Real Property Flashcards
What are the four basic ways property can be transferred (i.e., “alienated”)?
Sale
Gift
Devise (will)
Intestate succession (will-less)
What is the default/presumed estate, and what does it mean exactly?
Fee simple: the largest possessory estate.
Goes on FOR EV ER
How does one create a fee simple?
Magic words = to X and his/her heirs
But even just “to X” is enough.
If ambiguous, creates a fee simple.
What’s the difference between a fee simple defeasible and a fee simple absolute?
Defeasible fees can also last forever, but they may be terminated.
What are the three types of fee simple defeasible?
Fee Simple Determinable: durational
Fee Simple Subject to Condition Subsequent
Fee Simple Subject to Executory Interest
What is a fee simple determinable?
Limited by specific durational language
E.g., O conveys B to A “SO LONG AS”/”WHILE”/”DURING” its use as a farm.
As soon as the time period ends, fee simple ends.
What is a fee simple subject to condition subsequent?
Limited by specific conditional language. RETURNS TO GRANTOR
E.g., BUT IF, PROVIDED THAT, ON THE CONDITION THAT
Focus on language to the grantor.
What is a fee simple subject to executory interest?
Ends upon the happening of an event and the future interest will vest in a third party.
Executory interest belongs to third party.
What are the three future interests that can associated with defeasible fees?
What’s the difference?
Possibility of reverter: future interest held by grantor after a fee simple DETERMINABLE.
Right of entry (aka power of termination): future interest held by grantor following a fee simple SUBJECT TO CONDITION SUBSEQUENT.
Possibility of reverter vest automatically after the durational period ends, while a right of entry doesn’t vest automatically, it must be reclaimed.
Also executory interest, held in a third party
What is a life estate, what creates one, and when does it end?
A life estate lasts for the duration of the measuring life, and ends upon that person’s death. Cannot be willed or or given away by succession (because it ends at death!).
“For life”.
What are the two options for a future interest after a life estate, and what’s the difference?
Reversion: when the fee simple returns (reverts) to the grantor after the life estate ends.
Remainder: when possession of the land goes to a third party (transferee) after the life estate ends.
What is waste? What are the three kinds?
Waste comes into play when more than one party has an interest in the same piece of real property (e.g., hazardous dumping).
1) Affirmative waste: caused by voluntary conduct that decreases value
2) Permissive waste: caused by neglect toward property which causes a decrease in value
3) Ameliorative waste: change in use of property that increases value
To what kind of a remainder does the RAP generally only apply?
Contingent remainders, not vested remainders.
What makes a remainder vested? And why’s that important?
1) Given to an ascertained (i.e., identifiable) grantee, AND
2) NOT subject to a condition precedent
If either of those is not met, it’s contingent and thus likely subject to the RAP.
Most importantly, if it’s vested, the interest can pass to the holder’s heirs upon the holder’s death.
When is a class gift “subject to open”?
When 1) vested remainder in a class gift; and 2) full class membership is unknown; and 3) at least one person in the class is vested.
When does a class gift “close”?
When all members of the class are identified.
Does the RAP apply to a vested remainder subject to open?
Yes, unless the rule of convenience applies, which closes the class when any member of the class becomes entitled to immediate possession.
What is the doctrine of worthier title?
Prevents against remainders in a grantor’s heirs. Instead of a remainder, presumes a reversion to the grantor.
What is the rule in Shelley’s Case?
Prevents against remainders in a grantee’s heirs. Instead, would create a fee simple in the grantee.
What are the two kinds of executory interests?
Springing EI: divests the grantor (2 parties, typically)
Shifting EI: divests a prior grantee (3 parties, typically)
What is the goal of the RAP? What is the period?
Testing for certainty! Like a SOL for contingent future interests. A life plus 21 years.
What are the three steps of applying the RAP?
1) When: when the interests are created?
2) What: are the interests subject to RAP?
3) Who: is there a validating life?
In applying RAP, when could the interests be created?
