Real Property Flashcards
What is Fee Simple Absolute
property owned by a single party with no co-owners
Tenancy in Common
Each co-owner has a distinct, proportionate, undivided interest in the property
The owners each have a share of ownership, expressed as a percentage.
Each owner can sell, devise, or encumber their share (and only their share)
No ROS
Joint Tenancy
Each “joint tenant” has a right of survivorship. “Last man standing” becomes sole owner of the property.
The joint tenants cannot devise their share in a will or trust, because of this survivorship. Their share disappears upon death and is absorbed by the surviving owners, until only one remains.
In FL, granting instrument must expressly refer to survivorship, or estate will default to tenancy in common.
Four Unities that Must Be Present to Create a Joint Tenancy
Each tenant’s interest must be exactly identical (i.e. four unities of time, title, interest, and possession must be present)
-possession - equal right to enjoy and possess the property
-interest: equal shares in the property
Time: must receive interest at same time
Title: must receive interest under same title
Tenancy by the Entirety
Married couples
ROS
In FL, property owned by both a husband and a wife is presumed to be held as tenants by the entirety, unless there is express language creating some other form of ownership.
Benefit: property is protected from creditors of each individual spouse. Only joint creditors (creditors of both spouses) can attack the property. Applies to any asset held as tenancy by entirety.
• Note: any asset can be owned as tenancy by entirety (art, furniture, bank accounts). Assets purchased during marriage are presumed to be owned as tenants by entirety, if they are owned by both spouses. Applies only to assets actually owned by both spouses. (different from marital asset).
Rights and Duties of Co-Owners
Each co-owner has:
- the right to possess all portions of the property but cannot have exclusive possession.
- operating expenses, rents and proceeds must be shared according to pro-rata interest.
- If one co-owner encumbers the property, he has only encumbered his interest in the property
Partition/Forced Sale:
Court may order partition of the property to satisfy creditor (i.e. physically divide into separate parcels) or force sale of the property and split the proceeds between the remaining owners and the creditor.
Exception to Need for Four Unities to Create a Joint Tenancy
An owner can create a joint tenancy in herself and another, even though unities of time and title are not satisfied (that is, no strawman is required)
Severance of Joint Tenancy
If any of the four unities (P.I.T.T.) are destroyed, the JT is terminated and the parties hold the property as TIC.
- most common when one JT transfers interest in property.
- Taking out a mortgage DOES NOT destroy JT, but only applies to JT’s half.
Is Florida a lien theory or title theory state?
Lien theory - mortgage is treated as a lien.
Is there a right of reimbursement from co-tenants for improvements or repair costs?
No - these costs are not required to be shared. However, you can get credit for repairs in partition action.
What is ouster?
If a co-tenant denies another cotenant access to the property
What are remedies of an ousted tenant?
- get an injunction granting access to the property
- recover damages for value while ousted.
Nature of Leasehold
T has present possessory interest and LL has future interest (e.g. reversion)
o Tenancy for Years
Has a beginning and end date; runs for a specified period of time and then terminates at end of specified term.
If period of over 1 year, it MUST be in writing (SoF).
LL reserves the right of reentry
o Periodic Tenancy
Has a start date and continues on successive periods (i.e. month-to-month, year-to-year) until it is terminated by proper notice. Until then, it is automatically renewed.
Created by express agreement or by implication (continued payment of rent after expiration of lease), or operation of law
FL: nonresidential periodic tenancy is considered tenancy at will
Required notice of termination for a periodic tenancy?
Year-to-year = 60 days;
quarterly = 30 days notice
month-to-month=15 days;
week-to-week=7 days
Tenancy at will
- by statute, applies when term of tenancy is unlimited, even if in a written lease.
- continues until it is terminated by either party
- In Fla. notice is required
- Ends at death of either party, or LL or T transfers his interest.
Required notice of termination of a Tenancy at will
For nonresidential -annual rent payments - 3 months notice -quarterly rent payments - 45 days notice monthly rent payments - 15 days weekly rent payments - 7 days
Does Florida recognize NON-Residential periodic tenancies?
