Real Property (MBE/MEE) Flashcards
1
Q
i
Fee Simple Absolute
A
- Absolute ownership of potentially infinite duration
- No accompanying future interest
- Freely alienable, devisable, and descendible
2
Q
Defeasible Fee
A
- Potentially infinite duration, subject to termination by occurrence of event
- Alienable, devisable, and descendible
- Types: Fee simple determinable; fee simple subject to a condition subsequent; fee simple subject to an executory interest
3
Q
Fee Simple Determinable
A
- Ownership automatically terminates upon a specific condition and passes to grantor.
- Look for durational words: “as long as,” “until,” “while”
- Future interest: Grantor (or successor) retains possibility of reverter; if future interest is in third party, it is an executory interest
4
Q
Fee Simple Subject to Condition Subsequent
A
- When a specific condition occurs, grantor can exercise a right of reentry.
- Look for specific conditional language: “upon condition that,” “provided that,” “but if”
- Will terminate only if grantor affirmatively demonstrates intent to terminate
- Future interest: Grantor reserves right of re-entry/right of termination
5
Q
Fee Simple Subject to Executory Interest/Limitation
A
- Ownership automatically terminates upon happening of a specific condition and passes to a third party.
- Future interest: Executory interest held by the third party
6
Q
Life Estate
A
- Present possessory estate limited by in duration by life
- Look for durational language: “to A for life;” “to B after life of A,” “to B for life of C”
- Ownership terminates upon end of measuring life
- Future interest: Remainder or executory interest
7
Q
Life Tenant Rights and Duties
A
LT’s rights:
* Right to possess, collect rents, lease/sell mortgage
LT’s burdens:
* Must pay property taxes to extent LT receives financial benefit from land; pre-existing mortgage obligations and assessments for improvements allocated between LT and FI holder
* LT must make reasonable repairs (up to amount of income produced by property or, if LT is in actual possession, FMV), however this does not apply if damage is caused by third party tortfeasor
8
Q
Life Tenant: Mortgage Obligations Incurred Before Life Estate
A
- A mortage obligation incurred before creation of life estate in mortgaged property is subject to allocation between life tenant and future-interest holder
- Parties not personally liable for mortgage obligation unless they assumed the mortgage, but failure to pay may result in loss of property interest
9
Q
Waste Doctrine
A
- LT must deliver property to FI holder in substantially same condition as when LT took possession
- Permissive Waste: LT permits premises to deteriorate through neglect, failure to preserve, failure to reasonably protect property
- Voluntary Waste: Condition of property is substantially changed due to LT’s affirmative action. Affirmative action that results in diminution in property value prohibited.
- Ameliorative Waste: Voluntary action that does not diminish the property value. Permitted when change results in reasonable use of the property. LT has duty not to change premises if FI holders have reasonable ground for objection.
10
Q
Reversion
A
- Held by a grantor who transfers a life estate or estate for years without conveying remaining FI to a 3P
- Not subject to RAP
11
Q
-Remainder
-Contingent Remainder
A
Remainder:
* FI that becomes possessory upon natural expiration of a prior estate created in same conveyance in which remainder is created
Contingent Remainder:
* Created (i) in an unascertainable grantee, or (ii) subject to an express condition precedent to grantee’s taking
12
Q
Survivorship Contingency
A
If a survivorship contingency is stated in a conveyance, then the majority view is that the contingency applies at the termination of the interest that precedes distribution of the remainder
13
Q
-Rule in Shelley’s Case
-Doctrine of Worthier Title
A
Rule in Shelley’s Case:
* Prevented contingent remainder in grantee’s heirs and instead granted a vested remainder in the grantee.
* Abolished in most jurisdictions.