Inter vivos (created at time of grant), or
Devise (will) (created at testator’s death)
Which interests are subject to RAP?
Contingent remainders
Executory interests
Class gifts (subject to open, not closed)
In applying RAP, what constitutes a validating life?
Must have been alive when interest created;
Must vest within the perpetuities period (life plus 21 years)
Can validate own interest;
Without validating life, interest is no good.
How does RAP apply to class gifts? What are the exceptions?
ALL OR NOTHING RULE: If the gift to any member of the class is void under RAP, then the gift is void as to ALL MEMBERS of the class.
Exceptions: transfers of a specific dollar amount to each class member; and transfers to a subclass that vests at a specific time (e.g., “to the children of B, and upon the death of each, to that child’s issue”)
What are the exceptions to RAP?
Charities: charity to charity gifts are exempt
Option: RAP does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property
Option: RAP does not apply to an option (or right of first refusal) in a commercial transaction.
What is the most common alternative approach to RAP?
The “wait and see” approach: wait and see if an interest subject to RAP vests within the perpetuities period
What is cy pres?
Equitable doctrine that allows a court to reform a transfer to avoid RAP.
What is a concurrent estate? What’s the basic rule of a concurrent estate?
Ownership or possession of real property by two or more people simultaneously.
Basic rule: concurrent owners each have right to use or possess the WHOLE of the property*
*Unless contracted otherwise
What are the three kinds of concurrent estate?
Tenancy in common
Joint tenancy
Tenancy by entirety
What is a tenancy in common?
The default concurrent interest.
Concurrent owners have separate but undivided interests in property.
No right of survivorship (can freely transfer property)
What is a joint tenancy? What is required to create one?
Has right of survivorship: surviving joint tenant(s) automatically take the deceased tenant’s interest.
Requirements: clear expression of intent PLUS survivorship language.
PLUS four unities (PITT)
Possession: equal right to possess whole of property
Interest: equal share of the same type of interest
Time: received at same time
Title: joint tenants must receive their interests in the same instrument of title.
NB: if one is lost, JT is severed.
How is a joint tenancy severed?
What is the effect of inter vivos transfer?
Mortgages?
Leases?
Can be severed if any of the four unities are destroyed.
Inter vivos transfer will destroy/sever right of survivorship and convert into tenancy in common (NB: conveyance by one of three + joint tenants does not destroy it for others)
Mortgages: most jx follow a lien theory (does not destroy JT), but some do title theory (severs, TIC)
Leases: some say it severes, some say it’s a temporary suspension
What is a tenancy by the entirety? Reqs?
Joint tenancy between married people.
has a right of survivorship.
Tenants cannot alienate/encumber shares without consent of spouse.
Marriage is fifth unity. “tenants by entirety, with a right of survivorship”
How much of the property do concurrent owners have a right to possess?
Concurrent owners have a right to possess ALL of the property, regardless of share and type of co-tenancy.
What is ouster? What are the available remedies for ouster?
Ouster is when a co-tenant in possession denies another co-tenant access to property.
Get an injunction;
Recover damages for value of use while co-tenant was unable to access property
How does third-party rent get divided among co-owners?
By ownership interests, obvi
How are operating expenses split between co-owners?
Necessary charges (e.g., taxes, mortgage interest payments) are divided based on ownership.
Cotenant can collect contribution from others when he pays excess of his share of operating expenses.
How are repairs treated in concurrent ownership situations?
No right to reimbursement for necessary repairs, but can get credit in a partition action.
How are improvements treated in concurrent ownership scenarios?
No right to reimbursement for improvements, but can get credit in a partition action.
What is partition?
To whom is it available?
Unilateral, equitable remedy, available to all holders of tenancy in common or joint tenancy (not tenants by entirety).
What are the two kinds of partition? Which is preferred? What does it take to get the non preferred partition?
Physical division (partition in kind) is preferred.
Partition by sale will be ordered if the physical partition is (1) not practical, (2) not fair to all parties.
