Real Property [Highly Tested Rules]

Question 1

What is adverse possession?

Answer 1

Adverse possession allows someone in continuous possession of real property owned by another to acquire title to the property, if certain requirements are met
* Title by adverse possession results from the operation of the statute of limitations for ejectment (a civil action to recover the possession of real property wrongfully dispossessed); if the owner does not take legal action to eject the adverse possessor within the statute of limitations, the owner is thereafter barred from bringing suit for ejectment

NOTE: Title to government-owned land and land registered under a Torrens system cannot be acquired by adverse possession

Question 2

What is required to establish title by adverse possession?

Answer 2

To establish title by adverse possession, the possessor must show (1) actual and exclusive possession that is (2) open and notorious, (3) hostile, and (4) continuous for the duration of the statutory period for an ejectment action

Question 3

What is “actual” possession for purposes of establishing title by adverse possession?

Answer 3

As a general rule, the adverse possessor will gain title only to the land she actually occupies because the true owner must have notice of the extent of the adverse possessor’s claim
* Actual possession of a portion of a unitary tract of land is sufficient to acquire title to the entire tract as long as there is (1) a reasonable proportion between the portion actually possessed and the entirety of the tract and (2) the possessor has color of title to the entire tract (i.e., a document purports to give the possessor title, but for reasons not apparent from its face does not)

Question 4

What is “exclusive” possession for purposes of establishing title by adverse possession?

Answer 4

“Exclusive” possession means that the adverse possessor is not sharing possession with the true owner or the public at large

Question 5

What is “open and notorious” possession for purposes of establishing title by adverse possession?

Answer 5

Possession is “open and notorious” when it is the kind of use the usual owner would make of the land
* The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring

Question 6

What is “hostile” possession for purposes of establishing title by adverse possession?

Answer 6

The adverse possessor’s occuption of the property is hostile if the possessor does not have the true owner’s permission to be on the property
* If the possessor enters with permission of the true owner, the possession does not become adverse until the possessor communicates hostility to the true owner by (1) explicit notification, (2) refusing to permit the true owner to enter the land or (3) other acts inconsistent with the original permission
* Possession or use by one co-tenant is not hostile unless the co-tenant ousts the others or makes an explicit declaration that he is claiming exclusive dominion over the property

Question 7

What is “continuous” possession for purposes of establishing title by adverse possession?

Answer 7

The adverse claimant’s possession must be continuous throughout the statutory period for bringing an ejectment action, which requires only the degree of occupancy and use that the average owner would make of the property (e.g., possession of a summer house only requires continuous use every summer)
* Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by her predecessor by “tacking” their periods of adverse possession together

Question 8

What are the requirements of an enforceable real estate contract?

Answer 8

A real estate contract generally must comply with the Statute of Frauds to be enforceable, which requires the contract to:
1. be in writing;
2. be signed by the party to be bound;
3. identify the parties;
4. sufficiently describe the property; and
5. include the price or a means of determining the price

EXCEPTION:
A buyer can seek to enforce an oral real estate contract by specific performance if the terms of the agreement are sufficiently definite and certain, and the buyer can prove at least TWO of the following three actions:
1. the buyer has taken possession of the property
2. the buyer has paid the purchase price or a significant portion of the purchase price
3. the buyer has made substantial improvements to the property

Question 9

What is the warranty of marketable title?

Answer 9

Every real estate contract contains an implied covenant that the seller will provide marketable title at closing, which means title reasonably free from doubt and the threat of litigation (e.g., defects in chain of title, encumbrances, zoning violations)

Question 10

What are common defects that render title unmarketable?

Answer 10

1. Defects in record chain of title (most often when title is acquired by adverse possession)
2. Mortgages, liens, easements, restrictive covenants, significant encroachments and options to purchase
3. Existing zoning violations (but NOT mere zoning restrictions)
4. Future interests held by unborn or unascertained persons

Question 11

What are a buyer’s remedies if title is unmarketable?

Answer 11

The buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects, but if the seller fails to cure the defects, the buyer’s remedies include:
1. Rescission
2. Damages (difference between fair market value and contract price plus incidental damages)
3. Specific performance with abatement of the purchase price
4. Quiet title action

Question 12

What is a deed?

Answer 12

A deed is a document that passes legal title to property from the grantor to the grantee when it is:
1. Lawfully executed;
2. Delivered; and
3. Accepted

Question 13

What are the requirements of a valid deed?

Answer 13

To be valid, a deed must:
1. be in a writing that is signed by the grantor;
2. identify the grantor AND grantee (if the deed is delivered with the identity of the grantee left blank, a court will presume that the person taking delivery has authority to fill in the name of the grantee (and if she does, the deed is valid)
3. unambiguously describe the property conveyed (a description is sufficient if it provides a “good lead” as to the identity of the property)
4. include words evidencing an intent to transfer the property (e.g., “grant”)

NOTE: Consideration is NOT required

Question 14

When is a deed properly delivered?