Doctrine of Worthier Title:
* Prevents grantor from creating a remainder in grantor’s heirs
* Creates rebuttable presumption of reversion to grantor
14
Q
-Vested Remainder
-Vested Remainder Subject to Open
-Vested Remainder Subject to Complete Divestment
A
Vested Remainder:
* Not subject to any conditions precedent
* Ascertainable grantee
Vested Remainder Subject to Open:
* When 1+ class member is qualified to take possession at time of conveyance (but less than all of them)
* Each class members’ share is subject to potential partial diminution
Vested Remainder Subject to Complete Divestment:
* Occurrence of a condition subsequent will completely divest remainder
15
Q
-Executory Interests
-Shifting Executory Interest
-Springing Executory Interest
A
Executory Interests:
* FI in 3P (not a remainder) that cuts prior estate short upon occurrence of specified condition
* Subject to RAP
Shifting Executory Interest:
* Cuts short prior estate created in same conveyance, so estate shifts from one grantee to another grantee upon happening of condition
Springing Executory Interest:
* Divests grantor’s interest or fills a gap in possession in which estate reverts to grantor
16
Q
Rule Against Perpetuities
A
- Specific FIs are valid only if they must vest or fail by end of a life in being plus 21 years
- Affected FIs: Contingent remainders, vested remainders subject to open, executory interests, powers of appointment, ROFR and options may be unless commercial
- Unaffected FIs: Does not apply to FIs that revert to grantor (reversion, possibility of reverter, right of reentry)
- “Vest or fail” requirement: If any possibility it will not be known whether interest will vest or fail within applicable period, RAP not satisfied. Tests FI as of time it is created
- Effect of violation: Only offending interests fails unless undermines grantor’s intent
- Exception: Charity-to-charity
17
Q
Special RAP Rule for Class Gifts
A
“Bad as to one, bad as to all”), unless:
* (i) Rule of convenience applies: Membership in class closes whenever any member of class is entitled to immediate possession of a share of the class gift
* (ii) Transfers of a specific dollar amount to each class member
* (iii) Transfers to a subclass that vests at a specific time
18
Q
Tenancy in Common
A
- Two or more grantees with unity of possession
- No right of survivorship
- Each cotenant holds undivided interest with unrestricted rights to possess whole
- Interest freely devisable/transferable
- Default co-tenancy: In most states there is a presumption that a conveyance to 2+ people is a TIC
19
Q
Joint Tenancy
A
- Two or more persons own the property with right of survivorship (when one JT dies, interest goes to other JTs)
- Requirements: Express language and four unities of Time (created at same time), Title (by same title), Interest (with identical equal interests), Possession (equal rights to possess the whole) (TTIP)
- Severence: Converts JT into a TC (only w/r/t severed share)
20
Q
Tenancy by Entirety
A
- Same unities as JT, plus unity of person (i.e. marriage)
- Parties must be married when deed is executed or conveyance occurs
- Neither party can alienate or encumber property without consent of the other
21
Q
Co-Tenant Rights and Obligations
A
- Right to natural resources: Limited to size of contenant’s interest in land
- Possession: Each cotenant has right to possess entire property
- Ouster: Cotenant who is being denied access can bring a court action to regain access to property
- Adverse Possession: If one cotenant ousted other, he can make a claim for adverse possession. Ouster requires physical removal, changing locks, constructing fence to prevent other cotenant from coming, not just exclusively using property.
Partition: TC or JT (not TBE) generally has right to unilaterally partition property (preferably a partition in-kind i.e. a physical division)
Easements: Co-Ts may agree to create an easement; unilaterally-created easement only enforceable against co-T who created it
Third Party Rents: Must share rents recieved from 3P but can deduct operating expenses
Contribution: Right to contribution for operating expenses (e.g., property taxes, mortgage payments) (if sole possession, only if they exceed rental value of property) but no right to contribution for (i) expenses for repairs (unless co-tenant gave notice) or (ii) improvements, but in either case may be entitled to additional value in a partition action
22
Q
Federal Fair Housing Act
A
- Prohibits discrimination in sale, rental, and financing of homes and housing-related transactions (advertising, homeowner’s insurance, zoning)
- Exemptions: Owner-occupied buildings with no more than 4 units and SFH sold/rented without a broker (still subject to advertising rules)
- Protected Classes: Race, color, religion, national origin, sex, disability, familial status
- Racial discrimination: Plaintiff need only show a disparate racial impact, not racial intent or purpose
23
Q
Conflict of Laws
A
Generally apply law of the situs (i.e. state where real property is located) unless:
* (i) document specifies applicable law,
* (ii) dealing with property acquired during marriage (law of spouses’ domicile when property was acquired),
* (iii) collateral issue (state with most significant interest) (ex. issues that relate to a foreclosure but do not affect an interest in land)
24
Q
Tenancy for Years
A
- Created by express agreement for fixed period of time
- Automatically terminates at end of term (no notice needed)
- May be terminated before end of term (e.g., breach)
- SoF applies if term longer than 1 year
25
Periodic Tenancy
* **Repetitive, ongoing estate** measured by set periods that **automatically renew** (e.g., month-to-month) **unless valid termination notice**
* Term may be fixed by parties or by their actions
* Created by express agreement, implication (no mention of duration), or operation of law (holdover tenant)
* **Termination Notice**: Give notice before last period ends; late notice is effective for next period. Notice effective as of last day of period, but in YTY only six months needed.
