Real Property - Essay rules

Question 1

• Fee Simple Absolute
• Fee Simple Determinable
  
  • ​Possibility of Reverter
• Fee Simple Subject to Condition Subsequent
  
  • ​Right of Re-entry
• Fee Simple Subject to Executory Interest
  
  • ​Remainderman
• Life Estate

Answer 1

FE Absolute: FSA is a PPE that does not term (unless O dies intestate w/out heirs; prop escheats to state) & gives a prsn all prop rights, incl. unimpeded rights to (1) sell or convey all or part, & (2) devise. FSA is freely A by O during life, & upon death, D & D.

FS Det: A FSD is a present FS limited by specific durational langge sch tht it termintes auto upon the happnng of a statd condition, and full prop o/ship reverts to the g/or. A FSD is freely A, D, & D, bt always sbjct to stated condition.

Possibility of Reverter: A Poss of Rev’r is a FI that arises auto in the g’or as a consequece of conveying a FSD. Upon the occ of the stated cond, the estate auto reverts to the g’or.

Question 2

• Fee Simple Absolute
• Fee Simple Determinable
  
  • ​Possibility of Reverter
• Fee Simple Subject to Condition Subsequent
  
  • ​Right of Re-entry
    
    • ​Waiver
    • SoL
• Fee Simple Subject to Executory Interest
  
  • ​Remainderman
• Life Estate

Answer 2

FSSCS: is a present FS in whch g/or reserves, thrgh conditional words, right to terminte upon happening of a stated event. The FS does not auto term. upon occurence of event, bt whn g’or acts to recover poss. Feely A by O during life, & upon death, D & D.

• Right of Re-entry: A RoRE is a FI g’or expressly reserves after granting a life estate or fsscs.
  
  • ​Failure to Assert RoRE:
    
    • Waiver: Rght to term a fsscs is D & D. Failure to assert the RoR does nt constitute a waiver.
    • The SoL limits th time a P may bring a claim to encourage resolving claims w/in a reas time, and prevent stale claims from arising after ev has been lost or facts become unclear through time passage, defective memory, death, or witness disappearance.

Question 3

• Fee Simple Absolute
• Fee Simple Determinable
  
  • ​Possibility of Reverter
• Fee Simple Subject to Condition Subsequent
  
  • ​Right of Re-entry
    
    • Waiver
    • SoL
• Fee Simple Subject to Executory Interest
  
  • ​Remainderman (WHERE DOES THIS FIT?)
• Life Estate

Answer 3

FS Sbjct to Exec Intrst: is a present FS in whch a 3P will be entitled to prop upon occ of a specified cond. Created whn G’or uses words such as “to person X, so long as/but for, … to person Y”.

• A reversion is a FI the g’or retains whn g’or tfrs less than a FSA to a 3P. (CHECK THIS IS CORRECT!)

Life Estate: is a present poss interest ltd in duration by a life.

Question 4

• Fee Simple Absolute
• Fee Simple Determinable
• Fee Simple Subject to Condition Subsequent
• Fee Simple Executory Interest
• Life Estate
• Restraints on Alienation

Answer 4

A restraint on A occurs when G’or attempts to restrict the alienability or transferability of the land.

Forfeiture restraints on alienation (g’or may term estate if conveyance made) on fee simples’s are void, unless for a limited time and reas purpose. All absolute restrictions on alienation or transferability on fee simple estates are void and unenforceable. _H,T,

3 types of restraints exist:

• Disability: all transfers are void
• Forfeiture: land is forfeited if a transfer is attempted
• Promissory Restraint: an attempted transfer breaches a covenant

Question 5

FUTURE INTERESTS

Remainder

Rule Against Perpetuities

Answer 5

A Remainder is a FI created in a g’ee that takes effect after the expiration of a prior possessory estate. A remainder can be [vested or contingent].

A vested remainder is (1) an interest not subject to any cond precedent and created in (2) an ascer grantee.

A remainder is contingent if (1) interest subject to a condition precedent or (2) unascertained taker.

Rule Against Perpetuities: No interest in prpty is valid unless it must vest, if at all, not later than 21 years after some life in being (measuring life) at the creation of the interest.