Answer 14

A deed is not effective to transfer an interest in real property unless it has been delivered, which is satisfied by words or conduct evidencing the grantor’s intent that the deed have present operative effect (i.e, that title pass immediately and irrevocably, even though the right of possession may be posted until some future time)
* Physical transfer of a deed is NOT necessary for a valid delivery
* Parol evidence is admissible to prove the grantor’s intent, but it is NOT admissible to show that delivery was subject to a condition
* A strong presumption of the grantor’s intent to deliver the deed is created when (1) the deed is recorded or (2) the grantor physically delivers the deed to the grantee
* A deed is constructively delivered when the grantor gives the deed to a third party who is an agent of the grantee

Question 15

If a deed is absolute on its face but is delivered to the grantee with an oral condition, what is the result?

Answer 15

• Traditional View: The condition is NOT enforced and the delivery becomes absolute
• Growing Minority View: The condition is ENFORCEABLE

Question 16

If a deed contains an express provision that title will not pass until the grantor’s death, what is the result?

Answer 16

The deed creates a present posessory life estate in the grantor, and a future interest (an executory interest) in the grantee

Question 17

If the grantor delivers an executed deed to a third party, with instructions that the deed be delivered to the grantee once certain conditions are met, what is the result?

Answer 17

• If the third party (escrow agent) is given written instructions, a valid conditional delivery has occurred
• If the escrow agent is given oral instructions, the grantor may change the instructions and recover the deed prior to satisfaction of the conditions UNLESS there is a written contract to convey

Question 18

When is a deed properly accepted?

Answer 18

In most states, acceptance is presumed if the conveyance is beneficial to the grantee (whether or not the grantee knows of it)
* If a grantee expressly rejects the deed, delivery is defeated and the deed is ineffective to pass title

Question 19

What are the present covenants for title?

Answer 19

1. The covenant of seisin (the grantor has the interest she purports to convey)
2. The covenant of the right to convey (the grantor has the power and authority to make the grant)
3. The covenant against encumbrances (there are neither visible nor invisible encumbrances against the title or interest conveyed)

Question 20

When are present covenants for title breached (if at all)?

Answer 20

Present covenants for title are breached, if ever, at the time the deed is delivered

Question 21

What are the future covenants for title?

Answer 21

1. The covenant for quiet enjoyment (the grantor promises that the grantee will not be disturbed in possession by a third party’s lawful claim of title)
2. The covenant of warranty (the grantor promises to defend against reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title)
3. The covenant for further assurances (the grantor promises to do whatever is needed to perfect grantee’s title if it later turns out to be imperfect)

Question 22

When are future covenants for title breached (if ever)?

Answer 22

Future covenants for title are breached, if ever, when the grantee is disturbed in possession

Question 23

What is estoppel by deed?

Answer 23

If a grantor purports to convey an interest in property that she does NOT own at the time of conveyance, her subsequent acquisition of title to the property will automatically inure to the benefit of the grantee

Question 24

What is a joint tenancy?

Answer 24

A joint tenancy is a concurrent estate owned by two or more joint tenants with equal shares and the right of survivorship

Question 25

What is required to create a joint tenancy?

“T-TIPS”

Answer 25

A joint tenancy requires the four unities and an express right of survivorship
1. Time: Interests created at the same time
2. Title: Interests taken by the same title
3. Interests: Identical, equal interests
4. Possession: Same right to possession of the whole estate
5. Survivorship: Conveyance must clearly express the right of survivorship

Question 26

How can a joint tenancy by severed?

Answer 26

A joint tenancy will be severed (terminated) under the following circumstances:
1. Inter Vivos Conveyance by One Tenant: An inter vivos conveyance by one joint tenant of her undivided interest destroys the joint tenancy (even secret conveyances), and the transferee takes the interest as a tenant in common
> Two Joint Tenants: Both the remaining tenant and transferee hold the property as tenants in common
> Three or More Joint Tenants: The transferee takes the interest as a tenant in common, but the remaining joint tenants continue to have a joint tenancy with each other
2. Contract to Convey by One Tenant: In most states, a severance also results where one joint tenant executes a valid contract to convey her interest to another because it is treated as an effective transfer of an equitable interest
3. Partition: By voluntary agreement or judicial action (if in the best interest of all parties), the property may be physically divided or ordered sold and the proceeds distributed
4. Mortgage (“Title Theory” States): In the minority of states that regard a mortgage as a transfer of title, a joint tenant’s execution of a mortgage on her interest destroys the unity of title and severs the joint tenancy
5. Lease (Traditional View): Under the traditional common law view, a joint tenancy is severed when one joint tenant leases her interest (although there is a split in authority)

NOTE: A testamentary disposition of a joint tenancy interest in a will does NOT sever the joint tenancy because, at death, the testator’s interest vanishes due to the right of survivorship

Question 27

What is a tenancy in common?