Can cotenants agree not to partition?
Yes, and such an agreement is enforceable if (1) agreement is clear and (2) time limitation is reasonable
Who is and is not covered by the Fair Housing Act?
Covered: multi-family residential housing
Not covered: single-family housing sold/rented without a broker; owner-occupied buildings with four or fewer living units (“ms murphy’s boarding house”); religious organizations and private clubs
What is required to prove a Fair Housing Act violation?
Act: Refusal to rent/sell/finance a dwelling OR requiring different rents OR falsely denying that a unit is available OR providing different services to facilities OR stating a discriminatory preference in an advertisement
Intent: disparate treatment (intent) or impact (effect)
Causation: must be linked to protected basis
What is the basic rule in determining a conflict of law problem regarding a piece of property?
Exceptions?
Basic rule: controlling law is based upon where property is located
Ignore it when:
- instrument designates an applicable jurisdiction
- in marriage cases, specifically w/r/t classifying marital v. separate property (domicile of party may override law of situs)
- mortgage cases, where mortgage docs require repayment to be made in another state
What are the four types of tenancies?
Tenancy for years
Periodic tenancy
Tenancy at will
Tenancy at sufferance
What is a tenancy for years?
How is it created?
How is it terminated?
Measured by a fixed amount of time
Created by agreement (must be in writing if over one year, because SOF)
Terminates automatically upon expiration of term, no notice required.
Can be terminated before term is over if:
- tenant surrenders lease, or
- material breach of lease by tenant or landlord
What is a periodic tenancy?
How is it created?
How is it terminated?
Repetitive and ongoing for a set period of time (e.g., month to month)
Must have intent to create periodic tenancy (express or implied)
Terminated: notice before the start of the last term (effective obn last day of period)
- old approach: six month notice
- new approach: shorter, like one month’s notice
What is a tenancy at will?
How is it created?
How is it terminated?
May be terminated by tenant or LL at any time for any reason
Created by express agreement or implication
Terminated by either party, without notice
What happens in a tenancy at will if the agreement gives power of termination only to one party?
If the agreement gives power of termination only to landlord, then it’s implied that the tenant also how that right.
If it gives only the tenant that right, it’s only the tenant, the landlord doesn’t get that right.
What happens if a landlord or tenant dies?
It terminates a tenancy at will, but not a tenancy for years or a periodic tenancy.
What is a tenancy at sufferance?
How is it created?
How is it terminated?
Created when a tenant holds over after the lease ends.
Tenant owes LL reasonable value of her use as well as reasonably foreseeable special damages.
Created by action of tenant alone (not agreement, like at will)
Terminated by:
1) tenant voluntarily leaves
2) LL evicts tenant
3) LL re-rents to tenant
What are the two basic duties of a tenant?
Pay rent
Avoid waste
When is the duty to pay rent suspended?
Premises are destroyed (not by tenant)
LL completely/partially evicts tenant (partially = part of property)
LL materially breaches the lease
What are the two main implied duties of the LL?
Implied Covenant of Quiet Enjoyment
Implied Warranty of Habitability
What is the Implied Covenant of Quiet Enjoyment?
Tenant can withhold rent when LL makes premises WHOLLY or SUBSTANTIALLY unsuitable for intended purpose.
Tenant must be constructively evicted in order to withhold rent
What are the four elements of constructive eviction?
Premises were unusable for their intended purposes (breach of CQE)
Tenant notifies LL of problem
LL does not correct problem
Tenant vacates premises AFTER a reasonable amount of time has passed (for LL to fix problem)
What is the implied warranty of habitability?
To what does it apply?
What can tenant do if LL is in breach of IWH?
Obligation of LL to maintain property such that it’s suitable for residential use, specifically that it’s okay for tenant’s health and safety.
Residential only, not commercial.
Refuse to pay rent; remedy defect and offset costs against rent; or defend against eviction.
When can the implied warranty of habitability be waived?
What constitutes a violation of the IWH?