No. A nonresidential tenancy with periodic rent payments and no fixed termination date is a tenancy at will.
If lessor holds over at end of term, and LL consents in writing, what type of tenancy is created?
Tenancy at will.
Tenancy at Sufferance
T wrongfully remains in possession after the expiration of a lawful tenancy,. Lasts only until LL evicts or elects to hold T to another term. Notice of termination is NOT required.
Special notice provisions that LL can include in residential lease regarding termination and vacating the premises
- LL can require 60 days notice of T’s plan to vacate
- LL must provide notice of 1. T’s obligation to provide notice and 2. the date the rental is termination. LL’s notice must come 15 days before T’s notice period begins. If T does not give at least 15 days notice prior to vacating, he can be held liable for another month’s rent.
Hold-over doctrine
If a T continues in possession after lease term ends, the LL may either evict the T in county court (no forcible entry) or bind the T to a new periodic tenancy. NO SELF HELP
Commercial = year-to-year if original lease term was over 1 year or month-to-month if for less than 1 year
Residential = month-to-month
** IF LL sends notice before the lease terminates that new lease will be at a higher rent, then T will be held to the new term at a higher rent.
When can LL get double rent from T
When T refuses to deliver possession to LL at end of lease term
Leases are governed by what principles
Contract principles of good faith and commercial reasonableness
- A party’s good faith cooperation is an implied condition precedent to performance of a contract
Landlord’s duties
- to deliver possession
- quiet enjoyment
- Implied warranty of habitability
LL’s Duty to Deliver Possession
LL has a duty to deliver actual possession at the beginning of the term. LL is in breach if he has not evicted a hold-over T by the beginning of the new T’s term.
LL’s Duty of Quiet Enjoyment
-prevents the LL from taking action that makes the premises wholly or partially unsuitable for their intended purposes, resulting in a constructive eviction.
Actual Eviction
occurs when the LL excludes T from entire premises; terminates T’s obligation to pay rent
Partial Eviction
LL physically excludes T from part, but T excused from paying rent (unless 3rd party evicted T)
Constructive Eviction
(i) LL does something (not third party) to (ii) make property uninhabitable and (iii) Tenant must vacate the premises within a reasonable time after giving notice.
In FL, T may terminate agreement if the premises are destroyed or damaged “so that the enjoyment of the premises is substantially impaired” and seek damages
Implied Warranty of Habitability
- implied in every RESIDENTIAL lease
- requires LL to maintain their property such that it is reasonably suitable for human needs.
- failure to comply with housing, building, health codes constitutes breach
- FL law- LL must maintain maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. And repair damages screens annually
What Should T do if LL fails to maintain the premises as required
If LL does not repair, T must give LL written notice specifying noncompliance
LL has 7 days to comply or T may: (1) move out and terminate the lease (constructive eviction); or (2) reduce and abate rent to fair market value in view of defects
Does T have duty to make repairs?
In FL, T has NO DUTY to make repairs, with exception of plumbing. The LL’s obligation to repair may be altered by lease in a single-family dwelling or duplex.
What can LL do if T stops paying rent?
If T stops paying rent, the LL cannot resort to self-help. LL may remove the T only by means of an action for possession filed in county court. In FL, LL may terminate lease 3 days after written demand of overdue rent.
If person purchases property at a foreclosure sale, may they terminate a lease?
Yes, by giving Tenant 30 days notice.
Ejectment
Legal remedy that LL can sometimes use to remove a person from wrongfully occupying the property (in CIRCUIT court)
What can LL do if T has abandoned the premises (or LL obtains a writ of possession, or T has surrendered possession)
LL can
- Treat the lease as terminated and take possession, thereby terminating any further liability of the T
- Retake possession, and hold T liable for difference between rent due from T, and what LL is able to relet it for in good faith
- Stand by and do nothing, and hold T liable for rent as it comes due.
- Charge liquidated damages or early termination fee as provided in lease (must be provided by separate addendum).