Answer 27

A tenancy in common is a concurrent estate owned by two or more persons with no right of survivorship

1. Each co-tenant has an equal right to possession of the entire property
2. Equal shares are presumed but NOT required
3. Tenant in common interests are alienable, descendible and devisable

NOTE: A conveyance to two or more persons, without more, is presumed to create a tenancy in common

Question 28

What is a tenancy by the entirety?

Answer 28

A tenancy by the entirety is a marital estate akin to a joint tenancy between spouses

1. Not recognized in community property states
2. Neither tenant can unilaterally convey their share, encumber the entire property or break the right of survivorship
3. May only be severed by divorce, death, mutual agreement, or execution by a joint creditor of BOTH spouses (a creditor of one spouse cannot execute)
   > On divorce, the tenancy by the entirety becomes a tenancy in common

Question 29

What are the rights and obligations of co-tenants with respect to possession?

Answer 29

Each co-tenant has the right to possess all portions of the property, but no co-tenant has the right to exclusively possess any part of the property
* An ouster is committed when one co-tenant wrongfully excludes another co-tenant from possession of the entirety or any part of the property
* An ousted co-tenant may bring an ejectment action to regain possession and recover damages equal to the fair rental value of the property for the duration of the period during which they were wrongfully deprived of possession

Question 30

What are the rights and obligations of co-tenants with respect to rents and profits?

Answer 30

A co-tenant in possession does NOT need to share profits obtained from her use of the property with co-tenants out of possession, nor reimburse them for the rental value of her use (absent an ouster or agreement to the contrary) BUT must share (1) rents from third parties and (2) profits derived from a use of the land that reduces its value (e.g., mining, timber)
* Additionally, an ousted co-tenant is entitled to receive his share of the fair rental value of the property for the time he was wrongfully deprived of possession

Question 31

What are the rights and obligations of co-tenants with respect to repairs and improvements?

Answer 31

A co-tenant can seek contribution from the other co-tenants of their proportionate share of expenses for reasonable, necessary repairs (provided they were given notice of the need for the repairs)
* A co-tenant has NO right to contribution for improvements made by one co-tenant

Question 32

What are the rights and obligations of co-tenants with respect to carrying costs?

Answer 32

Co-tenants are responsible for their proportionate share of carrying costs, such as mortgage payments, taxes and assessments

Question 33

What are the rights and obligations of co-tenants with respect to waste?

Answer 33

Co-tenants must not commit waste, and a co-tenant may bring an action for waste against another co-tenant
* Affirmative (Voluntary) waste is actual, overt conduct that causes a drop in the value of the property
* Permissive waste occurs when a tenant fails to comply with their duties to preserve the land and structures in a reasonable state of repair or to reasonably protect the land
* Ameliorative waste occurs when a tenant makes a unilateral change that increases the value of the property

Question 34

What are the rights and obligations of co-tenants with respect to encumbrances?

Answer 34

A co-tenant may encumber his own share of the property with a loan or judgment, but may NOT encumber the share of his co-tenant(s)

Question 35

What is a tenancy for years?

Answer 35

A tenancy for years (or “term of years”) is a lease for a fixed, determined period of time

NOTE: A lease for a term greater than one year must be in writing to be enforceable under the Statute of Frauds

Question 36

How is a tenancy for years terminated?

Answer 36

A tenancy for years terminates automatically at its termination date
* In most leases, the landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches any of the lease’s covenants
* A tenancy for years may also terminate if the tenant surrenders the tenancy and the landlord accepts

Question 37

What is a periodic tenancy?

Answer 37

A periodic tenancy is a lease that continues for successive intervals (e.g., month to month) until either the landlord or tenant gives proper notice of termination

Question 38

How is a periodic tenancy created?

Answer 38

A periodic tenancy can be created:
1. expressly by agreement; or
2. by implication when:
(i) no duration is specified, but rent is paid at set intervals,
(iii) a lease violates the Statute of Frauds (creates implied periodic tenancy, measured by the way rent is tendered), or
(iii) a landlord elects to hold over a tenant who has wrongfully remained in possession past the conclusion of a residential lease (creates implied periodic tenancy, measured by the way rent is tendered)

Question 39

How is a periodic tenancy terminated?

Answer 39

Notice of termination (usually written) must be given because a periodic tenancy is automatically renewed absent proper notice of termination
* At common law, notice must be at least equal to the length of the period itself (but a year-to-year lease only requires six months’ notice)
* Usually, the notice also must be timed to terminate the lease at the end of a period

Question 40

What is a tenancy at will?

Answer 40

A tenancy at will is a lease of no fixed period of duration and terminable at the will of either party

Question 41

How is a tenancy at will created?

Answer 41

Generally, a tenancy at will must be created by an express agreement that the lease can be terminated at any time
* Otherwise, the payment of regular rent will cause a court to treat the tenancy as an implied periodic tenancy

Question 42

How is a tenancy at will terminated?

