Real Property (DONE) Flashcards
1
Q
What is a fee simple determinable, and how is it created?
A
FSD ends automatically upon the occurrence of a stated event.
Makes the grantor a holder of a future interest of possibility of reverter.
Created by DURATIONAL words: “so long as”, “during”, “while”, “until”
2
Q
What is a fee simple subject to condition subsequent?
A
FSSCS does not end automatically, but gives the grantor the right of reentry to reclaim the land upon the occurrence of a stated condition.
Created by CONDITIONAL words: “but if”, “provided”, “however”, and “upon condition that”.
3
Q
What is a fee simply subject to executory limitation?
A
FSSEL ends automatically on the happening of some condition but it is different because possession will then pass to ANOTHER GRANTEE giving them the future interest, rather than the grantor.
4
Q
Life estate
A
-
5
Q
What is a life estate pur autre vie?
A
A life estate where the measuring life is the life of someone other than the life tenant.
If the life tenant dies before the measuring life dies, life estate passes to the life tenant’s estate until the measuring life dies.
6
Q
What are the rights and duties of the life tenant?
A
All the life tenant can do is maintain the estate, and that means continues the normal use of the land in its present condition.
If the life tenant does more than or less than merely maintaining the estate, then the life tenant is guilty of waste.
7
Q
What is voluntary waste?
A
Any AFFIRMATIVE ACT beyond the right of maintenance that causes harm to the premises.
Life tenant can only continue the normal use; any change of use is voluntary waste, and life tenant is liable to the holder of the future interest.
8
Q
What is permissive waste?
A
Where tenant has failed to maintain the estate. This involves INACTION, NOT ACTION.
9
Q
What are the three things a tenant can do to avoid permissive waste?
A
1) Repair: Life tenant must keep property in repair, but is only responsible for ordinary repairs, not improvements or replacement.
2) Taxes: Life tenant pays all taxes on the property. (Note: holder of future interest must make sure taxes get paid, because a tax sale terminates the future interest)
3) Interest on a Mortgage on the entire property: Life tenant pays any interest on any mort- gage that encumbers the entire fee simple. For example, the life tenant takes title to property already subject to a mortgage when held in Fee Simple. Does the holder of the future pay anything?
10
Q
What is the “changed conditions” exception to the waste rule?
A
If changed conditions have made the property relatively useless in its current use, the life tenant can tear it down without liability to the holder of the future interest.
11
Q
What are the classifications of future interests?
A
1) Reversion
2) Possibility of Reverter
3) Right of Entry (or Power of Termination)
12
Q
What is the reversion interest?
A
The interest kept by the Grantor then he gives a Grantee LESS than the durational estate the Grantor had (
e.g.,:
O to A for life. A has life estate, O has a reversion in fee simple.
13
Q
Is the reversion interest ever subject to RAP?
A
No
14
Q
What is the possibility of reverter interest?
A
Whenever Grantor gives a fee simple determinable, Grantor keeps a Possibility of Reverter. That present possessory estate and future interest always go together.
Remember, the Fee simple determinable ends auto- matically when the condition happens. This means that the Possibility of Reverter does not have to do anything to be entitled to take possession.
15
Q
Is the possibility of reverter subject to RAP?
A
No
16
Q
What is the right of entry?
A
This interest is labeled the Right of Entry or the Power of Termination. Both labels refer to the same future interest.
Whenever Grantor gives a fee simple subject to a condition subsequent, Grantor keeps a Right of Entry. That present possessory estate and future interest always go together.
Grantor must EXPRESSLY reserve a right of entry, and a failure to do so results in the condition being ignored.
17
Q
Is the right of entry subject to RAP?
A
No
18
Q
What effect does the language “for the purpose of” have on a conditional conveyance?
A
No effect, because these are not magic words indicating a desire to forfeit title. This will be construed as creating a covenant rather than a condition.
19
Q
What is a vested remainder interest?
A
Nothing stands in the way of its becoming possessory on the expiration of the estate that comes before it. We have an ascertainable person and there is no express condition precedent.
20
Q
What is a vested remainder subject to open?
A
There is no condition to be satisfied before taking possession, but this remainder is conveyed to a class of people. There is at least one member who will take, but the size of his share is unknown because the class remains open and future persons may qualify as members of the class (e.g., future children).
21
Q
What is a contingent remainder?
A
Something has to happen or be known before the remainder can become possessory.
22
Q
What is a vested remainder subject to divestment?
A
A future interest is vested subject to divestment if something could occur that would divest the remainder of an interest. For example, “From O to A for life, then to B, but if A stops growing corn, then to C”: B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory.
23
Q
What is an executory interest?
A
The executory interest operates to divest or cut short the estate that comes before it; it does not come into possession at the natural expiration of the earlier estate.
If a future interest in a grantee is not a remainder, it must be an executory interest.
If a future interest in a grantee cuts short an earlier estate, it must be an executory interest.
Holder of an executory interest cannot sue life tenant for waste.
24
Q
What is a shifting executory interest?
A
If an executory interest operates by taking title from one grantee and giving it to another grantee, it is called a shifting executory interest.
25
What is a springing executory interest?
If an executory interest operates by taking title from the grantor and giving it to a grantee, it is called a springing executory interest.
26
What is the rule against perpetuities?
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
This is a rule about time. If there is any chance that an interest might vest outside of a life-in-being + 21 years, that interest is void.
27
What are the exceptions to RAP?
1) Charity-to-charity exception: RAP is never violated if the gift over is from one charity to another charity
28
What are the characteristics of a joint tenancy?
Right of survivorship. The surviving JT's take automatically on the death of a JT (but not inherit).
29
How is a joint tenancy created?
Requires "four unities": time, title, interest, and possession
1) Time: all interested must have vested at the same time
2) Title: the grant to all JTs must be by the same instrument of title
3) Interest: all JTs must take the same type and same size interest (all get 1/4, etc.)
4) Possession: all must have identical rights of possession
Must be created by CLEAR LANGUAGE. Otherwise a tenancy in common is created
30
How is a joint tenancy destroyed?
Severance: Involuntary destruction caused by conveyance of one JT interest, mortgage (title theory), contract of sale, judicial sale by a creditor.
31
What is the lien theory?
Majority of states. No severance when a mortgage is executed on a JT interest, the lien merely attaches to the title.
32
What is the title theory?
Minority of states. Mortgages on a JT interest sever the joint interest and create a tenancy in common.