Assignment
Complete transfer of all remaining interests for the entire remaining term, except that T may reserve a right of reentry for breach. Transferee stands in shoes of T, and owes rent to LL. New T is primarily liable. T can still be held liable under contract theory unless there is a novation.
Subleases
Transfer of less than T’s remaining term or space. LL can only collect rent from T. The subtenant only has rent obligations to T
Security Deposit
- must be held in separate non-interest or interest bearing bearing account
- LL has 15 days to return security deposit if he does not intend to impose a claim on it
- LL has 30 days to send T written notice of intention to impose a claim, or she forfeits the right to do so.
- If T does not object w/in 15 days, LL can deduct the amount of the claim, and remit balance to T within 30 days of notice of claim.
Defenses to eviction or nonpayment action
- Defend on ground that LL violated duty to make repairs or comply with building codes (but T must have given prior notice to LL of noncompliance). This is a complete defense
- Raise any other legal or equitable defense, including defense of retaliatory conduct. LL must be given opportunity to cure before dismissal of action
In an action for possession, what does T need to do if it interposes any defense other than payment
T shall pay into the registry of the court the accrued rent as alleged in the complaint, and any rent that accrues during pendency as it is due
-Failure to do so within 5 days after service of process constitutes an absolute waiver of any defenses other than payment, and LL is entitled to immediate default judgment w/o further notice or hearing
Easement
non-possessory interest held by one person to use another’s land or restrict the use of another’s land
How is an express easement created?
By grant - in a writing that satisfies the SOF
By reservation - grantor conveys land but reserves an easement right in land for his own use
Dominant and servient tenement
Dominant - if beneficiary of easement is land
Servient - parcel subject to the easement
Types of easements
- Express - subject to SOF
- Implied (by neccesity; from existing use)
- Prescription
Implied Easement by Necessity - common law
Created when:
- A single tract of land is divided by a common owner and a piece of it is conveyed to another (UNITY OF TITLE);
- There is no reasonable way of entrance to, or exit from, the dominant tenement;
- The easement is reasonably necessary for beneficial use or enjoyment of the dominant tenement.
Florida Statutory Easement by Necessity
(1) there is no practicable route to enter on, or exit from, the dominant tenement due to adjacent lands, fencing, or other improvements; AND
(2) the dominant tenement is used for dwelling or agriculture purposes.
(3) UNITY OF TITLE is NOT required.
The servient tenement is entitled to compensation for the use of the easement.
Easement Implied from Existing Use
AKA Easement by Estoppel or Quasi easement
Implied if:
- Single tract of land is divided by common owner;
- Before division, owner used single tract of land as if there was an easement on it;
- After the division, the common owner continues to use the conveyed land in a continuous and apparent manner and
- Such use must be reasonably necessary for the owner’s use and enjoyment.
Implied Easement By Prescription - requirements
CHON!
Owner allows a trespassor to use his land continuously for 20 years. Use must be:
1. Hostile (w/o permission)
2. Open and notorious (owner could discover) and
3. Continuous for statutory period
(*Diff from AP, need not be exclusive use)
What is a Profit?
Right to enter into another’s land to remove a specific natural resource
-writing required
What is a license?
Revocable permission to use another’s land (e.g. ticket to a music concert).
- cannot be transferred, personal to licensee, revoked if you try to transfer
- can be revoked at any time
An invalid oral easement may be deemed a
license
When can a license be revoked?
At will, or upon grantor’s death
What is the scope of an easement?
Intended to meet the reasonable future needs of the dominant tenement holder
How is an easement terminated?
- Release - expressly by holder; must be in writing
- Merger - if holder acquires fee title to the underlying estate
- Abandonment - holder demonstrates an intent to never use it again
- Prescription - holder fails to protect against trespassors during statutory period
- Sale to BFP - easement terminates if owner sells property
- Estoppel - owner reasonably relies to his detriment on holder’s assurances that easement will no longer e used
- End of necessity - easement by necessity lasts only as long as easement is necessary.