Answer 42

In theory, a tenancy at will can be terminated by either party at any time, but most states require notice and a reasonable time to quit (i.e., vacate)

Question 43

What is a tenancy at sufferance?

Answer 43

A tenancy at sufferance is created when a tenant wrongfully holds over, meaning they remain in possession past the expiration of the lease
* A tenancy at sufferance lasts only until the landlord elects to either:
(i) evict the tenant; or
(ii) hold the tenant to a new periodic tenancy (measured by the way rent was computed under the lease that ended)
* No notice of termination is required

Question 44

Landlord & Tenant:
Dependence of Lease Covenants

Answer 44

Common Law: At common law, covenants in a lease were independent–if one party breached a lease covenant, the nonbreaching party could recover damages for the breach but the lease endured

Modern View: Under the modern view, many lease covenants are considered dependent such that the nonbreaching party can terminate the lease and/or seek damages upon breach of a covenant

Question 45

What is a tenant’s duty to repair when the lease is silent about the tenant’s repair obligations?

Answer 45

When a lease is silent about a tenant’s repair obligations, the tenant must maintain the premises in reasonably good repair but is NOT reponsible for ordinary wear and tear
* A tenant’s duty to repair is linked to the doctrine of waste; a tenant cannot commit waste on the leased premises
* A tenant is liable to the landlord for “voluntary” waste, which results when the tenant intentionally or negligently damages the premises
* A tenant is liable to the landlord for “permissive” waste, which results when the tenant fails to maintain the premises in reasonably good repair
* A tenant is not permitted to make substantial alterations to leased premises, even if the alteration increases the value of the property (i.e., “ameliorative” waste), and is liable to the landlord for the cost of restoration
> Modern Exception: Permits the tenant to make a change if it:
(i) increases the value of the premises;
(ii) is performed by a long-term tenant (e.g., 25 years); and
(iii) reflects a change in the nature and character of the neighborhood

Question 46

What is a tenant’s duty to repair when they have expressly covenanted in the lease to maintain the property in good condition?

Answer 46

• If a residential tenant covenants to repair, the landlord usually remains obligated to repair (except for damages caused by the tenant) under the non-waivable implied warranty of habitability
• A commercial tenant’s covenant to repair is enforceable, and a landlord may be awarded damages for breach based on the property’s condition when the lease terminates compared with its condition when the lease commenced

Question 47

What are a landlord’s remedies when a tenant breaches his duty to pay rent and remains in possession of the leased premises?

Answer 47

When a tenant is in possession of the leased premises and fails to pay rent, the landlord can either:
1. initiate proceedings to evict the tenant under the applicable state’s unlawful detainer statute; or
2. allow the tenant to remain on the premises and sue for unpaid rent due

Question 48

What is an abandonment of a leasehold?

Answer 48

When the tenant unjustifiably vacates the premises without the intent to return prior to the expiration of the lease, the tenant has abandoned the leasehold

Question 49

What are a landlord’s remedies when a tenant breaches his duty to pay rent and has abandoned the leased premises?

Answer 49

When a tenant fails to pay rent and has abandoned the premises, the landlord can:
1. treat the tenant’s abandonment as an implicit offer of surrender and accept the surrender, thereby ending the lease;
2. ignore the abandonment and hold the tenant responsible for the rent due for the remaining term of the lease (only available in a MINORITY of states); or
3. re-let the premises on the tenant’s behalf, and hold the tenant liable for any deficiency (i.e., mitigate damages)

Question 50

What is the implied covenant of quiet enjoyment?

Answer 50

Every residential and commercial lease includes an implied covenant of quiet enjoyment, which provides that a tenant has a right to quiet use and enjoyment of the leased premises, without interference from the landlord or a paramount title holder (e.g., a mortgagee who forecloses)

Question 51

When does a landlord breach the implied covenant of quiet enjoyment?

Answer 51

The implied covenant of quiet enjoyment is breached when a tenant is (1) actually evicted, (2) partially evicted, or (3) constructively evicted

Question 52

What is constructive eviction?

Answer 52

Constructive eviction occurs when a landlord’s breach of duty renders the leased premises unsuitable for occupancy

Question 53

What is required to establish a claim for constructive eviction?

Answer 53

To establish a claim for constructive eviction, the tenant must prove:
1. the landlord, or persons acting for him, breached a duty to the tenant;
2. the breach substantially and materially deprived the tenant of her use and enjoyment of the premises;
3. the tenant gave the landlord notice and a reasonable time to repair; and
4. after such reasonable time, the tenant vacated the premises

Question 54

What remedies are available to a tenant who has been constructively evicted?

Answer 54

A tenant who has been constructively evicted may (1) terminate the lease, thereby relieving the tenant of her duty to pay rent from the date she vacated the premises, and (2) seek damages

Question 55

What is the implied warranty of habitability?