33
How does a contract of sale affect a joint interest?
Severance occurs on the date the contract is signed, rather than the date of closing, under the doctrine of equitable conversion (split in the equitable and legal property right at the time of formation of a contract)
34
What are the elements of a tenancy in common?
There is no right of survivorship, and only one unity is required: possession. All tenants in common must have equal rights of possession.
35
How is a tenancy in common created?
This is the default tenancy. If a JT isn’t properly created, it’s a TIC. In a common law jurisdiction, if the 4 unities are not present, or if the right of survivorship is unclear, then a Tenancy in Common is created.
36
What are the rights and duties between and among co-tenants?
Possession, accountability, sharing necessary expenses, and right to partition.
37
What are the different types of tenancies in landlord-tenant law?
Tenancy for Years: tenancy for a specified time, created with specific language (does not have to be for "years", but any TFY over one year must be in writing under SOF)
Periodic Tenancy: Repeating terms - ongoing, continuing, repetitive estate, until one party gives valid notice (e.g., month-to-month, week-to-week, year-to-year)
38
How is a periodic tenancy created?
There are three ways to create them: by express agreement, implication, or operation of law.
39
What is the effect of a holdover tenant sending a check to the landlord, and the landlord accepts it?
This creates a new periodic tenancy by operation of law.
40
How is a periodic tenancy terminated?
Termination only occurs by giving proper notice. It can be terminated by either the landlord or tenant if proper notice is given. If there is no statute given, the following rules must be followed for valid notice:
Proper length of notice: 6 months for y2y, length of the period up to 6 months for tenancies less than a year.
41
What is the statutory notice requirement to end a periodic tenancy in Texas?
30 days, and the notice does not have to be given so that it will end on the ending date. The statute allows for proration of rent.
42
What is a tenancy at will?
A tenancy that either party can terminate at any time, without notice.
Can be terminated by: waste, death of either party, assignment by the tenant, transfer of title by landlord, lease by landlord to someone else.
43
What is a tenancy at sufferance?
Not a true tenancy! This is the bare possession of a holdover tenant. At Landlord’s sole option, Landlord can either:
- hold tenant as a wrongdoing trespasser
- impose new periodic tenancy on tenant
44
What type of tenancy can be imposed during a tenancy at sufferance?
Residential: always month-to-month
Commercial: if tenancy was for more than a year, then new tenancy is y2y. If old tenancy was less than a year, then measured by rent period of old tenancy.
If the old, expired tenancy was for a year or more, the new tenancy is year-to-year.
If the old tenancy was for less than a year, new tenancy is measured by the rent period of the old tenancy.
45
What are the limitations of the types of tenancies that can be imposed under sufferance?
A LL cannot impose a new tenancy on holder tenants if it is not REASONABLE. If there is a holdover T of just a few hours, or if T was holding over due to circumstances beyond T's control, then L cannot impose new tenancy.
46
How may a LL remove a holdover tenant?
Most statues by statute prohibit forcible entry (self-help) by the landlord. A landlord must not use force or self-help to remove a tenant.
47
When can a forcible eviction proceeding begin in Texas?
The justice courts have jurisdiction here.
The eviction cannot proceed until the landlord gives at least 3 days notice to vacate, unless the lease agreement calls for a longer or shorter time.
48
What are the general duties of a tenant to a landlord?
If lease is silent on tenant's duties, tenant must pay rent and not commit waste.
49
What happens when a tenant commits waste?
The present possessory estate will come to an end and the future interest (landlord) is entitled to protection. `
50
What happens if the premises is destroyed not by fault of the tenant?
Tenant can terminate the lease if it results in complete or partial eviction (?)
51
What happens if tenant fails to pay rent?
Landlord can sue both for damages and to evict the tenant
52
What choices does the landlord have if the tenant unjustifiably abandons the leasehold?
1) Treat abandonment as an offer to surrender and accept the offer by retaking the premises; thus ending T's liability as of that date.
2) Re-let the premises on Tenant's account, and hold Tenant liable for any deficiency (mitigation of damages)
53
What are a landlord's duties to the tenant?
1) Implied Covenant of Quiet Enjoyment: Implied promise that she will not breach this covenant. Can be breached by actual eviction, particularly actual eviction, or constructive eviction.
2) Condition of the Premises: The landlord must deliver residential premises in a habitable condition. A majority of states apply an implied warranty of habitability for residential tenancies. Breach of the warranty grants tenants several remedies.
54
What is the result of an actual eviction by the landlord? By a paramount title holder?
In both cases, the tenant is freed from the obligation to pay rent.
55
What is the result of a partial actual eviction by the landlord? By a paramount title holder?
Landlord: Tenant can stay and not pay rent.
Paramount title holder: Tenant's rent is apportioned to reflect the amount of property taken.
56
What is the result of a constructive eviction?
Occurs when a landlord's breach of duty renders the premises unsuitable for occupancy.
1) LL or LL's agents must have caused the injury
2) The breach substantially and materially deprived the tenant of the use and enjoyment of the premises
3) The tenant must give the landlord notice and a reasonable time to repair/respond within a reasonable time after the breach or will otherwise lose the right to do so.
4) After a reasonable time, the tenant must vacate the premises.
The remedy is for the tenant to either 1) terminate the lease or 2) sue and seek damages
57
What is the Texas rule for the covenant of quiet enjoyment ?
The covenant of quiet enjoyment does not apply to physical repair issues. The statutory warranty supersedes the common law. However, the covenant can still be used for non-physical repair issues like noisy neighbors and criminal activity by other tenants.
58
What remedies are available to a tenant for a landlord's breach of the warranty of habitability?
1) Tenant may move out and terminate the lease
2) T may make repairs directly and offset the costs from future rent obligations
3) Tenant may reduce or rebate rent to an amount equal to FMV in light of the defects
4) Tenant may remain in possession, pay full rent, and seek damages.
NOTE: This warranty only applies to RESIDENTIAL properties
59
What is the Texas statutory warranty of habitability?
In Texas, the Texas Property Code requires that the landlord must make repairs to conditions that materially affect the health and safety of an ordinary tenant.
WAIVER: Can only be waived if the property is the landlord's only owned rental dwelling, is not in need of repair, and the LL does not know or have reason to now of any problems the would occur during the lease.
60
What is the waiver requirement for the Texas statutory warranty of habitability?