Question 6

CO-TENANCY

• JT Formation
• JT Severance
• Tenants in Common

Answer 6

JT Formation: A cnvynce of r.p. to 2> persons creates a JT whn 4 unities are present: (1) time (all intrsts were received at the same time), (2) title (all intrsts were acquired by same instrument), (3) intrst (all o/ship intrsts are equal), AND (4) possession (all intrsts have equal rights of poss).

Mst be clear express intent to create JT. A RoS means tht whn 1 JT dies his intrst in land is auto tfr’d to other JT(s).

JT Severance: JTs cn convey all or part of their indvdual intrst during their lifetimes (inter vivos) to a 3P. Gnrly, whn 1 JT unilaterally tfrs his o/ship intrst in the r.p., JT is severed and Ts thn hld prop as TiC.

[Whn a JT takes out a motg on her intrst, mtge’s effect on JT depends on jx.]

• Lien Theory Jx – U/ maj, mtg intrst is a lien, & does nt sever a JT until prop is sold at a foreclosure.
• Title Theory Jx– U/ min, a mtg intrst severs a JT upon the granting of a mtg & converts it to a TIC.

TiC: Default estate created unless express intent to create a JT or conveyance to a “h and w”. In a TIC each T has an undivided interest w/ unrestricted rights to possess th whole prop w/ no RoS. Each T cn devise or tfr his/her intrst to anyone.

[A TIC can bring an action for partition. In doing so, the ct will require an accounting b/w the TICs relating to the prpty. One TIC cannot bind another TIC to an a/ment to which they weren’t a part.]

Question 7

CO-TENANTS

Rent from Co-Tenants

Ouster

Answer 7

Rent frm C-Ts: A c-t cannot collect rents frm another c-t who is in exclusive possesion of th premises, unless (a) a/ment to contrary, or (b) c-t seeking rent ws wrongfully ousted. _H,T,

Ouster: All c-ts hve equal rights to possess entire prop. An ouster occurs when a c-t excludes another c-t from possessing prop. Party wrongfully excl. frm prop may bring an action to recover possession and dgs. [Ouster is required for a c-t to obtain title through adverse possesion]. _H,T

Question 8

Co-Tenancy

• Operating Expenses a c-t can
• Rents from Third Parties a c-t must
• Repairs

Answer 8

Op Exp: A c-t cn collect contribtion frm other c-ts for paying mre thn his portion of nec. or beneficially spent op expenses (taxes or mrtgge intrst), unless he is only 1 in phys poss of prop and his use is equal to or outweighs overpayment.

Rents from 3Ps: A c-t mst account to other c-ts for rent received frm 3Ps, but he cn deduct op expenses whn calculating net proceeds. 3P rents are divided based on o/ship intrst of each tenant.

Repairs:A c-t does nt hve a right to be reimbursed by other c-ts for repairs made to prop, even whn thse repairs are nec. H/e, maj view is tht contribution for nec. repairs cn be compelled in actions for accounting or partition. A c-t may, in some jxs, maintain a separate action for contribution, ala other c-ts have been notified of repair needs.

Question 9

LANDLORD-TENANT

• Type of Tenancy
• Valid Lease
• [Assignment | Sublease]
• [Breach of Lease | Anticipatory Repudiation]
• Tenant Defenses
• Covenant
• Waste
• Fixtures

Answer 9

A Tenancy for yrs is a LE measrd by a fixed and ascertainable amnt of time.

A Periodic Tenancy is a repetitive, ongoing LE measured by a set period of time, but with no predetermined term. date. May be created by express a/ment, implication (if rent is paid at specific periods), or by law when a tenant-for-yrs remains after termination of the period or when a lease a/ment is invalid.

[Term. Notice: B/c it auto renews, notice is required to terminate. Notice (1) must be given before the beginning of the intended last period of the periodic tenancy, and (2) is generally effectively only as of the last day of the period. The SoF does not apply to a period tenancy b/c it is for a non-fixed term. Trad view was that notice had to be sufficient to show intent; mod no writing is required for term, unless a statute requires it.]

A Tenancy at will is a LE w/out a specific term & continues until LL or T terminates. Usually created by express a/ment.