* **SoF**: Does not apply unless initial term exceeds 1 year
26
Tenancy at Will
* Estate with **no fixed period of time** and **may be terminated by either party at any time**
* Created by express agreement or by implication
* Notice is required
27
Tenancy at Sufferance
* T wrongfully holds over past expiration of lease
* T bound by terms of lease existing before expiration, including rent
* Lasts until T leaves, L evicts T, or L elects to hold T to periodic tenancy
28
Tenant's Duties
* **Pay rent**, **unless premises destroyed or material breach** by L (i.e. breach of covenant of quiet enjoyment or implied warranty of habitability)
* **Avoid waste** (see waste doctrine)
* **Make reasonable repairs**: In non-residential leases, T may be contractually liable for all damage to property
29
Landlord's Remedies for Tenant's Breach
**Failure to pay rent**: L can sue for damages and evict and terminate lease
* **Future Rent**: No anticipatory repudiation in most states
* **Late rent**: L entitled to damages; removal depends on if breach is material or L waived right to evict by accepting payment
**Abandonment**: Treated as offer to surrender rights under lease
* **L accepts surrender**: Lease terminates and T liability for future rent ends
* **L rejects surrender**: T remains liable for rent but L must mitigate damages
30
Landlord's Duties
* **Possession**: Deliver actual physical possession
* **Repair**: Except for T damages, L must repair for residential but not for commercial leases
* **Implied Warranty of Habitability**
* **Covenant of Quiet Enjoyment**
* Security Deposit
31
Implied Warranty of Habitability
* **Premises must be fit for basic human habitation** (health/safety)
* Applies only in residential leases
If breached:
* (i) T must notify L of defect and give reasonable time to repair,
* (ii) T can (a) refuse to pay rent, (b) make reasonable repairs and deduct cost from future rent, or (c) remain in possession, pay rent, and seek damages
32
Covenant of Quiet Enjoyment
* T has a **right to quiet use and enjoyment** of the premises **without interference** from L
* L has duty to control other tenants' nuisance in common areas
* **Applies in both commercial and residential leases**
* Breach may amount to eviction
33
Eviction
* Three types: Actual, partial, constructive
* **Actual**: Lease terminated and T's obligation to pay rent ends
* **Partial**: T excused from paying rent for L's partial eviction, exception for 3P with superior claim or adverse possessor/trespasser
* **Constructive**: Substantial interference caused by L's actions/failure to act. T must give notice of problem, L fails to respond, and T must vacate premises within reasonable time after L fails to fix problem.
* No retaliatory evictions
34
Tenant's Tort Liabilities
* Duty of care to invitees/licensees/foreseeable trespassers
* May be liable for dangerous conditions/activities
35
Landlord's Tort Liabilities
Modern trend: **General duty of reasonable care**; liability for defects existing prior to T's occupancy, failure to make required repairs, criminal activities of 3Ps who injure Ts
**Note**: A landlord can technically be liable for trespass against a tenant because tenant is in legal possession of the property.
36
Assignment vs. Sub-Lease
* **Assignment**: Complete transfer of T's remaining lease term
* **Sublease**: Any transfer for less than entire duration of lease
37
Assignment and Sub-Lease Liability
* **Original T**: Liable for lease covenants unless novation by L because still in privity of contract with L
* **Assignee-T**: Liable to L for rents/covenants running with lease because assignee-T is in privity of estate with L
* **Sublease T**: Not liable for rents/covenants in lease to L because not in privity with L, unless sub-T expressly assumes covenants
* **L's Assignments**: L may assign lease rights/obligations to 3P but remains liable to T for all covenants in lease unless T attorns (i.e. acknowledges new L)
**Note**: L can still remove sublessee from premises if rental payments are not being made to owner by either sublessor or sublessee T
38
Limitations on Assignments
* T can still assign/sublet if lease prohibits, but L can terminate for breach and recover damages
* Modern Rule: L can only withhold permission on **reasonable grounds**, regardless of if commercial/residential. Traditional rule made distinctions and said residential could withhold permission on absolute discretion.