1) If a LL owns only one rental dwelling
2) The property is not in need of repair at the beginning of the leasehold
3) The landlord does not know or have reason to know of any problems that would occur during the lease or an extension or renewal
4) The lease is in writing, with a provision that is in bold type or underlined that is clearly, voluntarily, and knowingly made for consideration
If these are satisfied, then the tenant can be required to make and pay for all repairs to the leased premise.
61
What is the notice requirement for a tenant to avail themselves of the available remedies under the Texas statutory warranty?
The T must send a written notice to the landlord by certified mail return receipt requested, by registered mail, or by another mail service that allows tracking of delivery.
The notice must be given to the person to whom or the place where the tenant's rent is normally paid, and the tenant must be current on rent.
After proving notice, the landlord must be given a reasonable time to repair/respond.
62
What remedies are available to a tenant for a breach of the Texas statutory warranty?
1) Choose to terminate the lease and obtain judicial remedies
2) Choose to stay and sue for judicial remedies, including damages and an order for the landlord to make repairs, or
3) Choose to repair and deduct the cost from the next month's rent if specific procedures are followed.
63
What is the effect of retaliatory eviction?
If the T exercises a legal right to report violations of the building code, the landlord is not permitted to terminate the tenant's lease in retaliation (includes other penalties like raising rent or reducing services)
64
What constitutes a retaliatory eviction?
If the action by the landlord is taken within 90 to 180 days, the landlord is presumed to be retaliating and will have the burden to prove a valid, non-retaliatory reason for his actions.
65
What is the general rule behind the Fair Housing Act?
Bars discrimination based on race, ethnicity, religion, national origin, gender, and disability in the sale or rental of a dwelling. Discrimination against families with children is also barred except in senior citizen housing.
66
What is an assignment?
When the T transfers all of his rights, holding no rights for himself.
67
What is a sublease?
When T transfers a portion of the lease period, holding some time back for himself.
68
What is the Texas rule for assignment or subleasing?
In Texas, by statute there is no right to assign or sublet unless the landlord gives permission.
69
How does liability transfer between an original tenant and assignee tenant?
A lease is both a conveyance and a contract, and these are separate and independent grounds for liability.
When T assigns the leasehold, T2 now has the present estate, and the LL still has the reversion.
ASK: Is there privity of estate between L and whichever T is being asked about? If yes, then there is liability on the conveyance. Privity of estate exists only between present L and present T.
Does T2 "expressly assume" any of the covenants in the lease? If yes, then there is privity of contract between the landlord and T2.
"Assignee stands in the shoes of the original tenant in a direct relationship with the landlord; i.e., the assignee and the landlord are in PRIVITY OF ESTATE, and etc hs liable to the other on all covenants in the lease that run with the land. After assignment, the original tenant is no longer in privity of estate with the landlord, her her lease contract remains in effect and enforceable. (Remains in privity of contract)"
70
When does a covenant run with the land?
When the covenants touch and concern the land (including covenant to pay rent)
If performance of covenant makes the land more valuable or more useful, then it touches and concerns the land.
71
How does liability transfer between an original L and a successor L?
Original L is still liable to T for any contracts with privity, but successor L AND original L are liable if the lease covenant runs with the land and there is either privity of contract or privity of estate.
RIGHTS AGAINST TENANT: "Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The benefit of all tenant covenants that touch and concern the land runs with the landlord's estate to the new owner."
LIABILITY TO TENANT: "The burden of the landlord's covenants that touch and concern the land runs with the landlord's estate to the assignee, thus, the assignee is liable for the performance of those covenants. The original landlord also remains liable on all of the covenants he made in the lease"
72
How does liability transfer for subleases?
Sublessee is not liable to L because there is no POC and no POE (the sublessor is deemed to have kept the estate).
The original tenant is still connected to the landlord on estate principles because the sublease happens during part of the T's leasehold and the T's present possessory estate is what is connected to the landlord on the timeline.
73
If a sublessee doesn't pay rent to a landlord, who is held liable?
Sublessee is not liable because there is no privity relationship. The promise to pay rent comes from the original tenant, so that tenant would have to go after the sublessee for the rent on their own.
74
What are non-assignment and non-sublease clauses, are how are they waived?
Restricts assignment or sublease entirely or without permission.
These are restraints on alienation, but are permissible on leasehold estates. Violation of these clauses merely makes the transfer "voidable", but requires direct action of L to actually reverse. If nothing is done by L, nothing happens.
These clauses are waived by L's permission. Permission given once means the clause is waived for all time, regardless of time passed.
WATCH OUT: Courts do enforce non-assignment clauses, but do not like them and are very quick to find waiver.
75
What are the limitations on an L deducting from a T's security deposit?
L cannot deduct charges from a security deposit for normal wear and tear, and must account for any money that is withheld from the deposit.
Generally, a tenant is required to obtain his security deposit within 30 days of providing the landlord with his forwarding address (this applies to residential cases - in commercial leases, the time limit is 60 days).
76
What is a fixture?
A fixture is a chattel that has been so affixed to the land that it has ceased being personal property and has become part of the realty.
When removal is possible, but doing so would cause considerable loss or destruction to the property, the items are considered fixtures.
77
How does common ownership affect fixtures?
Common ownership of fixtures occurs when the person installing the fixtures owns both the land and the fixtures.
A buyer of this land would be entitled to enjoin the seller from removing the fixtures, even though it used to be their property.
INTENT: If the chattel is not incorporated into the structure, classification as a fixture will depend on the objective intent o the party who installed them.
78
How does divided ownership affect fixtures?
Divided ownership occurs when the person who owns installs the chattel does not own the land. A tenant installs a furnace in the home she rents which belongs to the landlord.
Ownership of the chattel depends on the nature of the tenancy, otherwise by express agreement between the parties.
TRADE FIXTURES: An item used in the tenant's trade or business if usually able to be removed unless removal would cause substantial damage to the premises.
79
When must chattel be removed from a property?
If tenant can remove the chattel, it must be removed before the end of the lease.
If owner can remove the chattel, if must be removed before closing.
The party removing the chattel is responsible for damages caused by removal.
80
What is an easement appurtenant?
When the easement directly benefits the use and enjoyment of a specific piece of land.
Appurtenant easements create a dominant estate (right to use) and a servant estate (obligation)
81
What is an easement in gross?
The easement does not benefit the land. There is only a servant estate, no dominant estate. Generally applies to utility easements.