[Term Notice: Trad., either party may terminate a TatW w/out notice, but the T must be given a reas time to vacate. Modern majority, either party may terminate with notice. _H,T]

Tenancy at Sufferance (Holdover): A T who remains in poss on premises after lease expiration is a holdover T.

Question 10

LANDLORD-TENANT

• Type of Tenancy
• Valid Lease
• [Assignment | Sublease]
• [Breach of Lease | Anticipatory Repudiation]
• Landlord and Tenant Duties
• Tenant Defenses
• Covenant
• Waste
• Fixtures

Answer 10

Valid Lease: A LE is a K’ual r/ship gov’d by a lse tht contains the parties’ covents. The SoF requires a lease for > year to be in writ to be enforceable. [Gnrly, a T covenants to pay rent and not commit waste in exch. for LL delivring actual poss of, and repairing, the leasehold premises]. _H,T

SoF Exception - Part Perf: Part Perf is an exc to the SoF. A ct may enforce an a/ment whr thr hs been payment and partial perf ev’ing condct unequiv and exclusvly referrable to the K._H,T

Ass/ment: Absent cont langge, a lse is freely assigned. An ass is a complete tfr of a T’s remaining lse term. Assignee Ts are in priv of estate with the LL and liable to th LL for rent and other lease covs that run with the lease. Non-ass restrictions are valid, but narrwly construed against the LL. A n-ass provisn may be waived if LL knws of th ass and does nt object.

[Original T Rights and Liabilities]: Absent a novation, the original T in an assign/t remains in privity of K with LL, and is liable for rent and all other covenants in lse for lse duration. _H,T

Sublease: Absent cont langge, a lse can be freely sublet. A tfr for less than the entire lse duration is a sublease. Non-sublse restrictions valid, but narrowly construed against LL. A sublse may be waived if LL knws of sublease and does nt object. _H,T

Question 11

LANDLORD-TENANT

• Type of Tenancy
• Valid Lease
• [Assignment | Sublease]
• [Breach of Lease | Anticipatory Repudiation]
• Landlord and Tenant Duties
• Tenant Defenses
• Covenant
• Waste
• Fixtures

Answer 11

Bch of Lease: Promises of LL & T are gnrly indep of each other; each pty mst perf promises regardless of whether other pty perf’s. [T hs a duy to pay rent as a consequence of a lease. If a T fails to pay rent, the LL can sue for damages, and remove the T from the prop.] _H,T

Antic Rep: occurs where a promisor, prior to the time to perform arrives, unequivocally indicates s/he will not perform when the time occurs. AR gives the non-repudiating party 4 options: (1) treat the K as totally repudiated and sue imm., (2) suspend own perf. and wait until perf. is due to sue, (3) treat the rep. as an offer to rescind, and K discharged, or (4) ignore the rep. and urge perf. _H,T

Question 12

LANDLORD-TENANT

• Type of Tenancy
• Valid Lease
• [Assignment | Sublease]
• [Breach of Lease | Anticipatory Repudiation]
• Landlord and Tenant Duties
• Tenant Defenses
• Covenant
• Waste
• Fixtures

Answer 12

Possession The minority rule req the LL to deliver the legal right to possesssion. The maj rule req the LL to deliver actual poss. _H,T

Rent The promises of the LL and the T are generally independent of each other; each party must perform promises regardless of whether or not the other party performs. _H,T

Question 13

LANDLORD-TENANT

• Type of Tenancy
• Valid Lease
• [Assignment | Sublease]
• [Breach of Lease | Anticipatory Repudiation]
• Tenant Defenses: (SoF_,_ MAISE)
• Covenant
• Waste
• Fixtures

Answer 13

• Mitigation: A pty to a K hs oblgtion to use reas efforts to avoid dgs. _H,T
• Abandonment: If T fails to pay rent, and abndns premis by vacating w/out intent to return, LL may (1) retake premis, (2) ignore abndnmnt and contnue to hold T liable for rent, or (3) reenter and relet the premises. _H,T
• Implied W of Habit: With reg to resi leases, IWoH req a LL to maintain prop sch tht it is reas suited for resi use. If premis are not habitable, T may (1) refuse to pay rent, (2) remedy the defect and offset cost against rent, or (3) defend against eviction. B4 T w/holds rent or remedies defect, T usually mst notify LL of problem and give LL a reas opp to correct problem. _H,T
• Surrender: A lse may term whn, b4 expir, T surrenders the l-hold. LL accepts = T’s duty to pay rent ends; LL does nt accept = T deemed to have abandoned the lse and is liable for dgs. A LL’s acceptance must be clear, must show intent to accept the surrender. _H,T
• Quiet Enjoyment (see flashcard)

