Real Property Flashcards
(220 cards)
1
Q
freehold estates
A
- fee simple
- life estate
- fee tail
2
Q
fee simple absolute (FSA)
A
- potentially infinite duration
- must be fully alienable, no direct restraints on transfer of ownership
- any attempt to put a direct restraint on alienation is void and ignored (if a tries to sell farm, then to b)
- modern exception uphold the right of first refusal as a valid form of restriction on alienation
- creation: at common law “to A” was life estate not there is a presumption that “to A” or “to A and her heirs” creates a fee simple unless there is language with clear intent otherwise
3
Q
Fee tail
A
- at common law: a device to lock the property into the grantee’s family
- created by using very precise language “to A and the heirs of his body” or “ to A and his bodily heirs”
- modern presumption of FSA unless the bar exam asks you to apply common law rule
4
Q
life estate
A
may be expressly granted or implied
- life estate is never measured by time, ONLY measured by life
- implication “to A after the death of my wife, G”
5
Q
life estate pur autre vie
A
- measured by the life of another (to A for the life of B)
- at common law, if A dies first, seisin is found to be vacant and anybody can take
- modern rule: if A dies before the measuring life, the life estate passes to the estate of the deceased and continues until the measuring life dies
- if the measuring life dies first: the life estate terminates
6
Q
transfer of the life estate
A
can sell the life estate but only for the measuring life. if the life tenant dies before the measuring life dies, the estate passes to the estate of the life tenant and continues until the measuring life dies
7
Q
life estate and restraint on alienation
A
the modern rule allows provisions that terminate the life estate if the life tenant attempts to convey the life estate
8
Q
the law of waste
A
generally: the life tenant must maintain the estate
1. maintain expresses both a minimum and maximum that the life tenant can do to the land
three kinds of waste:
1. voluntary waste
2.permissive waste
3. ameliorative waste
9
Q
voluntary waste
A
- any affirmative action beyond the right of maintenance that causes harm to the premises
2, maintain means the life tenant may continue the normal use of the land - any change of use is voluntary waster for which the tenant may be liable to the holder of the future interest
- open mines doctrine: depletion of natural resource constitutes waste unless consumption of such resources constitutes the normal use of the land as in the care of a coal mine or a granite quarry (sale of harvestable crops is not waste)
10
Q
permissive waste
A
failure to maintain: tenant must do three things to avoid liability
1) repairs: life tenant has the obligation to make ordinary repairs but not to replace
- this is limited to the amount of rents and profits received form the land or reasonable rental value of the land if the tenant is not using it
- if the tenant is not using or receiving income-no repair obligation
2. taxes: tenant must pay all taxes on the property subject to the limitation of the amount or rent and profits received from the land
- the holder of a future interest on the land must ensure that taxes are paid becuause a tax sale will eliminate the future interest
3) mortgage debt: life tenant must pay interest on any mortgage indebtedness but not the principal. future interest holder pays the principal
4. insurance: life tenant does not have to insure the property but may do so
11
Q
ameliorative waste
A
- occurs when the life tenant alters the property substantially but the activity increases the value of the land
- if changed conditions have made the property generally worthless, then the life tenant can alter the property without incurring liability to the future interest holder
12
Q
seisin
A
- all freehold estates carry the concept of seisin
- the holder of seisin is the taxpayer
- at the moment that each and every conveyance is made, the law wants to know who has seisin at all times and under all possible circumstances
13
Q
future interest
A
- the interest exists now but possession will not take place (if at all) until sometime in the future
- becomes possessory later
14
Q
future interest retained by the grantor
A
reversion, possibility of reverter, and right of entry
15
Q
furutre interests given to the grantee
A
remainder and exclusionary interest
16
Q
reversion
A
a reversion in the grantor arises whenever the grantor conveys away less than the full durational estate that the Grantor had
O to A for life-A has a life estate and O has a reversion
17
Q
possibility of reverter
A
whenever the grantor conveys fee simple determinable, the grantor retains a possiblity of reverter
ex. o to A and his heirs for so long as no liquor is consumed on the premises
Magic words:
so long as
while
during
until
18
Q
right of re-entry or power of termination
A
whenever a grantor conveys a fee simple on condition subsequent, grantor keeps a right of entry
1. title does not go back to the grantor automatically when the condition is broken
2. instead o must do something to retake the property
3. title stays with the grantee until the grantor exercises his right of entry
4. have to expressly reserve the right to reenter
ex. o to A and his heirs provided however that if liquor is ever consumed on the premises then O or O’s heirs shall have the right to re-enter and retake the premises
Magic Words:
provided however,
but if
on condition that
19
Q
transferability of future interests
A
all future interests in the Grantor are vested so they are not subject to rule against perpetuitites, they are freely transferable on death and reversion, possibility or reverter but not right of entry is freely transferable inter vivos
20
Q
vested remainder in the grantee
A
- a future interest in a third party grantee that come naturally and immediately on the termination of the preceding estate
- either vested or contingent
- vested if nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate
ex. o to A for life and then to B and heirs
21
Q
contingent remainder in grantee
A
- if there is a condition that the grantee must satisfy before his interest will become possessory, then contingent remainder
ex. o to A for life then to B and his heirs if B survives A - at common law, if the condition was not met, the property goes back to grantor by reversion
- modern: property goes by to grantor in FS subject to an executory interest and B holds the executory interest
22
Q
class gifts: vested remainder subject to open
A
- where the remainder interest is conveyed to a group of unnamed persons whose members are not yet fully known, the class remains open to allow for future persons who qualify as members by satisfying the class description
- ex. o to a for life then to A’s children
23
Q
class gifts the time for vesting and the rule of convenience
A
- under the rule of convenience the class closes for a class gift whenever any class member is entitled to a distribution. this is a rule of construction not a rule of law
24
Q
executory interest
A
operates to cut short the state that comes before it, also called vested remainder subject to total divestment
- look for but if and then too
- punctuation rule: pay attention to punctuation to help determine if a contingency is made part of the fist estate or if it is made part of the gift over following the earlier estate
- ex. o to A so long as the property is used for residential purposed and if the property is ever used for other than residential purposes to B and heirs
25
future interests and the law of waste
1. executory interests do not have standing to sue for waste but remainders do
26
defeasible fees
1. fee simple determinable
2. fee simple subject to a condition subsequent
3. fee simple subject to an executory interest
27
the rule against perpetuities
no interest will be valid unless it must vest, if it is going to vest, within 21 years after the death of some life in being who was alive at the moment the conveyance was made
1. ALWAYS applies to executory interest and contingent remainders and vested remainder subject to open
2. ex. o to a and his heirs so long as no liquor is consumed on the premises and if liquor is ever consumed on the premises title shall go to b and his heirs (RAP applies and B's interest is voided)
3. if RAP applies, cross out language that violates the rule and see what is left
28
rule against perpetuities at time of conveyance
generally the validity of an interest if determined at the time of the conveyance and the interest creation.