Answer 55

The implied warranty of habitability is a covenant implied in residential leases, which provides that the leased premises must be fit for human habitation
* Applies to residential leases only; NOT commercial leases
* This warranty is nonwaivable

Question 56

What are the tenant’s options when a landlord breaches the implied warranty of habitability?

Answer 56

1. Terminate the lease and move out;
2. Make reasonable repairs and deduct the cost from future rent;
3. Pay reduced rent or withhold rent until a court determines fair rental value; or
4. Remain in possession, pay full rent, and affirmatively seek damages

Question 57

Are lease covenants restricting assignments and subleases enforceable?

Answer 57

Lease covenants restricting assignments and subleases are enforceable but strictly construed against the landlord
* A valid covenant against assignment is considered waived if the landlord was aware of the assignment but did not object
* Once a landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by the tenant UNLESS the landlord expressly reserves the right

Question 58

When does a lease covenant “run with the land”?

Answer 58

A covenant “runs with the land” if the original contracting parties so intended, and if the covenant “touches and concerns” the land (i.e, it benefits and burdens the parties with respect to their interests in the property)

Question 59

When does a landlord have a duty to repair or make safe the leased premises?

Answer 59

At common law, a landlord had no duty to make leased premises safe

EXCEPTIONS:
1. Common Areas: A landlord has a duty of reasonable care in maintaining all common areas
2. Latent Defects: A landlord must warn a tenant of hidden defects (dangerous conditions that the tenant could not discover by reasonable inspection) of which the landlord has knowledge or reason to know
3. Assumption of Repairs: If the landlord undertakes repairs, he must complete them with reasonable care
4. Public Use Rule: A landlord who leases public space, and who should know, because of the significant nature of the defect and short length of the lease, that a tenant will not repair it, is liable for any defect that causes injury to members of the public
5. Short-Term Lease of Furnished Dwelling: A landlord who rents a fully furnished premises for a short period is STRICTLY LIABLE for any defective condition that proximately injures a tenant

“CLAPS” – Common Areas, Latent Defects, Assumption of Repairs, Public Use, Short-Term Lease

Question 60

What is an easement?

Answer 60

An easement is a nonpossessory property interest that entitles its holder to use the land of another for a specified purpose

EXAMPLES:
* The right to lay utility lines on another’s land
* The right of way over another’s land
* The right to tap into a neighbor’s drain

Question 61

What is an affirmative easement?

Answer 61

An affirmative easement entitles the holder to do something on servient land (i.e., the land that is burdened by the easement)

Question 62

What is a negative easement?

Answer 62

A negative easement entitles the holder to prevent the servient landowner from doing something that would otherwise be permissible on their land

Courts historically recognized negative easements only for:
1. Light
2. Air
3. Subjacent or lateral support
4. Stream water from an artificial flow

NOTE: A minority of states also allow a negative easement for scenic view

Question 63

What is an easement appurtenant?

Answer 63

An easement appurtenant involves two parcels of land and benefits the holder of the easement in the physical use or enjoyment of his own land
* Dominant Estate: The parcel of land benefited by the easement
* Servient Estate: The parcel of land that bears the burden of the easement (and provides the benefit to the dominant estate)

Question 64

What is an easement in gross?

Answer 64

An easement in gross confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land
* Servient land is burdened by the easement, but there is no dominant estate deriving a benefit

EXAMPLES:
* The right to place a billboard on another’s lot
* The right to swim in another’s pond
* The utility company’s right to lay power lines on another’s lot

Question 65

What are the ways of creating an easement?

Answer 65

An easement can be created by:
1. Prescription
2. Implication
3. Necessity
4. Grant
5. Express Reservation

“PINGER”

Question 66

When is an easement by necessity created?

Answer 66

An easement by necessity will be implied when a landowner conveys a portion of her land with no way out except over some part of the grantor’s remaining land
* The owner of the servient estate has the right to locate the easement, provided the location is reasonably convenient

Question 67

What is required to create an easement by grant?

Answer 67

Because an easement is an interest in land, the Statute of Fraud requires an easement to be memorialized in a writing that is signed by the grantor (the owner of the servient estate) UNLESS its duration is less than one year

An easement can be created by conveyance, but a grant of an easement must comply with all the formal requirements of a deed
* An easement is presumed to be of perpetual duration unless the grant specifically limits the interest (e.g., for 10 years, for life)

Question 68

What is required to create an easement by express reservation?

Answer 68

An easement by express reservation arises when a landowner conveys title but reserves the right to continue to use the tract for a special purpose after the conveyance

NOTE: Under the majority view, the easement can be reserved only for the grantor; an attempt to reserve an easement for anyone else is void

Question 69

What is required to create an easement by prescription?

Answer 69

Acquiring an easement by prescription is analogous to acquiring property by adverse possession

REQUIREMENTS: To acquire a prescriptive easement, there must be:
1. Continuous and uninterrupted use for the statutory period;
2. Open and notorious use (must be discoverable upon inspection);
3. Actual use (unlike adverse possession, the use need not be exclusive); and
4. Hostile (without the servient landowner’s consent)

Question 70

When is an easement implied by prior use?