Never can be waived!!
Typically failure to comply with housing codes.
If a tenant chooses to withhold rent due to a violation of the IWH, what must he do? Must he leave?
(1) notify LL of problem and (2) give LL reasonable opportunity to correct problem.
Does not have to vacate.
What is the duty to avoid waste?
How can you get it in your lease?
Who has the duty to repair?
Tenant has duty not to commit affirmative (voluntary) or permissive (neglectful) waste (damage).
It is a background rule, does not need to be expressed.
LL is presumed to be responsible for repairs in residential lease. Tenant must notify LL of needed repairs. LL can place duty on tenant in commercial lease.
What is the LL’s duty to mitigate damages?
Majority rule: LL must make REASONABLE efforts to re-rent the property
- means treating the property as if it were vacant stock
- if LL does not do this, tenant is relieved from rent paying
- if LL does this, LL is entitled to difference between original rent and rent received from replacement tenant
- LL does not have to accept an unacceptable replacement
Minority rule: no duty to mitigate (more common in cases involving commercial property)
What is the landlord’s tort liability to invitees, licensees, and foreseeable trespassers?
Under common law: responsible for latent (hidden) defects about which the tenant has not been warned; for faulty repairs; and for injuries caused by negligence in common areas
Under modern trend: general duty of reasonable care
What’s the difference between an assignment and a sublet?
Why does this matter?
Assignment: complete transfer of remaining term
Sublet: transfer for less than the entire duration of the lease
In an assignment, the LL can recover rent from the tenant or the subsequent tenant. In a sublease, the LL can collect rent from the tenant and the tenant only
What happens if a lease is silent on the issue of assignment/sublease?
What if it requires permission but does not say the standard?
A tenant may assign or sublet freely.
If permission is required but no standard is named: majority says LL can only deny for a “commercially reasonable reason.” Minority rule is complete discretion.
What are the requirements for the statute of frauds in a land sale contract?
writing
signed by party to be charged
include essential terms:
- parties
- description of the property
- price and payment info
What are the two exceptions to the statute of frauds regarding a land sale?
Part performance
detrimental reliance
What can constitute part performance in a land sale?
typically two or more of:
- payment of all or part of purchase price
- possession by purchaser
- improvements by purchaser
What is detrimental reliance again?
Reasonably relied on the K and would suffer hardship if K were not enforced.
What does the implied covenant of marketable title guarantee?
What happens if there is not marketable title?
That the title is free from an unreasonable risk of litigation (i.e., marketable title)
E.g., adverse possession not quieted, covenant, easement, mortgage, zoning violation
Defects in title must be cured/fixed before closing
What is the standard to determine whether title is unmarketable?
A reasonable buyer
What is the buyer’s remedy if the seller cannot deliver marketable title
Rescission of the K
What happens if there is a delay in the closing of a land sale?
Unless the parties or contract say otherwise, time is NOT of the essence.
Failure to close by the date may be a breach, not grounds for rescission.
Specific performance still available
What is the implied warranty of fitness or suitability?
How does one bring a suit based on it?
Applies to defects in new construction
In most jx, both initial and subsequent homeowners can recover damages for a shitty made house.
Suit must be brought within a reasonable time after discovery of the defect
What duty does the seller have to disclose defects?
What about an “as is” disclaimer?
Must disclose all known, physical, and material defects.
material must substantially affect value of home, health and safety of its occupants, or desirability of home
“as is” disclaimers will not satisfy the duty
What are the remedies available to a seller on buyer’s breach?
The remedies available to buyer on seller’s breach?
Available to seller:
- Damages: diff between K price and market price
- Rescission: seller can sell to someone else
- Specific performance
Available to buyer:
- damages: diff between K price and market value on date of breach
- *but if seller breaches but acts in good faith, only out of pocket expenses
- rescission: get payments back, kill K
- specific performance
Who bears risk of loss if there’s damage to/destruction of property after a land sale K but before closing?
Majority rule: buyer
Minority: seller
Can government property be adversely possessed?