Question 14

Quiet Enjoyment

• Actual Eviction
• Constructive Eviction
  
  • Substantial Interference
    
    • [Situation 1] (If nuisance, insert here)
  • Notice
  • Vacate

Retaliatory Eviction

Answer 14

Evry lse contains an imp cov. of QE, whch is brched whn the LL, someone claiming through LL, or someone w/ sup title disrupts T’s possession. Any acts (except for temp or de minimis acts) by LL tht brch this cov. amount to an A or C eviction of T.

• Actual: If LL removs T frm premiss, totl evic terminates lse & T’s obs to pay rent.
• Constructive: If LL (1) sub interferes w/ T’s u&e of l-hold, T’s ob to pay rent is excused due to CE if T gives (2) notice and (3) vacates prop w/ reas time.

Retaliatory Eviction: A LL may nt evict a resi T for failure to pay rent as retaliation for the T reporting a housing code violation to the appropriate authorities. _H,T

Question 15

WASTE

Affirmative

Permissive

Ameliorative

Answer 15

A [LL/remainder interest] may bring suit for dmgs when a [T/LE holder] commits [(1) A (vol), (2) P (invol), or (3) A waste].

• Affirmative results from intentional or neg acts that cause a prop value decrease. _{H, T.}
  
  • Exceptions exist for exploiting minrals and timber if (1) a g’or auth exploitation at the begning of the tenancy, or (2) exploitation is nec to maintain the prop. _H,T.
• Permissive results from (1) neglect, or (2) failure to reas protect prop. _{H, T}
• Ameliorative results from acts that change or enhance prop value, w/out the conset of future interest holders. _H,T
  
  • Exceptions: Mod majority allows phys altering structures on the prop when nec to make reas use of the prop. _H,T

Question 16

Fixtures

[Trade Fixtures]

Answer 16

Fixtures: A chattel intended to be part of the land is converted from personal to real prop when it attaches to the land. The chattel is then a fixture, becomes part of the land, and passess with the land o/ship. _H,T

Trade Fixtures: are items attached to real property for carrying on a business and may be removed by a T at the lease conclusion. _H,T

Question 17

Valid Deed

• Formalities
• Delivery
• Acceptance

Answer 17

A deed trfs a r.p. intrst if it complies w/ (1) F, (2) D, & (3) A.

• Formalities A deed mst be W, ~ by Gor, ID pties, & describe land.
• Delivery Gor mst, at time of tfr, manifest intent to deliver a present prop intrst to Gee by deed. Del may be (1) completed by phys handing or mailing deed to gee/agent, or (2) implied frm words & conduct of g’or (ie, whn Gor drafts & records a deed).
  
  • Exc: Express Condition of G’ors Death: Whre thre is a properly executed & delivered deed tht provides title will not pas unitl the g’or’s death, delivery valid & creates a FI in Gee & a present life intrst for Gor.
  • [Retention of Deed by G’or] Whn g’or keeps deed, no intent to tfr is presumed. Whn g’or tfrs deed to agent, tfr treated as if g’or retained deed, even whre g’or instructs agent to deliver deed to g’ee at a future time. Until Gor’s agent delivers deed to g’ee, g’or cn demand agent ignore prior instruction and return deed to g’or.
  • [Tfr of Deed to G’ee] A deed tfr to g’ee creates a presumption g’or intends to make a present prop interest transfer. _H,T
• Acceptance is required to complete a tfr. Unless a g’ee rejects a deed, acceptance is generally presumed.

In conclusion,

Question 18

Warranty Deed

Answer 18

The g’or of a gnrl wrrnty deed guarantees 6 covnnts of title, incl. a present cov against encumb, during prop o/ship & in chain of title. The g’or of a special warranty deed guarantees the same 6 covenants of title, h/e only during prop o/ship. The covenant against encumbrances guarantees the deed contains no undisclosed encumbrances.