2. if the transfer is by will, the RAP is as of the time of the testators death
3. if by deed: apply the RAP as of the time the deed takes effect
4. uniform statutory rule against perpetuities: many states have adopted this reform against RAP, provides for an alternative 90 year vesting period. thus it is a wait and see approach to determine if vesting actually occurs within 90 years
29
ohio RAP reform
1. wait and see statute-the validity of the interest following a life estate is determines on the basis of facts as they exist at the end of the life estate, not at the time of conveyance
2. cy pres- invalid interest is reformed to carry out the grantor's intent as nearly as possible
30
perpetuities savings clause
1. language expressly included in order to not violate the RAP and make sure that vesting will occur in a certain time period
2. ex. o to a for so long as no liquor is consumed on premises, if liquor is consumed within the lifetime of a or b or within 21 years after the death of the survivor of a and b, then in that event title shall pass to b and his heirs
31
the right of first refusal and the RAP
contingent interest in property such as options and rights of first refusal violate the RAP if they could possible be exercised outside the time period of the rule
32
the charity to charity exception RAP
if both transferees are charities, the RAP does not apply
33
class gifts and RAP
1. age contingency beyond 21 years in a open class is not valid because of RAP however if a class gift has an age contingency of 21 or younger RAP is not violated because any child born at the time the conveyance is made will reach the contingent age before RAP
2. if the RAP operates to void a gift to any member of the class, all of the class members lose
34
fertile octogenarian rule
presumes that a woman can have another child regardless of her age or medical condition
35
joint tenancy: four unities
All must be present for a joint tenancy to be created:
1. Unity of Time: all have to have vested at the same time
2. Unity of title: the grant to all joint tenants must be by the same instrument
3. Unity of interest: all joint tenants must take the same kind and same amount of interest
4. Unity of possession: must have identical rights of possession
36
Language of conveyance and creating a joint tenancy
1. Generally: the language of the conveyance must clearly reflect the grantor's intent to create a joint tenancy
2. when the intent is unclear, the modern rule is to presume a tenancy in common
37
magic words for creating a joint tenancy
1. as joint tenants
| 2. right of survivorship
38
joint tenancy carries a right of survivorship t/f
true
39
right of partition and joint tenancy
1. voluntary termination of the joint tenancy
2. if any of the joint tenants wants to be relieved of common ownership he can do so by asking that the property be partitioned
3. partitioning can occur by voluntary agreement or by a judicial action
40
severance of joint tenancy
1. involuntary termination of joint tenancy
2. occurs when any of the 4 unities are disturbed
3. cannot be severed by will
4. can be severed by a contract of sale: severance occurs on the day the contract was signed not closing because of the law of equitable conversion
41
mortgage and severance of joint tenancy
1. Lien theory: there is no severance of the joint tenancy because the lien attached to the title but the title is not transferred
2. title theory: minority rule: there is a severance of the joint tenancy beucase when the mortgage is executed the title passes from the mortgagor to the mortgagee
42
creditors sale and interest in joint tenancy
there is no severance until the judicial sale takes place, if the debtor dies before the sale there is no severance and title passes to surviving joint tenants
43
tenancy in common
1. no unities are required except the unity of possession
2. each co tenant is entitled to possess the whole of the property
3. this is the default tenancy
4. the estate is freely alienable so each tenant can do what they want
5. any tenant can force a partition
6. there is no right of survivorship
44
tenancy by the entirety
1. 4 unities plus marriage
| 2. at common law, any grant of a concurrent estate to a husband and wife would give rise to a tenancy by the entirety
45
termination of the tenancy by the entirety
1. death
2. mutual agreement in writing
3. divorce
4. execution by a joint creditor
46
possession and co owners
each co tenant has the right to possess the whole of the property
47
accountability to other so tenants
generally each co tenant for not have to account for the other for his share of profits with four exceptions
1. outster: accounting is required if one co tenant is either keeping another co tenant off the property or claiming a right of exclusive possession
2. agreement to share
3. lease of property by a co-tenant to a third party
4. depletion of natural resources
48
contribution
1. concerns the right of one co-tenant to force the other co tenant to pay their fair share of some expenditure on the property
2. the right depends on what type of expenditure was made:
improvements: no: any monies expended for non necessary improvements are not subject to contribution (b/c can be recouped later at the sale of property)
repairs?: yes if necessary
mortgage?: yes, required for mortgage on the property that has been signed by cotenants
taxes: yes required toward all governmentally imposed obligations such as property taxes or assessments for curbs, streets, sewers etc
49
non-freehold estates
1. estate of years or tenancy for years
2. periodic tenancy
3. tenancy at will
4. tenancy at sufferance
50
tenancy for years
1. must specify a beginning and end date, it is measured by a fixed period of time
2. statute of frauds: if over 1 year, must be in writing
3. notice requirement: no notice is required to terminate
51
periodic tenancy
1. repeating
2. the estate rolls on and on until one party gives the other proper notice
3. creation by express agreement, implication or operation of law
4. implication: lease is silent as to duration it is presumed to be a periodic tenancy measured by the rent payment
5. operation of law: statute of frauds failure or holdover tenant
52
holdover tenant periodic tenancy
1. a tenant who remains on the property after the lease has expired
2. when the landlord accepts a rent check from a holdover, a periodic tenancy is created by operation of law for the period specified in the rent check
53
termination of a periodic tenancy
1. proper notice is required
2. must satisfy two independent criteria: enough time and effective date
3. enough time: the amount of tim equal in length of the priod of the tenancy except in year to year which requires only 6 months
4. effective date: has to specified in the notice and must be at the end of the period of the tenancy
5. private agreement can modify the notice requirement
54
tenancy at will
1. either party can terminate at any time
2. notice: may be terminated by either party giving the other notice and a reasonable time to vacate the leased premises
3. termination by operation of law: death of either party, waste by the tenant, assignment by the tenant, transfer of title by by landlord and lease by landlord to a third party
55
tenancy at sufferance
1. refers to the bare possession that a tenant has of the property when that tenant wrongfully holds over
2. the landlord has two options: sue to evict or impose a new periodic tenancy
56
tenancy at sufferance: landlord sues to evict