Nope! That would lead to ruin
What are the four elements of adverse possession?
Continuous for the statutory period
Open and notorious
Hostile
Exclusive
Is the continuous requirement for adverse possession literal?
No, seasonal or infrequent use may suffice if use is consistent with the type of property (e.g., vacation home, farm)
Can multiple adverse possessors combine their time possessing a property for it to be “continuous”?
Yes, one adverse possessor can “tack” on her predecessor’s time IF they are in privity (i.e., there was an exchange)
What makes an adverse possessor’s possession of a property “open and notorious”?
Use that would put a reasonable true owner on notice of the adverse use.
What does it mean for an adverse possessor’s use to be “hostile”? Is this subjective or objective?
Adverse to owner’s interest: a claim of competing title. In most jx, the possessor’s state of mind is ignored.
What is constructive possession?
When an adverse possessor THINKS he’s possessing an area because of an invalid instrument (like a fraudulent deed), he is in constructive possession of whatever land the deed says, even if he’s only possessing part of it.
What is required for a deed to be valid?
Delivery and acceptance
What is the controlling question to determine whether a deed has been delivered?
Whether the grantor had the present intent to transfer the property.
For a deed to be valid, must it be delivered physically?
No! as long as present intent is clear, delivery not need be physical
Can a deed be properly delivered to an agent?
Yes
When is a deed considered accepted?
Acceptance is generally presumed, provided the transfer is for value.
What can and can’t a broker do?
They cannot practice law.
Can: prepare a K of sale.
Cannot: draft a legal document
Key is: is there the exercise of legal discretion?
What must go in a deed?
Parties
Signed by grantor
Words of transfer (granting clause)
Sufficient description of the property
Does the description of a property in a deed have to be a legal description?
Can the description be based on monuments or physical attributes of the property?
NO!
YES!
Can extrinsic evidence be admitted to clarify an ambiguous description of a property in a deed?
YES!
Is the grantee required to sign a deed for it to be valid?
Nope, only grantor
To be valid, must the deed be notarized or witnessed?
No, just signed by the grantor
What happens if a signature on a deed is forged?
Deed is void, even if the purchaser is a Bona Fide Purchaser.
Can an agent sign a deed instead of the grantor?
Yes, but must follow the equal dignities rule: if agent is required to sign, then the agency relationship must be created in writing.
Does recording affect the validity of a deed?
NO! It’s about notice, not validity.
What is the common law recording rule?
First in time, first in right: 1st grantee to receive a deed wins.
NB: Baseline rule, always a statute on top of this
Who is and is not protected by recording statutes?
Protected: subsequent purchasers/acquirers
NOT protected/NOT covered: gifted; willed; intestacy
What are the three kinds of notice of a prior interest on a property?
Actual: real, personal knowledge of prior interests
Constructive: recorded prior interest
Inquiry: when reasonable investigation would have disclosed existence of prior claims (e.g., dude on the land; mentioned interest)
What are the three types of recording statutes?
What do they mean?
What language goes with each?
Race statutes: first to record wins, regardless of notice (“first recorded”; “first to record”)
Notice statutes: subsequent purchaser wins if WITHOUT notice of prior, unrecorded conveyance (“in good faith”; “without notice”)
Race-notice statutes: BOTH no notice AND records first (“in good faith/without notice” PLUS “first recorded”)
What is the shelter rule?
A person who takes from a bona fide purchaser protected by recording act has same rights as her grantor.
E.g., if second subsequent purchaser has notice of prior interest but first subsequent purchaser did not, new purchaser is okay under a notice statute (he is “sheltered” behind his grantor’s rights)
What is estoppel by deed?
If a grantor conveys land he does not owe, and then later acquires title to it, he cannot try to repossess the land on the grounds that he did not own it at time of conveyance.
What are the three types of deeds, in order from greatest to least protection to the grantee?