Easement Appurtenant
- easement that benefits the dominant parcel
- there must be two tracts of land and it run’s with the holder’s land (i.e. dominant tenement)
Easement in Gross
-holder acquires a right to use the servient tenement independent of his possession of another tract of land.
Affirmative Easement
allows the holder to enter onto the servient tenement and make an affirmative use of it
Negative Easement
prevents the owner of servient tenement from engaging in specified act on the servient tenement (i.e. light, air, support, flow)
What is a real covenant?
- is a written promise concerning the use of the land that runs to successors of the promise.
- It typically requires the holder to either do something OR refrain from doing something to the land.
What type of damages can you get for violation of real covenant
Money damages
What type of damages can you get for violation of an equitable servitude
Equitable relief
Requirements for a real covenant to run with the land?
Privity
Intent (to bind successors)
Notice (successor must have actual or record notice) - FOR BURDEN ONLY
Touch and Concern (the land)
*must be in writing
If you are testing burden - horizontal privity + strict vertical privity
If you are testing benefit - relaxed vertical privity only, and no need for notice
Example of a real covenant
A conveys Greenacre to B pursuant to a deed that states:
B, his successors, heirs and assigns shall not construct any structure on Greenacre that exceeds 15 feet in height.
A-B deed record. B conveys to C. C builds a 20 foot house.
A can recover damages from C if the requirements of a real covenant are met
Equitable servitude
covenant that equity will enforce against the burdened land who has notice of covenant
Elements of Equitable Servitude
Intent (to bind successors)
Notice (successor must have actual, constr. or inquiry notice)
Touch and Concern (the land)
- does not need to be in writing
- no privity required
Relaxed vertical privity
The successor need only take an interest that is carved out of the original party’s estate (i.e., the successor can take less than the original party’s entire interest in the property – e.g., the successor takes a life estate from a fee simple).
Strict Vertical Privity
The successor must take the original party’s entire interest.
Horizontal Privity
The instrument used in the conveyance of the property between the original parties must contain the estate and the covenant (e.g., the deed contains the covenant).
-must be a conveyance, not just an agreement between parties.
DO HOA fees touch and concern land?
Modern approach - yes
When is the only time horizontal privity is required?
To test whether a burden runs with the land in enforcing a real covenant; also need strict vertical privity.
Transfer Fee covenants
covenant recorded against the title to real property that requires the payment of a transfer fee upon a subsequent transfer of an interest in property.
After July 1, 2008 - constitute an unreasonable restraint on alienation and DO NOT bind subsequent owners
Can a Homeowner’s Association Enforce A Restrictive covenant?
No, unless the HOA is a successor to the developer’s right of enforcement or the covenant was expressly created for its benefit.
While individual property owners have standing to enforce covenant, HOA does not
Implied reciprocal servitudes
-arise in planned subdivisions
-there must be INTENT to create a servitude on all plots
-the servitude must be negative e.g. promise to refrain from doing something) AND
the party against whom enforcement is sought must have ACTUAL, CONSTRUCTIVE, or INQUIRY notice
Fixture
-tangible personal property that is affixed to real property in such a manner that it is considered part of real property for determining ownership.
look @
-importance of fixture
-was it specially designed for real property
-how much damage to remove
Adverse Possession
-a way to establish title to someone else's property if possession is: Hostile (no consent) Open and Notorious (act as a true owner) Exclusive Continuous for 7 years in Florida
Tacking
An adverse possessor can tack on time of possession of a prior adverse possessor with whom he is in PRIVITY
Disability of Owner
Statutory period does not run against a true owner who had a disability (insanity, imprisonment, etc.) at the time adverse possession began
What if occupation arose “under color of title”, meaning that the occupation is founded on a written instrument (even if later declared invalid)
If occupied under color of title, property will be considered possessed if:
- it has been improved
- protected by a substantial enclosure
- Used for the supply of fuel or fencing timber for husbandry or for ordinary use of the occupant OR
- partly improved if part of a farm
For possession under color of title to be adverse, the instrument of conveyance must have been recorded and adequately describe the property
In Florida, can only claim adverse possession (not under color of title ) if
- property has been improved and protected by a substantial enclosure;
- AP paid TAXES on property for each year of the statutory period.
