisfying the elements of adverse possession:
* **C**ontinuous use for statutory period
* **O**pen and notorious use
* **A**ctual use (but needs not be exclusive)
* **H**ostile 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
How is the scope of an easement determined?
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
How is an easement terminated?
("END CRAMP")
* **E**stoppel
* Servient owner changes his position in _reasonable reliance_ on easement owner's _assurances that the easement will not be enforced_
* **N**ecessity
* Easements created by necessity end as soon as the necessity ends (unless also created by grant)
* **D**estruction
* Destruction of the land other than by the willful conduct of the servient owner
* **C**ondemnation
* Condemnation of the servient estate by _eminent domain_ ends the easement
* **R**elease
* Easement holder gives servient owner a _written release_
* **A**bandonment
* 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
* **M**erger
* Title to the easement and title to the servient land become _vested in the same person_
* **P**rescription
* 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
What is a license?
A mere privilege to enter another's land for some delineated purpose
104
Do you need a writing to create a license?
No. They are not subject to the statute of frauds.
105
When can a license be revoked?
Anytime
Unless _estoppel_ applies
* Licensee must have invested:
* _Substantial money_, and/or
* _Substantial labor_
* In reasonable reliance of the license's continuation
106
What are the classic license cases?
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
What is the profit?
Entitles holder to enter servient land and _take from it_ either:
* Soil
* Some substance of the soil
Examples
* Minerals
* Timber
* Oil
108
What rules apply to the profit?
All the easement rules (e.g., creation, termination, etc.)
109
What is a covenant?
What distinguishes it from an easement?
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
What are the different types of covenants?
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
How do you know whether to treat something as:
Covenant
Equitable servitude
On the basis of the _remedy_ P seeks
* Money damages
* Covenant
* Injunction
* Equitable servitude
112
When does a covenant bind successors?
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
What does it mean for a covenant to touch and concern the land?
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
When do two parties have horizontal privity?
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
When do two parties have vertical privity?
When will it be absent?
Present
* When there is some _non-hostile nexus_ such as:
* Contract
* Devise
* Descent
Absent
* A party acquired his interest through _adverse possession_
116
What is an equitable servitude?
A promise, which equity will enforce against successors, that is accomanied by _injunctive relief_
117
What are the forms of notice that may potentially be imputed to a defendant in a reciprocal negative easement?
* **A**ctual notice
* **I**nquiry notice (i.e., should know from lay of land)
* **R**ecord notice
118
What is the court split regarding record notice?
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
What are the equitable defenses to enforcement of an equitagble servitude?
Changed conditions
* Must be:
* So pervasive that entire area has changed
* Insufficient:
* Mere pockets of limited change
120
What are the elements of adverse possession?
* **C**ontinuous uninterrupted possession for statutory period
* **O**pen and notorious possession like typical owner
* **A**ctual and exclusive possession
* **H**ostile possession
121
When determining adverse possession, what viewpoint do you use?
The _objective_ viewpoint.
The possessor's subjective state of mind is irrelevant
122
What is the concept of tacking with regard to adverse possession?
When does it apply?
When does it not apply?
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
When will a statute of limitations not run (i.e., be tolled) for purposes of adverse possession?
When the true owner is afflicated by a _disability_ at _the start of the adverse possession_
Disabilities include:
* Infancy
* Insanity
* Imprisonment
124
What is the process for every conveyance of land?
1. The _land contract_ (which lasts only until Step 2)
2. The _closing_, where the _deed_ is the operative document
125
What should you know about the land contract and the statute of frauds?
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
What happens if the amount of land recited in a land contract is more than the actual size of the parcel?
The purchasing party can move for _specific performance_ with a _pro rata reduction in price_
127
Who takes risk of loss when a land contract is signed?
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
What are the implied promises in every land contract?
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
What is the standard for marketable title?
Marketable title is title free from:
* Reasonable doubt
* Lawsuits
* Threats of litigation
130
Under what circumstances will title be rendered unmarketable?
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
What implied warranties are not present in a land contract?
* 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
What is the closing?