[Esm 1] _{<em>H, C executed and delivered to P a wrrnty deed in 2014 tht contained a cov against all encumb except for esm to WC, and no other title cov. Regardles of whthr deed ws a GWD or SWD, C deeded farm to P encumbered by B’s esm. B’s esm existed b4 and during C’s prop o/ship.</em>}

_{<em> </em>}Notice: Maj view is tht covt against encumb is brched even if g’ee knws of an encumbrance. Min view is tht thr is no brch if g’ee knws of a physical encumbrance.

Question 19

• Deed of Trust
• Mortgage
• Foreclosure
  
  • Priorities
  • Recording Acts
  • Proceeds of Sale

Answer 19

DofT: is a sec intrst in rp. Debtor is the trustor who gives a DofT to a 3P T’ee, a pty close to the lender (the ben). Shld the T’or default, lender instructs T’ee to foreclose DofT by sale.

Mortgage: A mtg is a sec intrst in rp. Debtor is the m’or; lender is the m’ee. Shld the m’or default, lender realizes the mtg’d r estate by a judicial forec sale.

Foreclosure

• Priorities : A mtg’s priority is usully det’d by time it was placed on prop. Forec does nt destroy intrst snr to intrst forec’d. Forec gnrly destroys jr intrst, bt failure to incl a jr intrst holder in a forec action preserves the pty’s intrst.
• Rec Acts prvde mech to assess priorty of intrst in rp. 3 types: R,N,R-N.​
  
  • R: U/ a pure R statte, a pty who recs 1st prevails, regardless of N.
  • N: U/ a N statte, a pty w/out act or construc N of a prior interest prevails.
  • A R-N statte req a subseq pty to take an intrst w/out N of prior intrsts, & rec first.
• Proceeds of Sale: Forec sales proceds applied in this order: (1) snr intrst, (2) sales $, L’s fees, ct $, (3) prin. & accrued intrst on forec’d loan, (4) jr intrsts in order of their priority, & (5) m’or. _{H, if P was a snr inttrst, a forec sale by D did not destroy her intrst. D had to first pay off P’s $ prom note and DoT. If P was a jr intrst, forec gnrly destroyed her intrst, but if D failed to incl her in forec action against X her intrst was preserved. P wld share in the sales proceds after sales $, L’s fees, ct $, p and a intrst on the forec’d $ loan.} **_{T, P had an interest in the foreclosure sales proceeds, regardles of whether she was a sen or jr interest. The share she resveived depended on her priority.}

Question 20

Marketable Title

• Encumbrances

​Merger

Answer 20

Marketable Title: Implied in evry lnd sale K is wrrnty to convey marktble title. MT is title reas free frm doubt in fact & law.

Encumbrances: Title nt reas free frm doubt if it contains encumbrances. Encumb incl. esm tht reduce prop value. U/ maj, an esm tht benefits the burdnd estate, and is visible or knwn to buyer, does nt render title unmarketable. An encumb excepted in K may nt be basis for finding title unmarketable. _{H, since B’s esm transferred to C whn A deeded farm to her in 2009, C transferred farm to P subject to B’s esm. In 1990, A, who owned burdndd estate, used road on B’s esm daily. During farm inspection, P observed Ben travel on road. B’s esm benefitied P’s burdndd estate, and road was visible or knwn to P. In 2013, C deeded an esm for water lines to WC. C transferred farm to P subject to WC esm. The WC esm ws nt a basis for finding title unmarketable b/c 2014 warranty deed excepted WC esm. Bs esm decreased value of farm by $5. WC’s esm increased FMV of farm by $10. P paid FMV for farm (($100 - $5 + $10 = $100).}

Merger: Covenants in a lnd sale K merge into deed at closing. In absence of fraud, seller is no longer liable on the implied warranty to convey marktble title._{H, even if C ws liable for nt cnvying MT to P, lnd sale K merged into 2014 wrrnty deed at closing. Since deed contained a cov against all encumb except for WC esm, C did nt commit fraud. T, imp wrrnty to cnvy MT merged into deed at closing.}