sue in trespass and treat as a wrongdoer and to recover the damages
57
tenancy at sufferance: landlord imposes a new periodic tenancy
1. if the old expire tenancy was for less than a year they new tenancy will be measured by the period covered by the rent payment. in the case of residential property, the new period is usually month to month
2. in commercial property, if the old expired tenancy was for a year or more, the new periodic tenancy will be year to year
3. the landlord may not impose a new periodic tenancy if it is not reasonable under the circumstances (tenants moving truck is a few hours late)
58
raised rent situation
if the landlord gives the tenant notice of the increase in rent before the expiration of the lease then the landlord may properly demand payment of the higher rent amount if the tenant holds over
59
duties of the tenant
1. duty to pay rent
| 2. duty to maintain premises
60
tenant duty to maintain premises: lease is silent
1. tenant is still subject to common law duty not to commit waste
2. under the modern majority view if the leased premises are detroyed wtihout the tenant;s fault the tenant generally will be given the option to terminate the lease
61
duty to maintain premises: lease includes tenant covenant to repair
1. an express covenant by a tenant to repair and maintain the leased premises makes that tenant an absolute insurer of the property with the exception that at common law the tenant was not responsible for the ordinary wear and tear
2. the modern majority view is that once the tenant covenants to repair the tenant is liable for everything including ordinary wear and tear unless the parties agreement expressly excludes this responsibility from the tenants repair covenant
3. under the modern majority view if the leased premises are destoryed without the tenants fault, the tenant will generally not be required to rebuild the structure-even if the lease includes the tenant;s covenant to repair unless the lease expressly includes this type of repair
62
landlord remedies when the tenant fails to pay rent
1. at common law, the landlord could sue for damages, however, the landlord was allowed to collect only the amount in arrears and could not terminate the lease
2. today however all states allow the landlord to sue for damages and terminate the lease thereby evicting the tenant from the property
3. ohio law: ohio law requires the landlord to provide a three day notice of eviction to the tenant
63
landlord remedy: tenant unjustifiably abandons:
landlord has two options:
1. LL accepts the tenants offer of abandonment
2. LL relents premises, holding the tenant liable for any deficiencies
64
landlord accepts the offer of abandonment
can treat the abandonment as the tenants offer of surrender of the leasehold
1. landlord accepts by retaking the the premises and thereby terminating the lease, tenant has no further rent obligations
65
landlord relents premises holding the tenant liable for any deficiency
1. the LL may elect to re-rent the premises on the tenants account in order to mitigate damages and hold the tenant liable for any deficiecy
2. at common law-landlord had no duty to mitigate
3. modern majority rule: landlord must make a reasonable effort to relet the property in order to mitigate the damages
4. if the rent that the landlord can get is less than what the defaulting tenant had originally promised to pay, the original tenant will be liable for any deficiency
66
duty of Landlord
1. duty to deliver the possession of the leased premises
2. duty regarding condition (implied warranty of habitability)
3. implied covenant of quiet enjoyment
67
duty to deliver possession of the leased premises
the landlord must deliver the possession of the leased premises to the tenant when the lease begins if landlord cannot deliver actual possession then he is in breach of the lease
68
implied warranty of habitability
1. Common law rule: landlord has no duty to deliver the leased premises in a habitable condition-lease involves transfer of possessory interest in the property
2. Modern rule: implied warranty of fitness or habitability: applies only to residential property
3. obligates the landlord to provide and to maintain leased premises that are reasonably suited for residential use (generally basic human habitation)
4. ohio follows this rule
5. retalitory eviction: if the tenant lawfully reports landlord for housing code violations the landlord is barred from penalizing the tenant
69
tenant remedies for landlord breach of implied habitability
1. tenant can move out and end the lease
2. tenant can stay on the property and sue for damages
3. growing number of states allow the tenant to make reasonable repairs and deduct this cost from future rent payment (repair and deduct)
70
implied covenant of quiet enjoyment
1. general rule: every lease includes the landlord's implied promise not to interfere with the tenant's quiet enjoyment of the leased premises
2. included in every lease, residential commercial or otherwise
3. the landlord may breach in one of three ways:
total eviction, partial eviction, or constructive eviction
71
breach the implied covenant of quiet enjoyment: total eviction
total eviction: landlord enters apartment and throws the tenant off the premises
72
breach of implied covenant of quiet enjoyment: partial eviction
partial eviction:
1) occurs where the landlord physically excludes the tenant from only some portion of the leased property (a direct physical interference)
Ex. if the landlord changes the locks on the basement and tells the tenant he is storing things there...tenant can stay on what is left and stay for free
2. a partial eviction may occur where some third party, who holds paramount title, retakes the property and physically excludes the tenant from that portion of the leased premises
Generally, when the tentant is partially evicted by someone other than the LL the rent is proportionately reduced to reflect the amount taken
73
constructive eviction
1. does not involve actual physical exclusion
2. when the LL fails to provide some service that the LL is obligates to provide and that failure makes the property uninhabitable
74
three requirements for constructive eviction
1. it must be the landlord's failure to provide a service, not a third party
2. there must be a substantial interference with the tenant's quiet enjoyment of the property (invasion of cockroaches)
3. tenant must abandon within a reasonable time
75
assignment of a lease
can transfer the entire remaining interest
76
sublease
transfer only a part of the remaining lease and the property reverts back to the original tenant
77
assignment: liability of successive assignees for payment of rent
1. a tenant is liable to the landlord for rent if there is either privity of contract or privity of estate
2. privity of estate only exists between the present landlord and the present tenant
3. privity of contract exists only when there is an agreement between the landlord and the particular tenant from whom the landlord seeks to recover the rent
78
assignee;s liability on the other lease covenants
1. covenant to pay rent always runs with the land and therefore is enforceable based on either privity of estate or contract
2. as to other covenants contained in the lease: generally, the covenant will run with the land if it touches and concerns the land
3. use of common sense approach for touch and concern test: does the covenant make the land more valuable or more useful?