82
What is an express easement?
An interest in land, which must comply with the SoF and formalities of a deed.
These easements may be created by an express grant of an easement to someone else, or the reservation of an easement when land is sold to another.
Note: Easements of a year or less do not have to be in writing but most easements are perpetual in nature and require a writing.
83
What is an implied easement by prior use?
The implied easement by prior use is recognized because we assume that the parties intended the prior use to continue but did not reduce it to writing.
Implied easement by prior use exists if commonly owned land is severed, and during the time of common ownership there was a use by the common owner who sells off a piece of is property to someone else, and the previous use is apparent and continuous, and its use is reasonably necessary for the continued enjoyment of the now dominant estate.
84
What is the Texas application for implied easements by prior use?
If impliedly reserved, the use must be strictly necessary for the continued enjoyment of the now dominant estate.
If the implied easement by prior use is impliedly granted, then only reasonable necessity is required. (minority approach)
85
What is an implied easement by necessity?
Exists when property is landlocked.
1) Common ownership of the land that was severed,
2) At time of severance, the dominant estate became more landlocked and there is a strict necessity for access to a public road.
TEXAS NOTE: Implied easements by prior use are not available for landlocked property. An implied easement by necessity is the proper means to obtain access here.
86
What is an easement by prescription?
Like adverse possession, but only in rights to use, not possession.
Creation:
There must be actual use of the land of another and that use must be:
1) Visible and notorious: so that the landowner could discover the use; cannot be hidden or undiscoverable
2) Adverse: or without the permission of the owner
3) Continuous and uninterrupted
Seasonal use can be OK if appropriate under the circumstances.
87
What is the time period for prescriptive easements on the MBE?
20 years, unless another period is given in the problem
88
What is the time period for prescriptive easements on the Texas?
10 years
89
How is the benefit of an easement transferred?
If the easement is APPURTENANT, the benefit goes automatically along with the dominant estate, whether it is mentioned or not in the conveyance, and cannot be transferred separately from the dominant estate.
If the easement is IN GROSS, then benefits of easements in gross that are commercial can always be transferred, but benefits of easements in gross that are personal cannot be transferred.
90
How is an easement in gross transferred in Texas?
No easement in gross can be transferred unless the language of the easement says so.
The one exception is the conservation easement because the language of the statute creating such easements allows for transfers.
91
How is the burden of an easement transferred?
Easements are always binding on subsequent holders of servient estates, even if the easement is not in their deeds, providing the subsequent holder had NOTICE of the easement.
92
What is the scope of an express easement?
The terms of the easement control on questions of use.
93
What is the scope of an easement created without a writing?
If an easement is created without an express agreement then the use or necessity that established the easement will define its use one created.
94
What is the scope of a silent easement?
If an easement is silent or was created without a writing, there are two presumptions:
1) It is presumed that the easement is perpetual (lasts forever unless otherwise stated)
2) The use presumed is that of reasonable development of the dominant estate (the kind of use that would have been reasonably contemplated by the parties when the easement was created).
95
What constituted excessive use of an easement?
When an easement is used to benefit other property besides the dominant estate.
Remedy is the enjoin that use (not the entire easement)
96
What is required for repair of an easement?
1) Holder of the easement must keep the easement in repair and can always gonna on the servant estate to repair the easement, even if the grant of the easement does not specifically provide the right to enter and repair.
2) Holder of the easement must make reasonable restoration of the servant estate after repairs
3) Holder of easement is obligated to make necessary repairs (holder of servient estate has no obligation to repair, unless easement says otherwise)
97
How is an easement terminated?
An easement can always terminate by its own terms in the agreement. Six other ways:
1) Unity of ownership or merger
2) Release (must comply with SoF and all deed formalities)
3) Abandonment
4) Termination by Estoppel
5) Termination by Prescription
6) End of Necessity
98
What constituted abandonment of an easement?
1) Intent to abandon, manifested by...
2) Some physical act on the property itself that would show the intent to abandon
(Mere non-use, no matter how long it lasts, is not abandonment)
99
What constitutes termination of an easement by estoppel?
Two elements:
1) There must be representation of relinquishment by the holder of the dominant estate; and
2) Change of position in reliance by the holder of the servient estate
100
What constitutes termination by prescription?
Owner of servient estate must STOP the use of the easement and keep it STOPPED for the statutory period.
101
What constitutes the end of necessity of an easement?
Once the necessity that created the easement by necessity ceases to exist, so does the easement.
If the necessity comes back later, then a new easement is required.
102
What is a license on property?
A license is a limited privilege of use, and NOT a property interest; it is only a contract right, and it is revocable at the will of the licensor.
Watch out for:
1) Tickets (always licenses)
2) Irrevocable license (license plus money spent on property furthering the license)
103
What are the rules for an irrevocable license?
Two rules:
1) Anytime an easement is attempted but fails due to the SoF, there is a license.
2) However, if money is spent on the property in furtherance of that oral license, the license becomes irrevocable, and is just as good as an easement, and can be enforced under principles of estoppel.
104
What is a profit?
A profit gives the right to go onto land and take a natural resource away.
Also creates an implied easement to go on to the land to get the resource and take it away.
105
What is a restrictive covenant, and what types are there?
Gives the right to restrict someone else's use of their land. Required to be in writing, because they involve an interest in land.
1) Covenants at law (money damages remedy)
2) Equitable servitudes (injunction remedy at equity)
106
How does liability flow when restrictive covenants are involved?
If the dispute involves the original parties to the covenant, then contract law applies.
If the dispute involves the successors to the land, then we look to the law of covenants and will need to determine whether the benefit, burden, or both need to run with the land.
Both the PARTIES INVOLVED and the RELIEF SOUGHT need to be established before analysis can be conducted.
107
How do you make the burden of a real covenant enforceable against a successor promisor?
1) intent that it run with the land
2) notice of the covenant (actual, record, or inquiry) at the time an interest in the burdened land is acquired
3) the covenant must touch and concern the land (it must make the land more valuable or more useful and not be a personal promise; it must affect the relationship of the parties as landowners)
There must be horizontal and vertical privity between the parties.
108
What is horizontal privity?
Always refers to the original parties to the covenant.
This element requires that, at the time the promisor entered into the covenant with the promisee, the two landowners shared some interest in the land independent of the covenant.
109
What is vertical privity?
Refers to those who subsequently acquire property subject to the covenant and the original party from whom they got the property.