Answer 70

An easement may be implied from preexisting use (a “quasi-easement”) when:
1. the dominant and servient estates were originally one parcel of land with common ownership;
2. the land was severed into more than one parcel;
3. prior to the severance, a use existed on the servient parcel that is reasonably necessary for the enjoyment of the dominant parcel; and
4. a court determines that the parties intended the use to continue after division of the property

Question 71

When is an easement implied when lots are sold in a subdivision?

Answer 71

When lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets in order to gain access to their lots

Question 72

When is an easement appurtenant transferable?

Answer 72

An easement appurtenant passes automatically with transfers of the dominant estate, regardless of whether it is mentioned in the conveyance
* The burden of the easement appurtenant also passes automatically with the servient estate, UNLESS the new owner is a bona fide purchaser without notice of the easement

Question 73

When is an easement in gross transferable?

Answer 73

An easement in gross is NOT transferable UNLESS it is for commercial purposes

Question 74

What is the scope of an easement?

Answer 74

The scope of an easement is determined by the terms of the grant or conditions that created it
* In the absence of specific limitations, courts assume that an easement was intended to meet both present and future needs of the dominant estate

Question 75

What happens when the holder of an easement exceeds its legal scope?

Answer 75

When the owner of an easement uses it in a way that exceeds its legal scope, the easement is said to be surcharged
* The excess use does not terminate the easement or give the servient landowner a power of termination, but the servient landowner can seek an injunction of the excess use, and possibly damages if the servient estate is harmed

Question 76

What are the ways an easement can be terminated?

Answer 76

An easement by terminated by:
1. Estoppel
2. Necessity
3. Destruction
4. Condemnation
5. Release
6. Abandonment
7. Merger
8. Prescription
9. Stated Conditions

“END CRAMPS”

Question 77

When does an easement terminate by estoppel?

Answer 77

When the servient owner materially changes their position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced, the easement terminates by estoppel

Question 78

When does an easement by necessity terminate?

Answer 78

Easements by necessity end as soon as the necessity ends

Question 79

When does an easement terminate by destruction?

Answer 79

Destruction of the servient estate (other than through the willful conduct of its owner) will terminate the easement

Question 80

When does an easement terminate by condemnation?

Answer 80

Condemnation of the servient estate by eminent domain will terminate the easement (courts are split as to whether easement holders are entitled to compensation)

Question 81

When does an easement terminate by release?

Answer 81

A release given by the easement holder to the servient land owner will terminate the easement, but it must be executed with all formalities required for a valid creation of an easement

Question 82

When does an easement terminate by abandonment?

Answer 82

When an easement holder shows by physical action an intent to never use the easement again, it will terminate (mere nonuse or words are insufficient)

Question 83

When does an easement terminate by merger?

Answer 83

An easement is extinguished when title to both the dominant and servient estates become vested in the same person

Question 84

When does an easement terminate by prescription?

Answer 84

An easement may be extinguished where the servient owner interferes with it in accordance with the principles of prescription (continuous interference, open and notorious, actual and hostile)

Question 85

When does an easement terminate by stated conditions?

Answer 85

An easement will terminate in accordance with its stated conditions

Question 86

What is a real covenant?

Answer 86

A real covenant is a written promise to do or not do something related to land

Real covenants can be negative or affirmative:
* Negative Covenants: A negative covenant, also known as a restrictive covenant, is a promise to refrain from doing something related to land
* Affirmative Covenants: An affirmative covenant is a promise to do something related to land

Question 87

What is the remedy for breach of a real covenant?

Answer 87

A breach of a real covenant generally is remedied by an award of money damages
* If equitable relief (e.g., an injunction) is sought, the promise may be enforced as an equitable servitude

Question 88

What are the requirements for the BURDEN of a real covenant to run with the land?

Answer 88

If the following requirements are met, any successor in interest to the SERVIENT estate will be bound by the BURDEN of the covenant:
1. Writing: The original promise must have been in writing
2. Intent: The original covenanting parties must have intended that the covenant would run
3. Touch and Concern: The covenant must “touch and concern” the land
4. Horizontal Privity: Refers to the nexus between the original covenanting parties and requires that the two shared some interest in the land independent of the covenant (e.g., grantor-grantee, landlord-tenant, mortgagor-mortgagee)
5. Vertical Privity: Requires that the successor in interest to the original covenanting party hold the entire durational interest held by the covenanting party at the time she made the covenant (vertical privity is absent when the successor acquired their interest through adverse possession)
6. Notice: The successor must have had notice of the covenant at the time she took her interest (actual, inquiry or record notice)

“WITCH VaN” – Writing, Intent, Touch & Concern, Horizontal Privity, Vertical Privity, Notice

Question 89

When does the burden of an affirmative covenant “touch and concern” the land?