79
liability of successive landlords on the lease
1. the original LL continues to be liable to the original tenant because of privity of contract
2. successor landlord may be liable to original tenant if there is either privity of contract or privity if estate AND the lease covenant runs with the land3. the successive landlord must expressly assume the obligation and agree to be bound by the terms of the lease
80
sublease: subtenant's liability for rent
1. general rule: landlord can recover rent from anyone with whom he is in privity
2. in the case of a sublease the sub-leasor keeps the estate and it is not transferred to the subleasee so there is no privity of estate or contract between the LL and the subleasee
81
nonassignment clauses in a lease
1. says that the tenant may not assign or sublet without the express permission or consent of the landlord
2. validity of the non-assignment clause
even though a form or restraint on alienation, all courts find it valid and enforceable but it will be strictly construed (nonassignment will not include sublease and vice versa)
3. violation of the nonassignment or non sub lease merely makes the attempted transfer voidable at the option of the landlord
82
effect of landlordS consent to assignment
permission given once means that the non assignment or non sublease is waived altogether unless the landlord states otherwise at the time of first permission
83
partial condemnation of leasehold interest
if only a portion of the property is taken, the tenants have to continue to pay rent for that portion of the property taken by the state but the tenant will get an amount equal to the rent that was to be paid over the remainder of the lease for that portion of the property from the condemnation award
84
full condemnation of the leasehold
1. the tenant do not have to continue to pay rent because complete taking extinguishes the lease and the tenant is excused from any further rent
2. the tenant will share in the condemnation award only to the extent tha the fair rental value of the property exceeds the amount of rent due under the lease
85
tort liability of landlord and tenant
Common law: no duty imposed on the landlord to tenant for injuries sustained on the premises during the period of the lease
the landlord can covenant to repair as part of the lease term
there are 5 exceptions to the common law
86
5 exceptions to common law landlord tort liability
1. latent defect
2. short term lease of a furnished dwelling
3. common passageways under the landlords control or dominion
4. negligent repairs undertaken by the landlord
5. public use exception
87
latent defects
1. landlord is under a duty to disclose latent defect which the landlord either knows or has reason to know of
2. a latent defect is one that a tenant does not know of and a reasonable person in the tenant's position would not discover
2. the landlord must disclose the defect but is under no duty to repair
88
short term lease of a furnished dwelling
the rental a furnished dwelling for a short term makes the landlord liable for defect even if the landlord neither knows or has reason to know of such defects
short term is 3 months or less
89
common passageways under the landlord's control or dominion
landlord liable is he failed to exercise reasonable care in the common area
90
negligent repairs undertaken by the landlord
the landlords conduct in making the earlier repairs as creating the deceptive appearance of safety and the court treats this as negligence
91
public use exception for landlord
three requirements:
1. landlord must know or should know of major defects
2. landlord must know or should know tenant will not fix the defect and
3. landlord must know or should know that the public will be using the premises
92
tenant's tort liability
the tenant is always liable to a third party invitee for negligent failure to correct dangerous conditions on the leased premises, regardless of whether the landlord may be held liable as well
93
fixtures
1. generally fixtures become party of the real property
2. something is treated as a fixture if the one doing the installing intend that the item will remain with the property
3. express intent requires an agreement between the parties
94
factors to determine intent to leave a fixture
1. degree of attachment (the more that is dont to attach, the more likely a fixture)
2. general custom
3. degree of harm to premises on removal (tend to favor tenants on this point
4. trade fixtures: can always be removed
95
when to remove an item not considered a fixture
1. tenant must remove before the tenant vacates the end of the lease
2. seller must remove the item beofre closing or the seller loses the chattel
96
Easement
a non-possessory interest in land involving a right to use the land
97
easement appurtenant
1. an easement that directly benefits the use and enjoyment of a specific parcel of land
2. the burdened property is referred to as the servient estate
3. the benefitted property is referred to as the dominant estate
98
easement in gross
1. there is no dominant estate becuase there is only one parcel of land involved which is the property burdened by the easement
2. usually a utility easement
99
express easement
arises from the
1. express grant of the easement to someone else
2. express reservation of an easement when land is sold
3. must be in writing, signed by the holder of the servient estate and satisfy all the deed formalities
4. easements of less than a year do not have to be in writing
100
implied easement
1. previous use by a common grantor:there must be previous use by a common owner that was continuous, apparent and reasonably necessary
2. absolute right of access: the owner of landlocked estate has a right to access to get off his land, the owner of the servient estate can choose the location of the easement so long as the choice is a reasonable one
101
easement by prescription
arises very mush like title in adverse possession there are four requirements
1. adverse use
2. continuous and uninterrupted and must last for the specified statutory period (seasonal use may satisfy this requirement)
3. use is visible and notorious or made with the owners knowledge
4. use is without the owners permission and oral permission is enough to destroy the hostility needed to est the easement
102
transfer of the easement appurtenant
1. the benefit is transferred automatically along with the dominant estate whether or not mentioned in the deed of conveyance
2. cannot be transferred separately from the estate
103
transfer of easement in gross
1. easements in gross that are commercial can always be transferred
2. easements in gross that are personal cannot be transferred