There must be a transfer of the original covenantor's entire estate to the successor.
110
How do you make the benefit of a real covenant transferrable to a successor promisee?
1) Intent that it run with the land
2) Covenant must touch and concern the land
3) Vertical privity (the owner of any succeeding possessory estate can enforce the benefit at law)
It does not have to be the entire estate (e.g., life estate) as with vertical privity for the burden.
111
How is the burden of an equitable servitude enforceable against a successor promisor?
1) Intent that it run with the land
2) Notice of the covenant (actual, record, or inquiry) at the time an interest in the burdened land is acquired
3) The covenant must touch and concern the land
NO PRIVITY IS REQUIRED
112
How is the benefit of an equitable servitude transferable to a successor promisee?
1) Intent that it run with the land
2) The covenant must touch and concern the land
NO PRIVITY OR NOTICE REQUIREMENTS
113
What is required for equitable enforcement of benefit in subdivisions?
If a covenant in a subdivision is silent as to who holds it benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan of development is found to have existed at the time he purchased his lost.
114
What is required to establish the mutual benefit and burden of an equitable servitude in a subdivision?
1) Intent to create a servitude on all the land in the subdivision (found in building plan, subdivision map, deeds from a common grantor)
2) Notice (actual, record, inquiry)
115
What are the equitable defenses to enforcement for equitable servitudes?
1) Unclean hands
2) Acquiescence
3) Laches
4) Estoppel
(defined in other cards)
116
What is the defense of clean hands? (equitable servitude enforcement)
The person seeking enforcement is violating a similar restriction on his own land.
117
What is the defense of acquiescence? (equitable servitude enforcement)
When a benefited party does not challenge a violation by a burdened party and then wants to later (unreasonable time???)
118
What is the defense of laches? (equitable servitude enforcement)
Prevents the plaintiff from sitting back and watching the violation occur and then complaining afterwards without first interfering.
119
What is the defense of estoppel? (equitable servitude enforcement)
Can occur if the benefited party has acted in such a way that a reasonable person would believe that the covenant was abandoned or waived and the burdened party acts in reliance.
e.g., P said earlier she did not mind if D put up an office building and D acts in reliance of that statement.
120
How can an equitable servitude be terminated?
By release or by unity of ownership.
But on the exam, look for CHANGED CIRCUMSTANCES, which must be complete enough that a termination is justified equitably.
121
What are the requirements for adverse possession?
"HELUVA"
1) Hostile (no right to be there)
2) Exclusive (X must be excluding others)
3) Lasting (for the statutory period - CL 20 years)
4) Uninterrupted (continuous use an owner would make)
5) Visible (out in the open/open and notorious)
6) Actual (must actually possess the land to get title)
122
What are the distinct adverse possession statutes in Texas?
1) Title/Color of Title Statute
2) Duly Registered Deed and Payment of Taxes
3) Bare Possession Statute
123
What is the Color of Title Statute in Texas?
If possessor is there under the color of title and has only narrow specified defects in title: 3 years for adverse possession.
124
What is the Duly Registered Deed and Payment of Taxes statute in Texas?
If possessor is there under a recorded deed that is otherwise defective and pays all taxes: 5 years for adverse possession
125
What is the Bare Possession statute in Texas?
If possessor is just in bare possession of the property with no color of title (i.e., naked trespasser): 10 years for adverse possession, but possession is limited to 160 acres (unless a larger area is fenced in).
However, if the possessor has a "deed" that doesn't satisfy the more stringent 3-5 year requirements, the deed can help acquire title to whatever land is described in the deed even if more than 160 acres and even if the land is not fenced in.
126
What is the statutory period for adverse possession when the true owner has a disability?
25 years
127
Does the true owner have to known a trespasser is on the land for the trespasser to obtain adverse possession?
NO
128
Does the possessor have to think that he owns the land?
NO, he doesn't have to have a mistaken belief.
129
In Texas, does an adverse possessor need to intend to appropriate the land as his own?
YES. If the adverse possessor's state of mind is that "I wasn't trying to get anything that isn't mine", then the adverse possession claim fails.
130
What is the doctrine of constructive adverse possession?
An exception to the rule that there must be actual possession.
If someone goes on property under a color of title to a larger tract, but only actually possesses a part of the larger unit, constructive adverse possession can give title to the rest of the property.
Requirements:
1) The amount actually possessed must bear a reasonable relation to the whole (not be only a small part), and
2) The property must be unitary, that is, a seamless whole.
131
How does leasing someone else's land to another effect adverse possession?
i.e., a neighbor leasing their neighbors land to another
This satisfies the actual possession requirement for adverse possession.
132
Does the adverse possession clock run against the holder of future interests?
No, not until the interest becomes possessory.
It is important to identify what existed at the time the adverse possession time clock actually started.
133
What happens if the true owner of land that a trespasser is adversely possessing conveys to another?
The trespasser still obtains title by adverse possession, regardless of the transfer in interest.
134
What is tacking in adverse possession?
Rights to claim adverse possession can be tacked between possessors, but the periods must pass directly from one adverse possessor to another, no gaps.
135
What effect does disability play in the tolling of AP limitations?
The adverse possession time period may be tolled if the true owner is under a legal disability when the adverse possession begins.
Additionally, if another disability arises, it does not extend the tolling of limitations.
If disability occurs after possession begins, there is no tolling.
136
What is required under the statute of frauds when conveying property?
Any contract of sale of an interest in real property must be in WRITING and SIGNED by the one who is sued (charged).
The writing must include:
1) A description of the property
2) The names of the parties
3) The price or a means of determining the price ("FMV")
137
What is the doctrine of part performance?
The one exception to the Statute of Fraud which would support an action for part performance.
Requires ONLY TWO of the following:
1) Possession of the land by the purchaser
2) Paying all or part of the purchase price
3) Erecting improvements
138
What is required to satisfy part performance in Texas?
ALL THREE requirements must be met:
1) Possession of the land by the purchaser
2) Paying all or part of the purchase price
3) Erecting improvements
139
Who bears the risk of loss in a property conveyance?
Buyer bears ROL once K is signed, even if property is destroyed before closing.
Follows the doctrine of equitable conversion, even if the seller remains in possession and control.
This rule only applies if the seller is not at fault.
140
Who bears the risk of loss in TEXAS?
The risk of loss is on the person in possession at the time of the loss because Texas adopted by statute the Uniform Vendor & Purchaser Risk Act.