Answer 89

The burden of an affirmative covenant touches and concerns the land if it requires the holder of the servient estate to do something that increases their obligations in connection with the land

Question 90

When does the burden of a negative covenant “touch and concern” the land?

Answer 90

The burden of a negative covenant touches and concerns the land if it restricts the holder of the servient estate in their use of that parcel of land

Question 91

What are the requirements for the BENEFIT of a real covenant to run with the land?

Answer 91

If the following requirements are met, any successor in interest to the DOMINANT estate will be able to enjoy the BENEFIT of the covenant:
1. Writing: The original promise must have been in writing
2. Intent: The original covenanting parties must have intended that the benefit would run
3. Touch and Concern: The covenant must “touch and concern” the land, meaning that the promised performance must BENEFIT the original covenanting party and her successors in their use and enjoyment of the benefited land
4. Vertical Privity: The benefit of a covenant runs to the assignees of the original estate or of any lesser estate (e.g., a life estate)

“What Is The Common Value”

Question 92

How can a real covenant be terminated?

Answer 92

A real covenant can be terminated by:
1. Destruction
2. Release
3. Estoppel
4. Abandonment
5. Merger
6. Condemnation
7. Changed Conditions (conditions have changed so significantly that the purpose of the covenant is impossible to achieve)

“DREAM Chocolate Chip Cookies”

Question 93

What is an equitable servitude?

Answer 93

An equitable servitude is a covenant that, regardless of whether it runs with the land at law, EQUITY will enforce against the successors of the burdened land UNLESS the successor is a bona fide purchaser (i.e., a subsequent purchaser for value without notice of the covenant)

NOTE: If a plaintiff wants an injunction or specific performance, they may show that the covenant qualifies as an equitable servitude

Question 94

How are equitable servitudes created?

Answer 94

Generally, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds
* EXCEPTION: Common scheme doctrine (implied reciprocal negative servitudes)

Question 95

What is the common scheme doctrine?

Answer 95

When a developer subdivides land into several parcels and some of the deeds contain negative covenants while others do not, negative covenants or equitable servitudes binding all of the parcels in the subdivision may be implied under the “common scheme” doctrine (or doctrine of “reciprocal negative servitudes”)

NOTE: This doctrine does NOT apply to affirmative covenants

Question 96

What is required to establish an equitable servitude under the common scheme doctrine?

Answer 96

The following requirements must be satisfied to establish an equitable servitude under the common scheme doctrine:
1. at the time that sales of parcels in the subdivision began, the developer had a plan that all parcels in the subdivision be developed within the terms of the negative covenant (may be evidenced by a recorded plat, a general pattern of prior restrictions or by oral representations); AND
2. the owner of the parcel to be bound, at the time he acquired his parcel, had notice of the covenants contained in the deeds of other buyers in the subdivision (actual, inquiry or record notice)

Question 97

When does an equitable servitude bind successors?

Answer 97

Equitable servitudes will bind successors if:
1. Writing: the equitable servitude is in writing (unless the common scheme doctrine applies)
2. Intent: the original covenanting parties intended the servitude to bind successors
3. Touch & Concern: the servitude touches and concerns the land (benefitting the dominant parcel’s owner in her use or enjoyment of her property, or restricting the servient parcel’s use or enjoyment of his property)
4. Notice: the successor of the servient parcel had notice of the servitude when they acquired the property (can be actual, inquiry or record notice)

NOTE: No horizontal or vertical privity is required

“When Injunction is The Certain Need”

Question 98

How can an equitable servitude be terminated?

Answer 98

An equitable servitude may be terminated by:
1. Destruction
2. Release
3. Estoppel
4. Abandonment
5. Merger
6. Condemnation
7. Changed Conditions (conditions have changed so significantly that the purpose of the servitude is impossible to achieve)

“DREAM Chocolate Chip Cookies”

Question 99

What are equitable defenses to enforcement of an equitable servitude?

Answer 99

A court will not enforce an equitable servitude if:
1. The neighborhood conditions have changed so significantly that enforcement would be inequitable (must be so pervasive that the entire area or subdivision has changed; piecemeal change is not enough);
2. The person seeking enforcement is violating a similar restriction on his own land (unclean hands);
3. The benefitted party acquiesced in a violation of the servitude by the burdened party;
4. The benefitted party acted in such a way that a reasonable person would believe the covenant was abandoned or waived (estoppel); or
5. The benefitted party failed to bring suit against the violator within a reasonable time (laches)

Question 100

What is the common law rule of “first in time, first in right”?

Answer 100

Without a recording act in place, the common law rule of “first in time, first in right” applies
* When real property is transferred multiple times by the same grantor, the first grantee would have valid title against subsequent grantees

Question 101

What is a recording act?

Answer 101

Statutes known as “recording acts” require a grantee of property to make some sort of recordation so as to give “notice to the world” that title to the property has already been conveyed, and thus to put subsequent purchasers on guard
* By recording, the grantee gives constructive (or “record”) notice to everyone

Question 102

Who do recording acts protect?