Requirements for a valid deed
- writing
- identify parties
- sufficiently describe property
- Be delivered (agent is ok, must be present intent) and accepted (presumed).
- Signed by grantor in presence of 2 subscribing W’s
General warranty deed
Greatest amount of protection - warrants against ALL defects, even if grantor didn’t cause them
Special warranty deed
Warrants against defects caused by grantor
Quitclaim deed
No warranties as to health of title
Present covenants in warranty deeds
Covenant of Seisin
Covenant of right to convey
Covenant against encumbrances
Covenants of Seisen
grantor has title and possession of estate she purports to convey at the time of grant
Covenant of Right to Convey
grantor has authority to convey title.
Covenant Against Encumbrances
Warrants that there are no undisclosed encumbrances on the property that could limit its value
Future covenants in warranty deeds
Covenant of quiet enjoyment
Covenant of Warranty
Covenant of Further Assurances
Covenant of quiet enjoyment
grantee will not be disturbed in possession by a 3rd claiming lawful title
Covenant of Warranty
grantor agrees to defend against REASONABLE claims of title by a 3rd party and compensate grantee for any loss sustained by the claim of superior title
Covenant for Further Assurances
grantor promises to do what is reasonably necessary to cure future problems with title
Recording Act in Florida
PURE NOTICE
Pure Notice Recording Act
A subsequent BFP or mortgagee prevails over a prior grantee who fails to record.
Requirements to be a BFP
To be a BFP, the subsequent party must give value and have no actual, inquiry, or constructive notice of the prior conveyance at the time of her transaction.
-Can be a BFP if taking by quitclaim
Actual Notice
the buyer subjectively knew about the claim
Constructive Notice
there is evidence of the claim in the public records (regardless of whether the buyer discovers that notice)
Inquiry Notice
although FL’s recording statute does not mandate inquiry notice, case law imposes a duty upon purchaser to physically examine the premises. Physical possession by one who is not the grantor has been held as constructive notice and visible easements have been construed as actual notice because inspection of the land is presumed.
When is there a presumption of LACK of notice?
unrecorded instrument
Who has the burden of proving actual notice
Claimant of the unrecorded instrument
Shelter Rule
A person who is transferred property from a BFP has the same statute protections as a BFP.
Does Florida’s recording act apply to leases?
Yes, if they are for more than 1 year
Does Florida’s recording act protect lien and judgment creditors?
yes
Judgment lien statute - 10 year
When does a Lis Pendens expire?
Generally one year after commencement of action, however it can be extended on reasonable notice and for good cause.
Implied warranty of Marketable Title
Every K in Florida contains an implied warranty of marketable title
Marketable title is one that is reasonably free from doubt
Equitable conversion
Once a K is signed, equity regards the BUYER as owner of property
If property is destroyed by fire before closing, risk of loss on BUYER
If buyer dies before closing, heir can enforce contract
Liability of Seller for Failure to Disclose Defects
Seller will be held liable if:
- seller knows or has reason to know of defect;
- defect isn’t obvious or apparent and seller realizes buyer won’t discover upon ordinary inspection
- defect is serious and would probably cause buyer to reconsider purchase
Active concealment
Seller is liable if he took active steps to conceal defect
Liability of seller for misrepresentation or fraud
Need proof that seller knowingly or recklessly made a misrepresentation of fact, that buyer relied, and that it materially affected value of property.
Lien theory in foreclosures
Fla is a lien theory state. A mortgage is only a lien on real property.
Bank holds a security interest only and borrower/mortgagor considered owner of land until foreclosure, therefore bank may not possess land before foreclosure to complete. Prior to foreclosure, borrow/mortgagor may redeem property by paying amount due (must pay all amounts due, not just mortgage).