104
transfer of the servient estate: the burden of the estate
1. generally easements are always binding on subsequent holders of servient estates even if the easement is not specifically mentioned in the deed of conveyance provided the subsequent holder has notice of the easement
2. if the successor is a BFP which is a purchaser for value who takes without notice, then they do not take subject to the easement
105
three ways a successor in interest to the serviant estate may be put on notice of the easement
1. actual knowledge or notice
2. constructive notice: arises from the fact that the document creating the easement is duly recorded in the buyer's direct chain of title
3. inquiry notice: arises from the buyer's physical inspection of the land and the visible appearance of the easement on the land or notice that arises from inspection of public records contained in direct chain of title
106
scope of the easement
2 presumptions if the easement is silent on use
1. perpetual
2. use is that of reasonable development of dominant estate
107
reasonable development of easement
that development which would likely have been contemplated by the parties at the time the easement was granted
-can only be used to benefit the dominant estate
108
remedy for excessive use of the easement
enjoin the excessive se but do not terminate the easement
109
repair of the easement
1. the holder of the benefit is responsible for making necessary repairs to the easement
2. holder of the easement has the right to go onto the servient estate to repair easement
3. the holder of the easement must make a reasonable restoration of the servient estate after making repairs to the easement
4. unless the easement says otherwise the holder of the serviant estate has no repair obligation
110
termination of the easement
1. may end by its own terms
2. doctrine of merger: whenever the owner of the dominant and serviant estate come together in the same owner, the easement is terminated
3. deed of release: must be in writing and comply with deed formalities
4. abandonment by action: mere non-use does not itself constitute abandonment, intent to abandon must be manifested by the holder of the dominant estate by taking some physical action to show intent
5. termination by estoppel: 1. a representation of relinquishment by the holder of the easement and the holder of the servient estate must make a change in reliance
6. termination by prescription: focus on the serviant estate (they must stop the use of the easement and keep it stopped for a period of time required by the applicable statute of limitation
7. termination of easement created by necessity: once the necessity ceases to the exist, the easement automatically terminates
111
easements for view and sunlight
no implied easements for these
112
license
1. a limited privilege to use the land in the possession of the licensor
2. a license is not a property interest, it is a contract right
3. license can always be revoked at will be the licensor
4. if the revocation is wrongful, the licensor may have to pay contract damages
5. all tickets are licenses
113
irrevocable licenses
1. if an easement is attempted but fails due to the statute of frauds, a license is created
2. of moeny is spent on the property in furtherance of an oral license then that license becomes irrevocable
114
profits
1. give the right to go on the land of another and take away a natural resource (timber, coal etc)
2. along with the grant of profit goes the implied easement to go on the land to remove the natural resource
3. use easement rules to analyze any situation involving profits
115
restrictive covenants
gives the holder interest the right to restrict some third party in the use of his land
fall into 2 categories
1. covenants running with the land at law and
2. equitable servitudes
-both involve a written promise usually in a deed that imposes a restriction on the use of the land, the only difference is the theory used to enforce the terms of the restriction
116
restrictive covenant v. equitable servitude
1. if the plaintiff wants money damages? restrictive covenant
2. if the plaintiff wants an injunction? equitable servitude
117
four requirements to enforce a restrictive covenant
1. intent (must intend that the covenant run with the land)
2. notice (actual, constructive, inquiry)
3. touch and concern: more valuable or more useful
4. privity: 2 kinds horizontal and vertical
118
privity:
1. if the successor in interest is the plaintiff then we know that person is trying to establish that the benefit of the covenant runs to the plaintiff
2. . if the successor in interest is the defendant then we know that person is trying to establish that the burden of the covenant runs to and binds the D
119
privity required form the burden and the benefit
successor in interest in the defendant requires both horizontal and vertical privity
2. successor in interest in the plaintiff vertical privity only
120
vertical privity
refers to those that subsequently obtain the property subject to the covenant. these successors take the full estate held by their predecessor
there is no horizontal privity required to enforce the benefit of a restrictive covenant
121
horizontal privity
refers to the original parties to the promise
1. these two parties must share some interest in the land independent of the covenant
2. to establish horizontal privity there must be a conveyance of the property between the original parties
122
equitable servitudes: three requirements to obtain an injunction to enforce the burden
1. intent
2. touch and concern the land
3. notice to the subsequent purchaser (actual, constructive or inquiry)
no privity is required
123
equitable servitude to enforce the benefit of a covenant
intent and touch and concern
124
reciprocal negative servitude
1. aka mutual rights of enforcement
| 2. allows each lot owner in a residential subdivision to enforce a restriction on on use against every other lot owner
125
requirements to establish a mutual right of enforcement
1. intent to impose a servitude (a restriction on use) and all land in the subdivision (can be found in the common building plan, can be imputed to all even if not in the deed)
2. notice
126
defenses to enforcement of covenant as an equitable servitude
1. unclean hands: P made same use
2. acquiescence: let other neighbors do the same thing
3. Laches: only complained after, waited too long
4. Estoppel: represented that had no problems with the plan
127
dedication of the land
if a restriction in the deed that marks the land for use for a particular purpose like a park
128
termination of covenants and servitudes
1. deed of release
2. merger