General warranty deed: warrants title against all defects
Special warranty deed: against all defects caused by grantor only
Quitclaim deed: no warranties as to title
What are the six implied covenants in a general warranty deed?
Present covenants (breached at time of conveyance):
1) Covenant of seisin: deed describes land in question
2) right to convey: grantor has right to convey property
3) against encumbrances: no undisclosed encumbrances on property
Future covenants (breached after conveyance):
4) quiet enjoyment: grantee’s possession won’t be disturbed by third-party claim
5) warranty: grantor will defend against future claims of title by a third party
6) further assurances: grantor promises to fix future title problems
What is the guiding principle in the interpretation of a will?
The testator’s intent
What is an heir, legally?
What’s difference between heir and devisee?
One who takes a decedent’s intestate estate (i.e., survivor of a dead person who DID NOT LEAVE A WILL)
Devisee is someone who takes a devise by will.
What happens if a person dies without a will?
Her estate is distributed by intestate succession (default plan written by legislature).
What’s the difference between a decedent and a testator?
Decedent: dead guy
Testator: dead guy who left a will
What happens if a decedent dies without a will and without heirs?
Escheat: his property goes to the state
What is ademption?
What are the rules associated?
A devise of property that fails (“adeems”) because it is not in the testator’s estate at death.
Basic rule: gift fails and intended recipient gets nothing.
Satisfaction: if testator gives recipient gift while alive, then he keeps it
What happens if the intended beneficiary predeceases the testator?
Lapse: the gift fails and falls to residuary gift (leftover)
BUT, every state has an anti-lapse statute that would send it to beneficiary’s children, IF beneficiary was a relative of testator.
Who is the trustee, the settlor, and the beneficiary of a trust?
Settlor: who created trust
Trustee: owns legal title (controls) of trust
Beneficiary: holds equitable title (has standing to enforce trust)
What are the two parts of a mortgage?
Note: borrower’s promise to repay loan/debt
Mortgage: instrument providing security for the note
What’s the difference between the mortgagor and mortgagee?
Mortgagor = borrower (buyer)
Mortgagee = lender (bank)
What’s the difference between a purchase money mortgage and a future advance mortgage?
Purchase money mortgage = loan for purpose of buying property
Future advance mortgage = a second mortgage; line of credit used for home equity
What is the effect of a mortgage on a joint tenancy?
In majority of jx, it’s a lien that doesn’t sever the joint tenancy (“lien state”)
In minority, it does sever and coverts the joint into a tenancy in common (title state)
What is a deed of trust?
Alt to mortgage: like a mortgage but uses a trustee to hold title for benefit of lender
What’s an installment land K?
What happens if a buyer breaches an installment land K?
Alt to mortgage: Seller finances purchase. Seller retains title until final payment.
Upon breach, traditional rule is that seller keeps payments and property.
Modern approaches give right of redemption, or treat it as a mortgage, or require restitution.
What is an Absolute deed?
Alt to mortgage: borrower transfers deed to property instead of a security interest
When a borrower transfers the property, who is liable for the mortgage?
The borrower, UNLESS:
1) lender releases mortgagor, or
2) lender modifies transferee’s (new owner’s) obligation
If a deed is silent/ambiguous as to liability, who is liable?
Assumption is that the buyer has taken title SUBJECT TO the mortgage, so he’s NOT personally liable, only the original mortgagor is.
When can the mortgagee/lender take possession of a foreclosing property?
Lien theory state: not until foreclosure is complete
Title theory state: lender technically has right to possess property at any time
Intermediate title theory state: mortgagor retains title until default, at which point lender can take possession
What is the equitable right of redemption?
A mortgagor (borrower) can reclaim title and prevent foreclosure by paying the debt in full BEFORE the foreclosure sale.
How do you determine who gets paid first when there are multiple interests on a property?
Senior interests (made before interest being foreclosed) survive, while junior interests (made after) don’t.
Survivors are satisfied chronologically. (with exceptions)
What are the exceptions to the general priorities rule of satisfying interests after foreclosure?