141
What happens if there is a death of a party before closing?
Equitable conversion preserves rights as set in the contract, and death of a party before closing does not affect them.
If seller dies before closing, buyer closes with the seller's estate. The seller's interest is PERSONAL PROPERTY.
If buyer dies before closing, seller closes with buyer's estate. The buyer's interest is REAL PROPERTY.
142
What is the warranty of marketable title?
Every land sale contract has implied warranty that, at closing, the seller will give buyer a marketable title.
Unmarketable title would be those that would bring the risk of litigation upon the buyer.
143
What defects make title unmarketable?
1) Defects in the record chain of title
2) The presence of encumbrances
3) Title acquired by adverse possession
144
What is a defect in the record chain of title?
Things such as:
1) Variations in the property description
2) An improperly executed deed
3) Evidence that a prior grantor lacked capacity to convey the property
145
What are considered "encumbrances" that make title unmarketable?
Easements, restrictive covenants, mortgages (sometimes), options to purchase, etc. that are not mentioned in the contract for the buyer to take subject to.
NOTE: Presence of zoning ordinances do not make title unmarketable, but existing violations of ordinances do make title unmarketable.
146
When is a mortgage not an encumbrance?
When the seller intends to pay the mortgage using the proceeds from the sale.
147
How might the defect of adverse possession be cured in an unmarketable title?
The defect may be cured with a judgment of title in the seller or with a quitclaim deed from the party against whom the adverse possession occurred.
The seller must be able to deliver a valid legal title on the day of closing.
148
What are the buyer's remedies if there is unmarketable title?
Buyer must notify seller and give seller reasonable time to cure the defect, even if that postpones closing.
If the problem is not corrected, buyer has three options:
1) Recission, which allows buyer to walk away
2) Sue for damages for the breach
3) Specific performance, which gives the buyer the option to take what seller can give but the price gets lowered to cover defect.
149
What is the doctrine of merger as applied to unmarketable title?
If buyer goes to closing and accepts deed without problems being cured, then due to the doctrine of merger there is no recourse against the seller based on the contract.
Any action taken from that point must then be based on what is in the deed the buyer receives.
150
When is time of the essence in a land sale contract, and what is the effect?
Even if there is a closing day specific in contract, time is NOT of the essence in land sale contracts unless the contract say so or the facts make clear that is what the parties expected.
151
When must performance be rendered if time is not of the essence?
If time is NOT of the essence, performance must be tendered within a reasonable time after the date for closing set in the contract (2 months usually reasonable)
152
What is the effect on the contract if time is of the essence but performance is not rendered in time?
The party who failed to perform on the date can no longer enforce the contract.
153
What are the remedies available for breach of a sales contract?
Damages: The measure is the difference between contract price and value of the land on the day of breach.
Liquidated Damages: The buyer's deposit can be forfeited as liquidated damages so long as it is not more than 10% of the sales price.
Specific Performance of a land sale contract is always available to both buyer and seller.
154
Are there any warranties for the physical condition of the property?
CL: A sale of land does not come with any warranties of quality or fitness when it comes to the physical condition of the property.
But there are some exceptions for new construction and resale transactions.
155
What is the liability of Seller for new construction?
1) Implied warranty of good workmanship
2) Warranty of habitability in the sale of a new home
Basically promising the quality of construction meets a certain level and is suitable for human habitation.
156
What is the liability of Seller of existing land and buildings (Resale)
Seller does NOT make any implied warranties regarding physical condition, but may have liability on other theories:
1) Seller must disclose serious defects that the seller knows of and are not obvious to the buyer.
2) Seller can't actively conceal defects
3) Seller cannot make a false statement regarding the condition of the property.
157
What are the general rules for a deed?
1) Must comply with SoF
2) Must be Lawfully Executed and Delivered ("LEAD")
3) Once deed is delivered and accepted, contract merges into deed and is destroyed, and any provisions wishing to be enforced upon must have been included in the deed itself.
158
What are the formalities for executing a deed?
A valid deed must:
1) Be in writing
2) Identify the grantor and grantee
3) Contain the property description (metes and bounds are controlling)
4) Include conveyancing language
5) Be signed by the grantor
No consideration is needed for a valid deed.
159
If the metes and bounds description of a deed state on acreage, but the actual property is bigger, what is controlling?
Metes and bounds are controlling, so the deed transferred only the metes and bounds described.
160
What is effective delivery of a deed?
Delivery of a deed does not always mean physical transfer. Legal test is solely a question of intent to pass title.
(e.g., attempting to hand over the deed, but the person never touched it)
If facts show the grantor's intent to pass title, the mere safeguarding of the paper by grantor does not show lack of delivery.
161
What effect does recording of a deed have on the delivery requirement?
Recording a deed raises the presumption of delivery, even if grantee never sees the deed and knows nothing about it.
162
What is a deed is destroyed by the grantee after delivery?
Once delivery occurs, title passes, and later returning of the deed to grantor or destroying the deed has no effect.
163
What is the effect of a written conditional delivery of a deed?
if the condition is expressly written into the deed, it can be considered as a valid delivery of a future interest
(e.g., "to A, but not until I die")
164
What is the effect of an oral condition with delivery of a deed?
If the condition is made orally at the time of delivery of the deed, disregard the oral condition.
165
What is the effect of making a delivery of a deed conditional on paying the purchase price?
This is valid provided grantor makes delivery to a third party in excel with instructions to deliver to grantee when the condition is satisfied.
Once the deed goes to the escrow agent, grantor cannot get the deed back. As long as the grantee satisfies the condition, grantee gets the property no matter what subsequent change of mind grantor has.
166
How is acceptance of a deed shown?
Acceptance of a deed by grantee is presumed unless the facts show otherwise. (only way a grantee cannot accept is to expressly reject)
167
What are the types of covenants regarding the quality of title being conveyed in a deed?
1) No promises = quitclaim
2) General warranty or warranty of quiet enjoyment against lawful claims of superior title = general warranty deed
3) Limiting liability for the grantor to claims arising only fro the grantor and not from other parties = special warranty deed
168
In TEXAS, what is the effect of a deed using the word "grants" or "conveys"?
There are automatically two present covenants impliedly included:
1) The covenant against encumbrances
2) The covenant of "no prior conveyances"
169
What are PRESENT covenants of title in a general warranty deed?