Does Florida permit statutory redemption after foreclosure?
In FL, NO statutory redemption AFTER foreclosure. Bank can sue for deficiency judgment
How does Florida treat installment land contract?
in FL, treated same as mortgage (buyer has protections of mortgage law, and property can only be taken via judicial foreclosure)
How does Florida treat “as is” clauses in commercial contracts?
Sophisticated purchaser does not have a COA for fraud in an “as is” commercial contract if she had ample opportunity to conduct inspections and could have discovered defected through the exercise of ordinary diligence
If final maturity date of a lien of a mortgage is not ascertainable, how does Florida treat it?
It will have a life of 20 years from the date of the mortgage - this is for recording purposes
What is a due-on-sale clause?
-allow lender to demand full payment of mortgage if mortgagor transfers interest in property w/o lender’s consent
Does Florida have any restrictions on due-on-sale clauses?
No. Therefore, lender need not show impairment of security before enforcing due-on-sale clause
Surface waters - reasonable use theory
A possessor of land incurs liability only when his harmful interference with the flow of surface waters is unreasonable
Zoning
Inordinately Burdened Property
When gov’t action affecting property does not rise to the level of a taking, but inordinately burdens real property, or a vested right to use real property, the owner is entitled to relief.
Test to determine Inordinately Burdened Property
- Permanently unable to attain the reasonable expectation for the existing use (or vested right to a specific use) of the property OR
- left with existing or vested uses that are unreasonable in that property nears a disproportionate share of a burden imposed for a public good.
A temporary impact in effect for more than one year may qualify.
Zoning
States may enact statutes to reasonable control the use of the land for the protection of health, safety, morals, and welfare of citizens, based upon states’ police powers, limited Due Process and Equal Protection of 14th amendment.
Purchase Agreement
- Subject to the Statute of Frauds.
- Must contain essential terms: description of property, parties, and price.
- Should NOT be recorded.
- Does not require witnesses.
- Purchase options can also be integrated into other of contracts (like leases or easements), and are essentially purchase agreements, but give one party the right to purchase the property at a later time.
Two main exceptions to writing requirement for land sale contracts
- Partial performance if any 2 of the following 3:
- possession by purchaser;
- payment of all or part of purchase price AND/OR
- improvements to the land made by purchaser - Promissory estoppel/detrimental reliance
- where a party reasonably and forseeably relied on the land sale contract to his detriment and would suffer hardship if the contract were not enforced
Merger Doctrine
Land sale contract mergers into deed at closing. No longer enforceable unless covenant is also in deed
Types of present estates
Freehold - deed
Nonfreehold - leasing
Types of Freehold estates
-Fee simple
Life estate
Fee tail (“Body” ) - largely abolished
Fee simple absolute
-own the whole prroperty; it goes to your heirs
Types of defeasible fees
- subject to a condition subsequent
- determinable
- subject to an executory limitation
Words used in fee subject to a condition subsequent
- only if
- provided that
- but if
Determinable fee -words used
durational
- during
- while
- until
subject to an executory limitation
-any time a third party is involved
What does transferor retain when it grants a fee Subject to a condition subsequent
- right of reentry when the condition fails
- does not automatically vest, you have to take some action
What does transferor retain when it grants a life estate
-reversion - automatic
What does transferor retain when it grants a fee simple determinable
possibility of reverter -
-vests auomatically
What is an executory interest in a transferee
anything other than a remainder
Two types of executory interests
shifting or springing
Shifting executory interest
divests transferee upon happening of event
springing executory interest
divests transferor upon happening of event
What is a remainder
future interest that is capable of becoming possessory upon the natural termination of a prior estate
- life state
- term of years
- fee tail
Types of remainders
- contingent
- vested
- —indefeasible
- —subject to open
- —subject to divestment
Contingent remainder
where beneficiaries are unascertainable or subject to a condition precedent
Indefeasible vested remainder
100% certain
Vested remainder subject to open
certain to occur but class may enlarge
Vested remainder subject to divestment
certain to occur but may be lost upon the happening of a condition subsequent
Condition precedent
-an event that must occur before the remainder can become possessory
Rule Against Perpetuities applies to what interests
- Executory Interests
- vested remainders subject to open
- contingent remainders
Florida statute limits duration of reverters or forfeiture provisions to ___ years from the date of the deed conveying the realty
21 years
Does RAP apply to rights of first refusal
No
Florida Uniform Statutory RAP
-adopts a 90 year alternate vesting period
A non-vested property interest (real or personal) is invalud unless
1. when the interest is created it is certain to vest or fail within life in being plus 21 years or
2. it actually vests or fails w/in 90 years after its creation.