Question 21

• Standing
• State Action
• 10th Amendment
• 11th Amendment
• Zoning
  
  • Nonconforming Use
  • Variance
• 5th Amendment - Takings Clause
• Due Process Clause

Answer 21

• Standing & State Action
• 10A - pwrs nt grntd to FG or prhbtd to states by USCx are resrvd to states. _{H, no facts indcated the ord T adopted was not to control use of lnd for protec of the h, s, and welf of its citz. T, no 10A violation.}
• 11A … Local gvs are nt immune frm suit.
• Zoning Th state may enct stattes to control lnd use u/ 10A. A state enabling act can auth cities n counties to exercise the zon powr. _{H, assum state’s enab act auth T to exerc this zon pwr, no fcts indicated it improp adopted a zon ord. T, T could enact an ord to control the use of land.}
  
  • A NCU tht exsts at time a zon act passes can b elimin by amortiz, not at once. _{H, T adopt zo tht did _. Thgh P’s shop was a n-c use, T did not eliminate it for yrs. Ts refusal for a permit was a gradual elimination.T, P’s shop was a n-c use tht cld be elim.}
  • A PO may obtain a variance by admin action if (1) ord imposes a hardship, & (2) var will not be contrary to public welfare.

In conclusion, P could/could not obtain a variance.

• 5A-Takings (14) prohibits govt from T, PP, PU, w/out JC.
  
  • Partial - Reg of prop x comp. Diff b/w reg & taking depends on degree of govt interference. Cts apply 3-factor bal test to determine if reg is a partial taking: (1) EI, (2) extent of inter w/ po’s reas I-B expect re prop use, & (3) character of reg: deg it bens society, hw reg bal bens & burdens, & whther reg violates an O’s prop o/ship attributes.
• DPC (5/14) provids govt shall not take a p’s LLP w/out DP of the law.
  
  • PDP - Whn 1’s L or P intrst are adv affect by GA, ct asks 2 Qs’: (1) is TIP, (2) PD to P.
  • SDP guarntees fairness of lw & tht laws will be reas & not arb.
    
    • FR = SS / No FR = RBT

Question 22

Public Nuisance

Answer 22

A public nuisance is (1) an unreas interference, (2) w/ the health, safety, or prpty rights, (3) of the community. To recover, injured party must show actual damages. To constitute p.n., the nuisance must affect a considerable num. of people or an entire comm or neighborhood.

Question 23

Private Nuisance

List on own or under “Substantial interference” for a constructive eviction as per below:

Quiet Enjoyment

Actual Eviction

Constructive Eviction

Substantial Interference

Private Nuisance

Answer 23

[The situation with [_] constituted sub interference if it was p.n.]

A P.N is (1) sub and (2) unreas intrfrnce with another p’s use or enjoy of prop. Anyone with poss rights in prop may bring a N claim. Intrfrnce is subs if offensive, inconvenient, or annoying to an av reas person in the community. Intrfrnce is unreas if injury caused outweighs usefulness of D’s actions. _H,T

In conclusion, P had a p.n. claim against D.

Question 24

LIMITS ON LAND USE

Covenant

[Burden to Run] - WITH VN

[Benefit to Run] - WITV

Answer 24

A Covt is n-p intrst or promise obligating holdr to (1) do somthing (burden) or (2) refrain frm doing somthing (benefit) relating to land.

• Burd to Run: For covt burd to run, must be WITcH VN.
  
  • W To enforce a cov, a writing must satisfy the SoF. _{.<em>(If no writing, apply K law (ie, prove covt through part perf or estop)</em>}
  • I Pties intend for the rights & duties to bind sucesor in intrst (run w/ the land).
  • T n C The cov must T & C the land, which means the burd or ben must affect the p’ee & p’or as LO’s, & not merely as individs (ie, increase the land value or use to the benftd pty, or decrease the land rights or enjoyt to the burdnd pty). _H,T
  • HP The pties have priv of estate at the time the cov is imposed. _H,T
  • VP The sucesor to prop can be held to the cov (burden rns) only if title to the entire serv estate traces to the p’or. _H,T
  • N U/ the rec acts, a subsequent purchaser w/out N of a burdning cov is not bound by it. N must be construc (in chain of title) or actual. _H,T
• Benefit to Run: For cov ben to run, there must be WITc V.
  