3. changed conditions (only is all of the lots in the subdivision are affected, will the restriction be eliminated)
129
adverse possession
1. statute of limitations in ejectment to cut off the true owner's right to recover possession of her land, once the statute runs, the true owner loses title to the land
2. is the person on the land a trespasser or have ttielto the land
130
requirements for adverse possession
1. Hostile
2. Exclusive
3. Lasting (for the stat. period) usu 20 years
4. Un-interrupted
5. Visible: open and notorious
6. Actual
* * the true owner does not have to know what is going on and the possessor does not have to think he owns the land
131
doctrine of constructive adverse possession
1. exception to the actual possession requirement
2. possessor has color of title to the land, (makes an invalid claim of title)
3. you can get what you actually possess and what you have color of title too
4. the doctrine expands the kernal of actual possess out to the full extent of the color of title under which the adverse possessor makes his claim of right to the property
132
limitations on the doctrine of constructive adverse possession
1. the amount of land that is actually possessed must bear a reasonable relation to the whole
2. the property must be unitary (one seamless whole)
133
leased land and adverse possession
1. this is an exception to the actual possession requirement
| 2. leasing land to a third party constitutes possession for purposes of adverse possession
134
adverse possession against concurrent owners
generally no adverse possession against a co-tenant unless the co-tenant in possession excludes the other co-tenants from possession and the stat period runs, the exclusion starts the adverse possession clock
135
adverse possession and future interests
the adverse possession clock does not start to run against a future interest holder until that tenant becomes possessory
2. in the case of FSD, the happening of a condition starts the clock for purposes of adverse possession, aka when the grantor automatically received his title
3. FSCS-clock doesnt run until the grantor exercises the right of re-entry
136
tacking
1. an adverse possessor can tack together successive periods of adverse possession in order to satisfy the statutory period
2. true ownership can also be tacked
3. if there is a gap in possession, there is no tacking
137
disabilities in adverse possession
1. infancy
2. insanity
3. incarceration
* if a true owner is suffering from any of these three disabilities at the time the period of adverse possession begins then the clock for adverse possession will not start to run until the true owner is free of the disability
* cannot tack disabilities
138
intervening disability
1. intervening disabilities do not stop the clock
139
ohio law and disabilities and adverse possession
action to recover possession of true owners land must be brought within 21 years after the COA accrues. if there is a disability, the true owner has 10 years after the disability is removed to bring an action to recover possession
140
adverse possession and government land
generally you cannot adversely possess the government's land
141
title and adverse possession
not marketable
142
conveyancing
two step process: 1. contract 2: conveyance
143
contract of sale and the escrow period
1. the contract period is governed by contract law
| 2. contract exists from the time of signing until the deed is transferred at closing
144
statute of frauds and property
1. any contract for the sale of any interest in real property must be in writing and signed by the one who is sued
2. the writing must include:
1. description of the property
2. name of the parties
3. price
145
doctrine of part performance and property
1. exception to the statute of frauds
2. 2 requirements: oral contract must be certain and clear and the acts of partial performance must clearly prove up the existence of a K
146
how to prove up the existence of K in part performance
buyer takes possession and
1. buyer paid full or close to full purchase price OR
2. buyer built improvements on the property OR
3. the buyer took some further action that clearly proves up the existence of the K
147
risk of loss: doctrine of equitable conversion and property
1. the buyer bears the risk of loss
2. under the doctrine, once the K is signed, equity treats the property as the buyers land and therefore the buyer has the risk
3. this only applies if the seller is not at fault for the loss
148
death of a party before close of escrow
1. if either party to the K dies before closing, equity will still order specific performance of the if necessary. the death of either party generally does not affect the rights of the parties as set out in the contract
149
if the seller dies before closing of escrow
1. buyer closes with the sellers estate, buyer delivers the purchase price to the estate
2. seller's interest is in the consideration/ personal property
150
if the buyer dies before closing
1. seller closes with the buyer's estate, title delivered to the estate
2. buyer;s interest is in the real property
151
marketable title
1. every land sale contract contains an impled warranty that the seller will deliver marketable title to the buyer at the close of the escrow period
2. title that a reasonable buyer would accept, which means minor defect do not matter
152
ohio marketable title
1. marketable title act to simplify and facilitate land sale K by allowing the Buyer to rely on the record chain of title.
2. generally, any interest in land that existed prior to the root of title is extinguished unless there is some written reference to the interest in some prior recorded instrument
153
how to satisfy marketable title
1. proof of title-give the buyer a tangible evidence of the title
2. title free of encumberances
3. valid legal title as of the date of closing
154
encumberance
easements, restrictive covenants, mortgages, options, other than those previously disclosed
2. zoning is not an encumberance but violation of zoning is
3. violations of housing or building and safety are not
4. mortgages are except for the mortgage that is satisfied by the sale of the property
155
what if buyer finds the title is not marketable?
1. buyer must notify the seller of any defect in title and allow the seller a reasonable time to cure the defect even if this means postponing the closing
156
buyer's remedies for seller's failure to give marketable title
1. rescission
2. can sue for damages
3. specific performance which is coupled with a reduction in the purchase price to relfect the defects of title
157
time of performance
1. contract usually specifies
2. what if one party does not perform?