Purchase-money mortgage exception: primary mortgage beats more senior liens
Recording act exception: recorded may beat a senior, unrecorded mortgage under statute
Subordination agreements
Mortgage modifications
Future-advance mortgages
After-acquired property (clearly stated)
When do easements appurtenant and easements in gross transfer?
Easements appurtenant (run with the land) always go with the land
Easements in gross (benefit the holder personally) typically are transferable when there is intent for them to be transferable
Can negative easements (right to prevent something) be implied?
No, only express
Can an express easement be oral?
No, it’s subject to the SOF, and so
must be in writing.
What are the four kinds of implied easements?
Necessity
Implication (prior use)
Prescription
Estoppel
When is there an implied easement by necessity?
dominant and servient estates were owned in common by one person, AND
when severed, one property became virtually useless (landlocked) without an easement
When does an implied easement by necessity end?
Whenever it is no longer strictly necessary
What is required to have an implied easement by implication (prior use)?
Common ownership (one owner)
Pre-severance, owner uses land AS IF there’s an easement on it
Post-severance: use CONTINUES and is APPARENT
Necessary: use must be reasonably necessary to dominant estate’s use/enjoyment
NB: less tough standard than easement by necessity
What is necessary to have an implied easement by prescription?
Adverse possession of an easement! Same:
continuous for long enough;
open and notorious
hostile
DOES NOT HAVE TO BE EXCLUSIVE THO, OBVI
What is required to have an implied easement by estoppel?
Permission
Reliance
- good faith
- improvements, e.g.
Permission withdrawn
If reliance was DETRIMENTAL to seeker of easement, other neighbor is estopped from withdrawing
Can an express easement be changed?
Yes, based on a reasonable + foreseeable standard
How can an easement be terminated?
Release in writing
Merger of land
Abandonment (non-use PLUS act of intent)
Prescription (like adverse possession of the easement back)
Estoppel (detrimental reliance on a statement)
End of necessity (for easement by necessity)
What are the five general requirements for a real covenant to run with the land?
Writing
Intent of original parties that it run
Touch and concern the land
Notice (actual or constructive or inquiry)
Privity (what type depends on benefit or burden)
What is the difference between a real covenant that is a benefit and that is a burden?
Benefit: ability to enforce the covenant
Burden: being bound by it
What privity is required for a burden to run? (name and define)
Horizontal privity and strict vertical privity
Horizontal = original parties conveyed property with the covenant
Strict vertical = successor took original party’s ENTIRE interest
What privity is required for a benefit to run? (name and define)
only relaxed vertical privity (no horizontal privity needed)
relaxed vertical privity = successor took an interest that is carved out of the original estate
What is the remedy for breach of a real covenant?
Damages, of course!
What’s the difference between an equitable servitude and a covenant?
There’s not much difference, they do the same thing.
ES has an easier standard (no privity required) and the typical remedy is injunctive relief instead of damages.
What is required to have an equitable servitude bind a successor?
Writing (unless implied reciprocal)
Intended to run with the land
Touch and concern the land
Successor must have notice
NO PRIVITY requirement
What is required for there to be an implied reciprocal servitude?
basically always a planned community
Developer intended to create covenant on ALL PLOTS
promises are reciprocal (benefits and burdens EACH and EVERY plot equally)
must be negative (restriction on owner’s use)
successor must be on notice (often inquiry)
must be a common plan or scheme
How can an equitable servitude terminate?
Same ways as easements (release, merger, etc) AND changed circumstances doctrine:
-restriction no longer makes sense due to DRASTIC changes in surrounding area
(ask if there’s still a benefit)
When can a trespasser keep or get value for an improvement he made to property?
When he acted in good faith
What is the standard for getting a zoning variance?
Compliance would create unnecessary HARDSHIP
Hardship arises from UNIQUE circumstances
Owner DID NOT CREATE hardship
Variance is in keeping w/overall PURPOSE of ordinance
Variance won’t cause substantial HARM to general welfare