  • VP The successor to the prop can enforce a covt (ben runs) ala the prop intrst possessed by the suc’or is at least some portion of the prop intrst held by the p’ee. _H,T,

Question 25

LIMITS ON LAND USE

Equitable Servitude

Implied Reciprocal Servitude

Answer 25

ES: For a servitude to be enforced in equity, it requires WINT. If the ES is enforced, it will allow the enforcing pty to obtain a mandatory injunction. An ES is similar to a covenant except it is enforceable in equity rather than law.

Implied Reciprocal Servitude: Enforcing an IRS requires (1) I to create a servitude on all plots of land with a common scheme apparent from the development (promise must be reciprocal), (2) negative servitude (promise to refrain from doing something), and (3) N (a,c,i) by the pty against whom enforcement of the servitude is sought.

Question 26

Defenses to Covenants, ESs, and Implied Reciprocal Servitudes (C,E,R) - CRUMbLES

(only use those that apply to the facts)

• Changed Circumstances
• Release
• Unclean Hands
• Merger
• b
• Laches (ES and IRS only)
• Equitable Estoppel
• Statute of Limitations

Answer 26

Changed Circs; If a prop restricton is no longer justfied to enfrce b/c of changes in the neighbrhod circs since the restrcton was contempltd, the restrcton will not be enfrced.

Release: CERs may terminate upon writ release.

Unclean Hands: The pty seeking relief must not have been guilty of wrongful conduct with respect to the transaction sm.

Merger: CERs may term whn the burd land & ben land merge into common o/ship under fee title.

SoL: The SoL limits the time a P may bring a claim to encorage resolvng claims w/in a reas time, & prevent stale claims frm arisng after ev has been lost or facts becme unclear through time passage, defec memory, death, or W disappearance.

Laches (ER only) The right to eq relief is cut off whn thre has been unreas delay in initatng the claim, & the delay pj the D._H,T

Eq Estoppel may bar K enforcmnt whre 1 pty reas and justifiably relies to detriment on the other’s pty’s previous acts. _H,T

Question 27

EASEMENTS

• Creation - EPINE
• Type
• Scope
• Termination

Answer 27

A non-poss land intrst that gives holder right to use someone elses land.

Creation Esm may be created by EPINE.

• Express esm arises whn it is affirmatively created by pties in w sat SoF.
  
  • [Valid Deed] | [K] | [Will] _{<em>(go through elements if not clear)</em>}
• Esm by Prescription req use tht is COAH.
• Imp: If an (1) earlier O prev used an esm on serv est, ct may find pties intended esm continue if (2) prior use ws contin, apparent, and (3) reas nec to dom land’s u&e.
• An esm by Nec req (1) severance of title to land held in common o/ship, and (2) strict necessity for esm at time of severance.
• Esm by Estop req (1) burdnd estate hlder rep’s permission (2) justifable detrimental reliance by serv estate hlder and (3) serv estate hlder suf dgs if esm unrecognized.

Question 28

Easement

• Creation
• Type
• Scope
• Termination

Answer 28

Type: An esm may be (1) appurtenant or in gross, and (2) affirm or negative.

• [Esm Appurt]: Esm are presumed App unless thre are clear contrary facts. Lnd sbjct to esm is servient estate, lnd tht benefits frm an esm is the dominant estate. An esm App is tfr’d w/ lnd to whch it relates.
• [In Gross] An esm is “in gross” if it is granted to bnfit a partic person (as opp to th land).
• [Affirm / Neg] Aff esms allow hlder to affirmatively use another’s land. Neg esms allow hlder to compel servient estate O to refrain frm using land in particular ways.

Question 29

EASEMENTS

• Creation
• Type
• Scope (depends on type of easement)
• Termination

Answer 29

Scope

• Express Terms of written grant determines scope of an express esm. Cts consider reas use & intent of the original parties to esm. Ambiguities in the language of the esm are resolved in favor of grantee.
• Pres Scope ltd to the nature & extent of the adverse use.
• Imp / Nec Scpe ltd to nature and extent of the nec, & is determined by the parties’ conduct. Cts consider (1) purpose (2) reas use changes, & (3) future foresee use.
• Estpel Cts consder reas of use & intent of original pties to the esm.