When the _deed_ passes legal title from seller to buyer
133
How does a deed pass legal title from seller to buyer?
It must be "LEAD"
* **L**awfully
* **E**xecuted
* **A**nd
* **D**elivered
134
What is required for a deed to be lawfully executed?
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
What is required for a deed to be delivered?
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
What would defeat the delivery requirement for a deed at closing?
The recipient _express rejection_ of the deed
137
What happens if a deed is transferred to a grantee with an oral condition?
Assuming the deed is _absolute_ on its face, the oral condition _falls out_.
It is not provable and delivery is complete.
138
How can escrow be used for delivery of a deed?
What is the advantage of it?
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
What are the different types of deeds?
1. Quitclaim
2. General warranty deed
3. Statutory special warranty deed
140
What is the quitclaim deed?
Think of Shaggy - i.e., "It wasn't me."
The quitclaim:
* Contains _no covenants_
* Does not even promise _marketable title_
141
What is the general warranty deed?
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
What is the distinction between present and future covenants?
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
What is the statutory special warranty deed?
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
What are the two bright-line rules regarding the property recording system?
1. _Notice_ jurisdiction
* Requires:
* Bona fide purchaser
* (But for Va. consider S. Ct. decision)
2. _Race-notice_ jurisdiction
* Requires:
* Bona fide purchaser
* Recording
145
Who do the recording acts protect?
* Bona fide purchaser
* Mortgagees
146
What is a bona fide purchaser?
Someone who buys property:
1. For _value_
2. Without _notice_ that someone else got it first
147
What meets the value requirement for a bona fide purchaser?
What does not?
Sufficient:
* All that is needed is _substantial pecuniary consideration_
Insufficient:
* Mere heir, devisee, or donee, unless _shelter rule_ applies
148
For purposes of the bona fide purchaser requirement, what are the forms of notice that a buyer could be charged with?
("AIR")
* **A**ctual notice
* **I**nquiry notice
* **R**ecord notice
149
What does inquiry notice mean?
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
What does record notice mean?
At the time the buyer takes, another party had **_properly_** recorded a deed on the property
The key is PROPERLY recorded
151
What recording system does Virginia use?
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
What is required by a notice statute?
What is required by a race-notice statute?
Notice
* Must be the last bona fide purchaser
Race-notice
* Must be a bona fide purchaser
* Who records before other bona fide purchasers
153
With regard to proper recording of a deed, what are the chain of title problems that often come up?
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
What is a mortgage?
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
Who is the mortgagor?
Who is the mortgagee?
Mortgagor - debtor
Mortgagee - creditor
156
What is a legal mortgage?
What is an equitable mortgage?
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
What type of evidence is admissible to establish an equitable mortgage?
Parole evidence, to show the parties' true intent
158
What if a mortgagee sells the property to a bona fide purchaser?
The _bona fide purchaser_ owns the land
The mortgagor's only recourse is to _sue the mortgagee_ for:
* Fraud, and
* The sale proceeds
159
Once a mortgage has been created, what are the parties' rights?
Unless and until foreclosure,
* Mortgagor
* Has title and the right to possess
* Mortgagee
* Has a lien
160
If the mortgagee properly transfers his note, what happens to the mortgage?
It follows
161
How does the mortgagee transfer his interest?
He can either:
1. _Endorse_ the note and _deliver_ it to the transferee
2. Execute a _separate document of assignment_
162
What is a holder in due course?
The _transferee_ of a mortgage who takes it _free of any personal defenses_ that could have been raised against the _original mortgagee_
163
How do you become a holder in due course?
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
What are the mortgagor's personal defenses?
Wrong fuel = "W FUEL"
* **W**aiver
* **F**raud in the inducement
* **U**nconscionability
* **E**stoppel
* **L**ack of consideration
165
What are the mortgagors real defenses?
These can still be asserted against a holder in due course:
MAD FIFI4
* **M**aterial **A**lteration
* **D**uress
* **F**raud **I**n the **F**actum
* **I**ncapacity
* **I**llegality
* **I**nfancy
* **I**nsolvency
166
What happens if a mortgagor sells property that is mortgaged?