- no problem is rendered within a reasonable time (2 months late)
3. time is not of the essence in land sale contracts unless the K says otherwise or the facts make it clear
158
time is of the essence is violated in land sale
1. the party that failed to peform is in total breach and cannot enforce the K
2. in ohio: time is not of the essence in equity but it is in law so a lawsuit seeking specific performance will nothave time of the essence but for money damages it will
159
remedies for breach of K for sale of real property:
damages:
1. measure is generally going to be the difference between the K price and the value of the property as of the date of breach
2. liquidated damages: provision that says the buyer deposit is forfeit if buyer breaches (enforced if amount is reasonable usually 10%)
specific performance is available to both buyer and seller
160
defects on the property as of the date of closing
1. if renders the property unfit for habitation: common law, cannot rescind modern: can rescind if seller actively concealing the defects
2. not there is a implied warranty of fitness that applies to the sale of new residential housing by a seller/builder
161
deed formalities
1. once the deed is accepted at closing the contract is extinguished
2. all contract provisions are extinguished unless: the K specifies they survive closing or they are included in the deed itself
162
deed to pass title
1. execution
| 2. delivery
163
execution of the deed
1. statute of frauds: must be in writing and signed by the seller
2. must describe the land with sufficient accuracy in order to pass title (must enable you to ID the property otherwise void for vagueness)
3. parol evidence can be used to clarify the deed description
4. description by metes and bounds controls over description by acreage
164
delivery of hte deed
1. solely a question of whether the grantor has the necessary intent to pass title. no actual transfer is required
2. recording the deed raises a presumption of delivery even if the grantee is unaware
3. once delivery occurs title passes even if the deed remains in the grantor's possession
4. intent can be shown with parol evidence
5. if the grantor dies with the deed in his possession presumption of no delivery
165
conditional delivery problems
1. delivery to a future interest: can be to a but not until I die
2. oral conditions: a plurality rule is to ignore the oral conditions and consider delivery complete
3. delivery conditioned on the grantee;s payment of purchase price: is valid if, grantor delivers deed to escrow, instructs the excrow agent to deliver the deed to grantee when condition is satisfied and the grantor cannot take the deed back until the condition is satisfied
166
delivery must be accepted
1. only valid if accepted
2. acceptance is implied unless the facts show otherwise
3. consideration is not required for deed to be valid
167
quitclaim deed
1. grantor makes no promises regarding the title
168
covenants of title
the grantor makes a promise regarding title: 6 general warrantys
169
three present covenants
1. breached the moment the conveyance is made and buyer can sue immediately.
2. personal to the grantee and do not run with the land
3. covenant of seisin
4. covenant of the right to convey (used together, seller has title and possession and can convey)
5. covenant against encumbrances: seller promises that there are no encumberances that have not been disclosed
170
three future covenants
1. not breached immediately, breached at some later time when the grantee is disturbed in possession
2. run with the land and can be enforced by all subsequent purchasers
3. covenant of warranty
4. covenant of quiet enjoyment (seller will protest buyer against anyone who comes alone later and claims paramount title)
5. covenant of further assurances 9if the seller omitted something in passing title, they will do whatever necessary to cure)
6. ohio does not recognize covenants of further assurance or quiet enjoyment
171
damages to breach of warranty
limited to the amount of purchase price received by the warrantor plus incidental damages
172
estoppel by deed doctrine
1. grantor gave an implied covenant that the titel will be conveyed to the grantee
2. grantee can sue to compel transfer of title
173
estoppel by deed and subsequent sale to a BFP
1. sale to a bfp will cut off the rights of an earlier grantee and therefore will cut off that grantee's rights to rely on estoppel by deed
174
conveyancing by will: ademption
1. if a will purports to devise a specific parcel of land but the testator does not own the land at the time of her death the gift is adeemed
2. the gift fails and it will not be replaced by other property
3. ademption doctrine generally does not apply to a gift of property that was subject to an executory contract of sale in escorw at the time of the testator's death instead, the devisee will receive the proceeds from the sale
175
exoneration
1. if the devised property is subject to a mortgage or other lien that lien must be exonerated from the testator's estate
3. the devisee is entitled to have the lien paid off from the testator;s residuary estate and the property passes lien free
4. the growing trend is to abolish this doctrine and the devisee will take the property subject to the mortgage
176
Ownership interests in trust
1. an express private trust is reated in writing by a settlor who transfers title to real proeprty to a trustee who holds and manages the property subject to a fiduciary duty to use the highest case and skill for the benefit of the beneficiaries of the trust
2. trust can be inter vivos or by will
177
trustees in property
1. hold legal title to the real property
2. must act in accordance with the settlor's written instruction if any
3. subject to strict fiduciary duty
4. if trustee dies, court appoint a substitute
178
trust and the RAP
1. a trust is subject to RAP
| 2. the rule operates in exactly the same manner in the case of trusts as it does for deeds
179
charitable trusts for real property
1. do not have names beneficiareis
| 2. are either given to established charities or large groups of persons (victims of hurricane)
180
cy pres doctrine
a court may alter the terms of the charitable trust in order to further the settlor's intent
181
common law recording
first in time first in right
182
recording statutes policy
1. made to protect subsequent purchasers in certain situations
2. if the subsequent purchaser does not satisfy the requirements of the recording statute, then the common law rule applies
183
mechanics of recording
1. the court clerk files a copy of the deed in a book and makes a not of the page and volume number
2. the clerk then indexes the information in the grantor index and the grantee index
184
notice recording act
1. protects BFP who take without notice of an earlier transaction
2. sole inquiry is notice and therefore protects those without notice
3. recording imparts constructive notice
4. ohio has a notice statute
5. look for without notice, or in good faith
185
race recording statute
1. notice is irrelevant
2. whoever records first gets the property
3 subsequent purchaser does not have to be a BFP
4. look for first recorded languge
186
race notice jurisdiction
protects those who are BFP and take without notce and are the first to record
187
Bona fide purchaser
1. a BFP for value who takes wihtout notice
2. value: inless there is an explicit claim of fraud, any consideration that is out of pocket is enough for value
3. generally one who purports to take property as a n heir devisee or donee is not a bfp
188
shelter rule exception BFP
1. anyone even heirs donees or devisees can shelter under the rights of a bfp
189
three kinds of notice
1. actual notice:
2. record notice: constructive and arises from the record, deed must be recorded in the buyer's direct chain of title so that it can be found and inspected
3. inquiry notice:examine the land and must make inquiry as to any unexplained possessions
190
subsequent interests protected by the recording statutes
1. subsequent mortgagees are generally protected
| 2. judgement creditors are generally not protected
191
title searching: concept of legal blinders
1. understand what is disclosed in a title search