Question 30

EASEMENTS

• Creation
• Type
• Scope
• Termination (9 - CAMP WITE, BFP, Sev)

Answer 30

An esm can terminate by [CAMP WITE] . _{<em>H, non of the above situations occured. T, the easement did not terminate.</em> OR…}

• Condemnation of the serv estate terminates the esm. Some cts permit estate holder to receive compensation b/c of the condemnation.
• Abandonment whn thre is (1) intent to abandon & (2) affirmative act furthers the intent.
• Merger whn th dom & serv estates merge into common o/ship under fee title.
• Prescription if an esm holder fails to protect an esm against a trespassor for stat period, prescription may terminate the esm.
• Release whn th dom estate holder releases th intrst in writ to the serv estate holder.
• Destruction of a structure on the servient estate by natural forces terminates an easment if the easement relates to the structure.
• Termination of Necessity
• Estoppel terminates an esm when (1) servient estate holder justifiably, detrimentally relies on (2) acts or representations of burdened estate holder that the esm is abandoned, and (3) servient estate holder suffers damages if easement is not terminated.
• A BFP (1) pays val consid (2) with no notice (a,c,i) of an esm.
• Severance An attempt to convey an esm appurt separate frm th land it benefits severs the esm.

Question 31

Adverse Possession

Answer 31

AP ripens into title (o/ship) whn a person’s poss of prop is COAHE. In some jxs, AP mst pay prop taxes during the possession.

• C: Poss mst be contin & uninterrupted for stat period (20 yrs at CL).
• A: An AP gains title only to land he actually occupies.
• O & N: Poss mst be o&n such tht a reas true O will be aware of claim.
• Hostile: AP mst possess land w/out O’s permission & intend to claim land as his own agaisnt claims of others.
• Exclusive: Poss cannot be shared with the true owner.
• Property Taxes: In some jx, AP mst pay prop taxes during possession.

Question 32

Lateral Support

• Strict Liability
• Negligence

Answer 32

A LO has right to hve her land suprted by adjoining land. Whn excavtions cause loss of supp to adjoining land in its natural state, a LO is strictly liable for dgs. H/e, whn excavtions cause loss of supp to adjoining land that has been improved, a LO is only liable if he was neg in excavtions.

Strictly Liable _H,T

Negligence _{H, D owed <strong>DoC </strong>to P b/c P was a <strong>foresee p in ZoD</strong> w/ [shop that adjed lnd]. The <strong>SoC</strong> was for D to act with <strong>reas care u/ the circs</strong> to [not excvte in man tht contrib to collapse of adjoining land]. Whn Y complained to X … did nothing, thus<strong> condct fell below SoC b/c reas pru prsn wld hve</strong> … Thre ws <strong>actual </strong>cause b/c <strong>but for</strong> D’s [conduct]… D’s brch ws <strong>prox </strong>cause of P’s dgs b/c it ws fores tht if contin to _, shop would collapse. <strong>No intervening evnts sev the causal conction b/w D’s acts and P’as dgs</strong>. P <strong>suffered prop dgs</strong> when shop collapsed. Thus, D was negligent.}

In conclusion, P had a lateral suport claim against D based on neg.

Question 33

Damages

• Compensatory Damages
• Punitive Damages
• Nominal Damages

Answer 33

Damages

• Compensatory Dgs
  
  • [Property Dmg]: The measure of dmg to prop is the (1) reas cost of repair, or (2) FMV at the time of an accident, if the prop is nearly destroyed.
  • [Private Nuisance] Dgs incl. any depreciation in value of prop, and resulting harm, incl personal injury and harm to prop.
• Punitive Dgs: A P may recov p.d. if clear & convin ev est the D acted w and w, reck, or with malice.
• Nominal Dgs: are awardd to acknowldge a wrng whre P has no actual dmg.

Question 34

Equitable Estoppel

Answer 34

EE may bar enforcement of a K where one pty reas & justifiably relies to his/her detriment on the other pty’s previous conduct. _{H, when T gave L the key and said “”, L took the key and said “”. Based on L’s response, T stopped paying rent and never returned. T reas and just relied on L’s response. Thus, L was estopped to deny her response to T in allowing her ti terminate the lease.}