Covenants that allow the grantee to sue immediately, and are personal to the grantee and do not run with the land.
Include:
1) Covenant of seisin/Covenant of Right to Convey (interchangeable)
2) Covenant against Encumbrances
170
What is the covenant of seisin/covenant of the right to convey?
These represent the promise of the seller that seller has title and possession and can validly convey both.
171
What is the covenant against encumbrances?
Grantor promises no easements, no restrictive covenants, no liens, etc.
172
What are FUTURE covenants of title in a general warranty deed?
Not breached immediately, but later when grantee is disturbed in possession.
1) Covenant of quiet enjoyment
2) Covenant of further assurances
173
What is the Covenant of Quiet Enjoyment?
Represents the promise of the seller that seller will protect buyer against anyone who later shows up and claims title.
174
What is the Covenant of Further Assurances?
The "mop up" covenant. If seller forgot to do something to pass valid title, Seller promises to do whatever necessary (e.g., sign deed)
175
What are the damages for breach of the covenants of seisin, right to convey, quiet enjoyment, or special warranty?
Damages = Purchase price + incidental damages
Watch out for answers that would give Plaintiff full recovery!
176
What are the damages for breach of covenant against encumbrances?
Damages = cost of removal OR diminished FMV considering the easement in place.
177
What is estoppel by deed?
If A deeds property to B that A does not own, and then A later acquires title, then B will get title because grantor gave an implied covenant that title would be transferred to grantee.
BUT if there's a BFP of title from A after A acquires title, then B loses and cannot rely on estoppel by deed.
178
What is estoppel by deed called in Texas?
"Doctrine of after-acquired title"
179
If O to A, and then O to B, who has priority at common law?
A wins, because of "first in time, first in right" common law rule.
(defeated by recording statutes)
180
In Texas, how is a deed properly recorded?
If it signed and the signature is either
1) Notarized
2) Signed by at least two witnesses
181
What kind of notice does recording give?
Constructive notice
182
What is a notice statute?
Under a notice statute, a subsequent grantee who is a BFP prevails over a prior grantee who failed to record.
Requires that the BFP had no ACTUAL or CONSTRUCTIVE notice at the time of the conveyance.
The subsequent BFP is protected regardless of whether she records at all.
Statute: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value (BFP) without notice thereof, unless it is recorded."
183
What recording act does Texas have?
A NOTICE recording act.
184
What is a race-notice statute?
Under a race-notice statute, a subsequent BFP is protected only if she takes without notice and records before the prior grantee.
Ex: O to A on Jan 1. A does not record. O to B on Jan 15 for val. cons. B has no notice of the conveyance to A. A records on Jan 18. B records on Jan 20. A prevails over B because B did not record first.
Statute: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded."
185
What is a pure race statute?
Under a pure race statute, only the first to record are protected.
Notice is irrelevant. The subsequent purchaser need not be a BFP; that person can know all about the earlier sale and still win.
Statute: "No conveyance or mortgage of an interest in land is valid against any subsequent purchaser whose conveyance is first recorded."
186
What constitutes "fair value" for a subsequent purchaser to be a BFP?
In the absence of an explicit claim of fraud, any amount other than a NOMINAL amount is considered to be for value.
It is irrelevant that amount paid does not meet or come close to fair market value.
187
Who cannot be a BFP?
Heirs, devisees, or donees cannot be a BFP, and can never defeat the claim of someone who has a prior conveyance from O.
They have not given value.
188
What is the shelter rule exception?
Anyone can shelter under the rights of a BFP if a BFP conveyed the property to them (includes heirs, devisees, and donees).
189
What types of notice can defeat a subsequent purchaser? ("Without notice" in statute)
Actual Notice: If subsequent purchaser actually knew about the prior unrecorded conveyance, that person loses. (defeated by shelter rule exception)
Record Notice: A constructive notice that arises from the record. It must be recorded in the chain of title.
Inquiry Notice: Being able to examine the land, or having notice of an unrecorded transaction and the opportunity to investigate.
190
What is the effect on notice of a quitclaim deed in Texas?
Quitclaim deeds in Texas put the grantee on notice of any defects that exist in the chain of title. The grantee under a quitclaim deed cannot be a BFP.
191
What are the basics of title-searching indexes?
1) Construct chain of title by going to the Grantee index, finding the name of the grantor, and tracing their grantor back, and so on, for whatever period of time is required by the marketable title statute.
2) See if chain is strong enough by searching for any adverse conveyances in each link of the chain (i.e., any encumbrances placed at the time, or conveyances to anyone else prior to passing to the next link in the chain).
NOTE: Searcher wears "legal blinders", and does not have to look for anything a grantor may have recorded BEFORE getting title, or AFTER passing title to the next link. Only looks for what went on during period of record ownership.
NOTE: Deeds recorded outside of the chain of title are called WILD DEEDS, and do not give notice.
192
What is a mortgage, and what happens if it's not paid?
Given by a debtor (mortgagor) to a creditor (mortgagee).
Sheriff sells the land at a court-ordered foreclosure sale if mortgage isn't paid.
193
What is an absolute deed, and what effect does it have?
An absolute deed is one given with a separate promise or re-conveyance when a debt is paid.
This creates an EQUITABLE MORTGAGE that gets mortgage protection and can be foreclosed upon.
194
What is a sale/leaseback, and what effect does it have?
Landowner sells property to a buyer and then leases the property back for an extended period of time.
This transaction can be attacked as a DISGUISED MORTGAGE.
Look for: Rent payments equal to what would be due on a mortgage, option to repurchase that is much lower than would the property is worth at the time.
195
What is a deed of trust?
Given by a debtor to a third-party trustee who holds it until the loan is paid off.
If loan isn't paid, then trustee may either get the court to order a sale, or the trustee may sell the property on their own at a public auction.
Most often used in Texas. This is not an actual trust.
196
What is an installment land contract, and what happens when default occurs?
Debtor signs a contract promising to make payment and seller keeps title until loan is paid off.
Once loan is paid off, then a deed transferring legal title will be given.
If default occurs, the contract usually contains a forfeiture clause which allows the vendor to cancel the contract, keep all the money that has been paid, and take possession of the land.
197
What is an installment land contract called in Texas?
Contract for Deed
198
What is the equity of redemption?
At any time up to the foreclosure sale, debtor can redeem the property. Normally, all debtor need to pay is the amount in arrears; but if security instrument has an ACCELERATION clause, debtor has to pay off entire balance.