2. legal blinders means that the title search only examines the actions taken by the grantor during the period of ownership by the grantor
3. does not look for anything that the grantor may have done before obtaining title
4. not does the title search look for anything the grantor did after passing title
192
role od inquiry notice in the title search
1. where reading of the deeds on record discloses an unrecorded transaction then the subsequent purchaser has to make an inquiry in order to take as a BFP
2. to qualify as a bfp without inquiry notice the subsequent purchaser must make a physical inspection of the property and must investigate any unexplained possessions or uses of the property
193
security interest in real property
1. a deice used to secure a loan on a property, typically the loan is reflected in a promissory note given by the borrower and the security interest is reflected in separate written interest
194
mortgage
1. a mortgage is given by the debtor (mortgagor) to the creditor (mortgagee)
2. if the loan is not paid in full, the sheriff sells the land at a court ordered foreclosure sale
3. equitable mortgage: the borrower owes the grantee money and gives the property to the grantee in a deed that is absolute on its face, separately the grantee promises to reconvey the land to the grantor when the debt is paid
4. equitable mortgage: sale leaseback, deed given to lender, who immediately leases back the land with the option to repurchase
195
deed of trust
1. given by the debtor to a third party trustee who holds the deed of trust until the loan is paid in full
2. if the loan is not paid in full, the trustee can
a) obtain a court order for a foreclosure sale of the property OR
b) the trustee can sell the property by himself at public auction
196
land sale contract
the installment land sale contract is the arrangement where the debtor signs a contract promising to make payments to the seller but the seller keeps title to the property until the loan is paid in full
197
debtor's right of redemption
1. generally: at any time right up until the moment of the foresclosure sale, the debtor can redeem the property by paying the amount that is dues and payable (amount in arrears) plus interest unless the mortgage has an acceleration clause
198
acceleration clause
1. the debtor must pay off the entire balance of the mortgage in order to redeem the property
199
waiver of the right of redemption
1. generally cannot be waived in the original deed of trust or mortgage but it can be waived later if there is separate consideration for the waiver
2. an attempt to waive the right in the original mortgage is generally referred to as clogging the equity of redemption and is prohibited
200
statutory right of redemption
1. about half of the states allow the mortgagor to redeem the property for some fixed period of time after the foreclosure sale has occured (usually 6 months to 1 year)
201
priorities on the payment of multiple mortgages
1. generally first in time first in right or similar to a recording statute
2. voluntary subordination: a senior mortgage may agree to subordinate to a junior one
202
Purchase money mortgage
1. is taken out to buy the property
2. receives priority over any other mortgages executed about the same time even if the others are recorded first
3 pmm given by the seller gets priority over PMM by a 3rd party lender
203
changes in senior mortgage
1. if mortgagor does anything to increase the senior mortgage, then it loses its priority but only to the extent of the change
204
foreclosure and junior interests
1. foreclosure wipes out all junior interests but foreclosure does not wipe out senior interests.
2. senior interests continue in place and the buyer takes the property subject to the senior interest
205
protections to holders of junior interests
1. generally they have the right to pay off any mortgage being foreclosed on in order to keep their junior interests from being wiped out
2. they are a necessary party to any foreclosure proceeding
3. if they are not made a party to the proceeding, they are not wiped out
206
payment of the proceeds from a foreclosure sale
1. pay the cost of foreclosure
2. pay off the mortgage that was foreclosed on
3. pay off the junior in order of priority
4. pay remaining balance to the borrower/mortgagor
207
anti-deficiency statutes
what happens when the foreclosure sale does not raise enough money to pay off the mortgage?
2. the creditor can sue the mortgagor personally for the balance due
208
forfeiture clause
1. if a debtor misses a payment, the seller can cancel the contract keep all the monies paid to date and retake the property
2. clauses like this will be enforced even though courts can be hostile to the clause. sellers are limited to the remedy of enforcing the clause only and cannot get specific performance or other damages
209
mortgagor transfer of the property
1. whenever the grantor transfers title to the property, the grantee automatically takes the property subject to the mortgage
2. grantee is not personally liable on the mortgage unless they specifically assumed the mortgage
3. the mortgage still has to be paid or the mortgagee will foreclose on the property so the grantee is still subject to losing the property
4. generally any modification of the obligation by the creditor and greantee will release the original borrower of all liability
210
mortgagee transfer of the note
1. can freely transfer the note and the mortgage will always follow the note it secures
2. on ohio, transfer of the mortgage without the note is void
211
due on sale clause
1. says that the mortgagor transfers the property without the mortgagee's consent, the entire balance of the loan becomes due immediately
2, these are enforceable clauses
212
security interest in fixtures
1. a seller of fixtures who provides a purchase money security interest in the chattel must make an article 9 fixture filing within 20 days after attachment
2. if the seller makes a timely UCC filing seller may remove the fixture without regard to priority of the eralier mortgage
3. if the seller does not file, the security interest in the chattle is subordinate to the earlier mortgage
213
lateral support in real property
1. a landowner has the right to have her land supported by adjoining landowners and strict liability results if the land is not supported
2. strictly liable if the land would have collapsed anyway, without the weight of the improvements or if negligent
214
subjacent support
1. support from the bottom
2. problems arise where mineral rights have been legally severed from the surface rights
3. the holder of the mineral rights removes the minerals and causes the surface to collapse
4. surface owner generally have the right to their land support from the bottom and thus strict liability results
5. scope of the right: extends to land and to those imprvements that were existing at the date the mineral rights were severed in fee simple
215
riparian rights
1. refers to those whose property borders a lake or stream
2. generally: riparian owner may use all the water needed for domestic purposes
3, riparian owners are limited to a reasonable use for non domestic purposes such as commercial or industrial use
216
prior appropriation: water rights
1. this is a minority rule
2. first in time takes
3. the first person who made beneficial use od the water from a lake or stream has that right protected against those who come later as long as the use continues
217
underground water
1. percolating or well water
| 2. landowner entitled to reasonable use of ground water, must use it on the property and not export is elsewhere
218
surface water rights
1. runoff or floodwater
| 2. natural flow or common enemy approach
219
natural flow approach
1. landowner cannot make any changes at all to the flow of the floodwater as it rushes across the surface of the land
2. as a practical matter, it is almost impossible to follow this approach and still amek productive use of land
3. modern courts allow a reasonable means to deal with surface water
4. ohio follows this approach and allows reasonable measure to deal with surface water
220
common enemy approach
1. landowner can do anything he wants with the floodwater whether reasonable or not