The _lien stays_ on the land, so long as it was _properly recorded_
167
If a mortgagor sells the property that is mortgaged, who is personally liable on the mortgage? The mortgagor-seller, or the buyer?
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
What must the mortgagee due to foreclose?
What happens then?
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
Which liens will foreclosure terminate?
Which liens will foreclosure not terminate?
Foreclosure only terminates interests being foreclosed and any interests junior
It does not terminate senior interests
170
Who are necessary parties to a foreclosure action?
Who are not?
Necessary:
* The _mortgagor_
* Those with _interests junior to the foreclosing party_
Not necessary:
* Those with _interests senior to the foreclosing party_
171
What happens if a foreclosing party fails to join a necessary party?
The claims of the party that was not joined are _preserved_, which means that those mortgages remain on the land
172
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
The buyer should pay FMV less the value of the remaining liens so that he can pay those off after purchase
173
What is required for a creditor to get priority?
They must _record_ (if they don't they have no priority)
174
What is a purchase money mortgage?
What is unique about it?
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
What is a subornation agreement?
Why do creditors do them?
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
What is redemption in equity - i.e., equitable redemption?
How is it exercised?
Can it be waived?
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
What is statutory redemption?
How is it exercised?
Who gets possession during the period?
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
If land is improved by building and an adjacent landowner's excavation causes the improved land to cave, who is liable?
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
What are the major systems for determining the allocation of water in water-courses - e.g., streams, rivers, lakes?
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
How do you determine who has the right to water, regardless of whether the riparian or prior appropriation doctrine is used?
First in time, first in right
You can acquire the right merely by being the first to make any productive use of it
181
What is groundwater?
Who has the right to use it?
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
What are surface waters?
Who can divert it?
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
What are the rights of a possessor of land?
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
What is eminent domain?
* The _5th Amendment_ power
* To take _private property_
* For _public use_
* In exchange for _just compensation_
185
What are explicit takings?
What are implicit takings?
_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
What is the remedy for an implicit taking (i.e., regulatory taking)?
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
What is zoning?
Pursuant to its _police powers_, the government may enact statutes to _reasonably control land use_
188
What is a variance?
How is one obtained?
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
What is a nonconforming use?
Can it be eliminated?
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
What are exactions?
What is required for them to pass constitutional scrutiny?
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
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:
Permitted accessory use
192
Virginia follows the ____________________ theory of title, which means what?
Lien theory of title, under which a mortgagee may not take possession of land subject to a mortgage before foreclosure
193
To record a deed in Virginia, it must be either:
1. Acknowledged by the grantor
2. Proved by two witnesses
194
In which type of deed does a seller warrant only that she herself has done nothing to create a title defect?
Statutory special warranty deed
195
Under Virginia law, a deed that is defective may be either void or voidable. An example of a void deed is:
A deed to a _dead person_
196
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 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
Under Virginia law, what is the responsibility of a seller of one to four dwelling units
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
Under the implied covenant of marketable title:
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
In determining whether the “hostile” element of adverse possession has been satisfied, a court will consider whether:
A person is a family member
200
Under Virginia real property law, possession of the surface will not give title by adverse possession to the mineral rights underground:
If the mineral rights have been severed from the surface rights.
201
Under Virginia law, what is the time period for adverse possession?
Church property
* 25 years
All other property
* 15 years
202
Under Virginia real property law, a covenant not to compete:
Does not run with the land
(unlike the majority of jurisdictions in which it does)
203
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:
An _equitable easement_
(the majority of other jurisdictions would call this an _irrevocable license_)
204
In addition to the usual ways of terminating an easement, an easement will be terminated in Virginia if:
The original purpose for which the easement was created no longer exists.
205
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
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
Under the Virginia Residential Landlord and Tenant Act (VRLTA), a landlord may not require a security deposit in excess of ____________________ months’ periodic rent:
2 months
207
Under Virginia law, the Doctrine of Worthier Title (DOWT):
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
What is the rule of destruction?
Does it apply in Virginia?
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
Under Virginia law, does a surviving spouse have a right to the deceased's property?
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.