199
Can the right of redemption be waived?
The right of redemption CANNOT be waived in the mortgage or deed of trust, but may be done later if separate consideration is given.
Any attempt to waive the right of redemption in the security interest is known as CLOGGING the equity of redemption, and is prohibited.
200
What is the difference between the equity of redemption and the statutory right of redemption?
Equity of redemption: Operates to STOP the foreclosure sale
Statutory Right of Redemption: Lets the mortgagor get the property back AFTER the foreclosure sale.
201
Which right of redemption exists in Texas?
Only the equity of redemption, not statutory.
202
How must foreclosure be conducted?
Foreclosure must be by public auction sale, regardless of how the sale occurs, whether by court order or otherwise.
203
In TEXAS, what is the statutory criteria for conducting a valid nonjudicial sale?
Conducted for Deed of Trust (which is the preferred method for Texas)
If residential property, the debtor must be given:
1) Notice of default
2) Time to cure
Minimum time to cure is 20 days. If not cured, the debtor must also be given a notice of sale at least 21 days before the sale.
204
What interests are destroyed by foreclosure?
Foreclosures destroy all JUNIOR interests, but do not destroy senior interests.
205
What protections are afforded to holders of junior interests involved in a foreclosure sale?
They have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being destroyed, and thus they are necessary parties to any judicial foreclosure, and if they are not made party to a judicial foreclose, then their interests are not destroyed by it.
206
What happens to the proceeds of a foreclosure sale?
1) Pay the costs of the foreclosure, including expenses and attorney's fees.
2) Pay the mortgage that was foreclosed, including accrued interest
3) Pay off junior interests, in order
4) Anything left goes to mortgagor.
207
What are deficiency judgments?
Occur after foreclosure.
If a mortgage or deed of trust is foreclosed and there is not enough money to pay off the debt, the mortgagee (grantee) sues the debtor for balance due.
208
What is the deficiency judgment in Texas?
Limited to the difference between the outstanding debt and the FMV of the property at the time of foreclosure, not between the debt and the sale price.
209
What are the priority rules for security interests?
First in time, first in right, unless modified by recording statute.
210
How can the priority of a security interest be changed?
If owner does anything to get more money or increases the interest rate, then that mortgage loses its priority over junior ones, but only to the extent of the change.
211
What is the priority for mechanic's and materialmen's liens (MML)?
Can protect worker's and suppliers to workers on real property and has priority over mortgages or other liens.
212
What are the requirements to perfect statutory MMLs?
1) Affidavit must be filed with county clerk
2) List amount, names and address of relevant persons, and general statement of work done and material furnished.
3) Must give legal description of the property sought to be charged with the lien
4) Copy must be sent by certified or registered mail to the owner within 5 days of filing.
213
What determines the priority date of a perfected MML?
MMLs relate back to the commencement of construction of improvements or delivery of materials to the land on which the improvement is located, and a validly perfected lien is effective as of that date, not the date of recording.
214
What is the effect of a forfeiture clause in installment land contracts?
If a debtor misses a payment, seller can cancel the contract, keep all the money paid to date, and get the property back.
These CAN be enforced.
215
How can a mortgage be transferred by conveying property?
If mortgagor transfers title to property, mortgage just tags along, and transferee takes subject to the mortgage. Mortgagor continues to be personally liable on the note.
Unless grantee specifically ASSUMES the mortgage, grantee is not personally liable on it.
If transferee assumes mortgage, mortgagee is still liable to the mortgage as a surety.
216
Who can establish the homestead?
May be established by a family or a single adult.
Must have some form of present right to possession of the property, so a leasehold or a life estate may be a sufficient right to support a homestead claim.
217
How can a homestead be established?
1) Intent to have it as your homestead, and
2) Actual occupation or such acts of preparation that the court can conclude that you were about to occupy it.
Formal declaration NOT required, and declaring intent is insufficient.
218
How much land can be protected in a RURAL homestead?
Cannot be more than 200 acres for a family, or 100 acres for a single person.
The acres do not have to be contiguous, but all have to be used as a homestead which allows for living on part and then using the rest in support of the family or single adult.
219
What makes a homestead urban rather than rural?
1) Within the limits of a municipality
2) Served by police protection, fire protection, and at least three of the following: electric, natural gas, sewer, storm sewer, and water.
220
How much land can be protected in an URBAN homestead?
Cannot be more than 10 acres whether single or family.
The acres MUST be contiguous.
221
What protections are afforded a homestead?
Homesteads are immune from liens, except for the ones constitutionally permissible.
222
What liens are constitutionally permissible against a homestead?
1) Purchase money
2) Taxes
3) MML for improvements
4) Owelty of partition judgments
5) Refinancing of an otherwise permissible lien
6) Home equity loans and lines of credit
7) Reverse mortgages
8) Refinances of a chattel mortgage with the mortgage of land
Must have been a homestead at the time the lien was incurred.
223
What is joinder of conveyance?
All owners and spouses of owners must join in all conveyances and encumbrances on the homestead property.
An attempted conveyance of encumbrance without joinder is void.
224
What is a spouse's right of occupancy?
If there is death of the owner, a surviving spouse, even if not an owner of the property, is entitled to a right of occupancy at the time of the owner's death.
225
What are the surviving children's right of occupancy?
If there are minor children, the guardian of the minor children may request the right of occupancy. However, surviving spouses trump minor children.
This is treated like a life estate and subject to the laws of waste and the open mine doctrine.
226
How is a homestead terminated?
1) Death: if there is no surviving spouse or minor children, death will cause a homestead to cease.
2) Divorce: Does not terminate homestead for the party who continues to maintain it as a homestead.
3) Abandonment: If sufficient evidence of nonuse AND intent to cease using, then the property ceases being a homestead.
227
What are the two ways land must be supported in it present state?
LATERAL SUPPORT: A landowner has the right to land supported by the adjoining landowners, and strict liability results if land is not supported.
SUBJACENT SUPPORT: There is strict liability if surface is not supported. (E.g., holder of mineral rights strictly liable if collapse of the surface results)
228
What structures are not protected by the right to support?
Buildings built after mineral rights were severed from surface rights get no strict liability protection.
229
When is a notice of sale for foreclosure allowed to be sent?
Not until the time to cure default has passed.
230
Can a notice of default and impending foreclosure sale be combined
No. They must be contained within separate notices.