Trust - 360 years
Remedy for active concealment or fraud in land sale contract
Recission
Is an easement in gross transferable?
No, it is personal to the holder
If easements are created in instrument other than deed, what are writing req’ts
-signed in presence of 2 witnesses
An action for deficiency judgment must be filed within ___________
1 year of certificate of title being issued
Lost, stolen or destroyed note
Must include with complaint an affidavit setting forth all endorsements, assignments and facts and that P is entitled to enforce the lost note P may be required to provide adequate protection to the payee in the form of an indemnification, bond, or letter of credit from a bank
Riparian doctrine - water courses (streams, rivers , lakes)
Water belongs to those who own the land bordering the water.
What rights does a riparian owner have to use the water
(applies to groundwater, watercourses and surface waters
Reasonable use - one owner’s use is not enjoinable unless it substantially interferes with the use of other riparian owners.
utility of use v. gravity of harm
natural uses prevail over artificial uses
Prior appropriation doctrine
Individuals can acquire rights in water by actual use. If there is a decrease in flow, priority is accorded in terms of time of appropriation
Rights to airspace
Right to airspace above a parcel is not exclusive, but owner is entitled to freedom from excessive noise
When are zoning ordinances generally invalid?
If they have no reasonable relation to the public welfare, are too restrictive, are too discriminatory, or violate due process.
Rights of life estate
Entitled to ordinary uses and profits of land but cannot do anything to damage the interest of the remainder men
What can a future interest holder do if life estate injures her interest
Sue for damages or to enjoin such acts, and collect if she spends money to perform life estate’s obligations
When can a life tenant exploit natural resources?
Only where (i) necessary for repair/maintenance; (ii)land is suitable only for such use (iii) permitted by grantor
What is a life state obligated to do
- preserve land and structures in a reasonable state of repair
- pay interest on mtges (not principal)
- pay assessments for public improvements of short duration
- Duty is limited to extend of income from property (or its reasonable rental value if no income)
Can a life tenant demolish or alter existing buildings (ameliorative waste)
Yes, s/l/a
FMV of future interests is not diminished AND
1. remainder men do not object OR
2. Substantial and permanent change in neighborhood conditions have deprived property in its current form of usefulness.
Rule in Dumpor’s case
It states that once a landlord has consented to an assignment of a tenant’s interest in a leasehold estate, he implicitly consents to all future assignments by the tenant.
Profit in gross
A profit in gross can be assigned or otherwise transferred by its owner. Courts will construe a profit as being in gross unless the profit is expressly designated as being appurtenant. Therefore, profits by prescription will virtually always be profits in gross. Like a commercial easement in gross, a profit in gross is completely alienable. Profits can also be exclusive (guaranteeing the owner of the profit that no other person will be given the right to collect the specified resources on the land).
Does misuse terminate an easement?
No, owner must seek injunction
When does a license become irrevocable?
- Estoppel - licensee invests substantial money or labor
2. Licensed coupled with an interest (apples example)
Profits are subject to the rules for
Easements
If borrower transfers property and doesn’t pay off mortgage, does he remain liable on mortgage?
Yes, unless lender releases him from his obligation
If transferee ASSUMES mortgage, who is liable?
Transferee is primarily liable and transferor is secondarily liable
If transferee takes title SUBJECT TO mortgage, who is liable?
Transferor is the only one personally liable, but can still foreclose