Answer 102

Recording acts protect subsequent bona fide purchasers of property from secret, unrecorded interests of others

Bona Fide Purchaser: A bona fide purchaser is:
1. a purchaser (or mortgagee);
2. who pays valuable consideration (consideration need not be adequate, but must be of substantial pecuniary value; i.e., something more than what is required for contract formation); and
3. takes without notice of the prior instrument

NOTE: Recording acts do not protect donees, heirs and devisees because they do not take “for value”

Question 103

What are the three types of recording acts?

Answer 103

There are three types of recording acts:
1. Race Statutes: The grantee who is first to record prevails over others (only very few states have race statutes)
> EX: “A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded”
2. Notice Statutes: A subsequent bona fide purchaser (BFP) prevails over a prior grantee that did not record
> EX: “A conveyance of an estate in land . . . shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded”
3. Race-Notice Statutes: A subsequent BFP prevails over a prior grantee only if the BFP records BEFORE the prior grantee
> EX: “A conveyance of an estate in land . . . shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded”

Question 104

What is the “shelter rule”?

Answer 104

Under the “shelter rule,” a transfeee who takes from a bona fide purchaser (BFP) will prevail against any interest the BFP would have prevailed against; the transferee “takes shelter” in the status of the BFP transferor and thereby “steps into the shoes” of the BFP even where the transferee otherwise fails to meet the requirements of BFP status
* Applies even if the transferee had actual notice of a prior, unrecorded conveyance

Question 105

What are the three types of notice?

Answer 105

There are three types of notice:
1. Actual Notice: Prior to closing, the purchaser has actual subjective knowledge of a prior, unrecorded interest
2. Inquiry Notice: The purchaser of property is in possession of facts, or could make an inspection of the property, which would lead a reasonable person to make further inquiry (notice is imputed whether or not the purchaser actually makes the inquiry)
3. Record Notice: A purchaser is given constructive notice of prior instruments recorded in the “chain of title” (i.e., recorded in a fashion such that a reasonable search could find it)
> EXCEPTION: A “wild deed” is a recorded deed that is not connected to the chain of title; it does NOT give constructive notice because a subsequent bona fide purchaser cannot feasibly find it

“AIR”

Question 106

What is a purchase money mortgage?

Answer 106

A purchase money mortgage (PMM) is a mortgage given to:
1. the seller of the property as part of the purchase price; or
2. a third-party lender who is lending the funds to buyer for the purpose of purchasing the property

A PMM, whether recorded or not, has priority over mortgages, liens and other claims against the mortgagor that arose PRIOR to the mortgagor’s acquisition of title

Vendor PMM vs. Third-Party PMM: As between a vendor PMM and a third-party lender PMM, the VENDOR is usually given priority over the third-party lender
* Because both PMMs arise from the same transaction, neither is treated as “subsequent”; thus, the recording acts do NOT apply unless ONLY ONE party has notice of the other

Question 107

What is zoning?

Answer 107

Zoning is the legislative division of a region within a state into separate districts with different regulations for land use, building size and the like
* The zoning power derives from the state’s police power to enact laws for the protection of the health, safety morals and welfare of its citizens, and it is limited by, among other things, the:
* Due Process Clause of the 14th Amendment
* Equal Protection Clause of the 14th Amendment
* Takings Clause of the 5th Amendment (made applicable to the states through the 14th Amendment Due Process Clause)

Local governments can exercise zoning power only if authorized to do so by a state’s enabling acts
* Ordinances that do not conform to such acts are “ultra vires” (beyond the authority of the local government) and void

Question 108

What are the two types of zoning ordinances?

Answer 108

There are two types of zoning ordinances: cumulative and noncumulative

Cumulative Zoning: A cumulative zoning ordinance creates a hierarchy of uses of land (e.g., a single-family home is a higher use than an apartment building, which is a higher use than a retail store, which is a higher use than a factory)
* Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated use or any higher use

Noncumulative Zoning: Under a noncumulative zoning ordinance, land may be used ONLY for the purpose for which it is zoned

Question 109

What is a nonconforming use?

Answer 109

A nonconforming use is a use of land at the time of passage of a zoning ordinance that does not conform to the ordinance
* A nonconforming use cannot be eliminated all at once

A nonconforming use cannot be extended or intensified in ways that constitute a substantial change, but insubstantial changes are permitted
* Owners can make reasonable changes to repair their premises and make them practicable for their purposes

Improvements and Rebuilding: The majority view is that any change or improvement must comply with the new zoning ordinance, and that if a structure is destroyed, a rebuilt structure must comply with the new zoning ordinance

Question 110

What is a variance?

Answer 110

A variance from the literal restrictions of a zoning ordinance may be granted by administrative action

To obtain a variance, the property owner must show that:
1. the ordinance imposes a unique hardship on him; and
2. the variance is not contrary to the public welfare