39
Land Sale Contracts: Statute of Frauds
* **Land sales K must be in writing, signed by party to be charged, and contain all of the essential terms** (parties, property description, terms of price/payment)
* Options and ROFR must satisfy SoF
* Deed need not satisfy SoF
* Mortgage agreement must satisfy SoF
**Exceptions to SoF**:
* **Part performance**: Possession, payment, or substantial improvements (2/3 required)
* **Detrimental Reliance**: Specific performance permitted when party seeking enforcement reasonably relied on K and would suffer hardship
40
Marketable Title
* **Title free from defects or unreasonable risk of litigation**
* Seller generally not required to deliver marketable title until closing
* Buyer can rescind/recover if breached
* Buyer can waive right to marketable title before closing
**Note**: Red flags for marketable title include covenants, easements, leases, liens, boundary disputes, zoning violations, adverse possession
41
Implied Warranty of Fitness
* **Warrants use of adequate materials and workmanship for new homes**
* Includes latent construction defects
* Suits must be brought within a reasonable period of time (e.g., several years may be unreasonable)
* May be breached by seller's negligent OR intentional conduct
* **Disclaimer**: Cannot be disclaimed by general "as is" disclaimer
42
Merger
Land sales K obligations merge into deed upon delivery unless parties intend otherwise or obligations are collateral to/independent of conveyance
43
Equitable Conversion
* Once K is signed, seller's interest converted by K into interests in proceeds of sale and buyer is owner of land subject to condition he pay purchase price at closing
* **In between K and closing, B bears risk of loss** if land is destroyed
44
Adverse Possession
**Mnemonic: ANOCHE**
**Actual**: AP must have actual possession of the land
* Could also be physical presence by another whose possession is attributable to the adverse possessor (i.e., an AP's tenant)
**Notorious and Open**: Must make use of land as a reasonable owner would
**Continuous**: Possession must be continuous and uninterrupted throughout the statutory period
* **Tacking**: Allows subsequent possessors to "tack on" to prior possessors if in privity
**Hostile**: Must be without owner's permission
* Majority of jurisdictions require objective intent to claim land as his own
**Exclusive**: Must not share land with true owner, but 2+ people can AP as TIC
**Color of Title**: Allows AP to obtain title to whole property under constructive AP
45
Deed Delivery
* At time of transfer, grantor must **intend to make present transfer** of property interest to grantee
* **Execution and recording** creates rebuttable presumption deed is presently operative
* **Transfer to grantee's agent**: Acts as delivery
* **Transfer to 3P with a condition**: Delivery of a FI if grantor doesn't keep absolute right to recover deed
* **Conditioned upon death**: Grantor must intend to make present gift
* **Acceptance presumed for beneficial transfers**
46
Estoppel by Deed
* After-acquired title doctrine applies when grantor conveys property to grantee by warranty deed (not quitclaim deed) before grantor has acquired title to that property
* Once grantor recieves title, doctrine will cause it to automatically transfer to grantee
* Doctrine of esoppel by deed prevents grantor from asserting ownership of the after-acquired property
47
Deeds: Conditions
When grantor transfers deed to grantee subject to condition that does not appear in deed (e.g., oral condition) parol evidence is not admissible and condition is not enforceable
48
Valid Deed Requirements
* Identified parties
* Grantor's signature
* Words of transfer
* Reasonably definite property description (extrinsic evidence admissible)
* **Equal Dignities Rule**: Agency may execute deed, but agency authorization for real estate Ks must be in writing.
**Note**: A deed that names a nonexistent co-tentant is void as to that co-tenant. The grantor remains the nonexistent co-tenant's interest and becomes TIC with the other co-tenant named in the deed.
49
Notice Recording Act
* BFP (purchaser for value without notice) of prior interest prevails over prior grantee who failed to record
* Must record against subsequent purchaser
50
Race Recording Act
First to record prevails, regardless of knowledge of prior conflicting interests
51
Race-Notice Recording Act
Subsequent BFP protected only if he takes (i) without notice and (ii) is first to record
52
Bona Fide Purchaser
* Person who (i) pays value for property and (ii) takes it without notice of prior claims
* Notice and Race-Notice Statutes protect BFPs
* BFP must pay value for interest, it cannot be a gift or a judgment by a creditor
53
Notice (Actual, Inquiry, Record)
* **Actual**: Grantee with actual, personal knowledge of prior interest cannot prevail under notice or race-notice statute
* **Inquiry**: If reasonable investigation would disclose prior claims, grantee cannot prevail against them
* **Record**: Property recorded and appears in chain of title
54
Present Covenants in General Warranty Deed
* **Seisen**: Grantor owns land as described in deed
* **Right to Convey**: Grantor has right to convey title
* **Against Encumbrances**: No undeclared encumbrances against land
55
Future Covenants in General Warranty Deed
* **Quiet Enjoyment**: Grantee not disturbed in possession by 3P's lawful claim
* **Warranty**: Grantor will defend grantee against 3P's claim
* **Further Assurances**: Grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect
56
Special Warranty Deed
Same covenants of title as general warranty deed, but only warrants against defects arising during time grantor has title
57
Quitclaim Deed
* No covenants of title
* Grantee receives whatever interest grantor possessed
58
Ademption
Devise of real property fails because the testator no longer owns the property upon death
59
Lapse
* Devise of real property can also fail if beneficiary named in will dies before testator and no alternate beneficiary is named
* **Anti-lapse Statute**: Prevents a gift from lapsing if gift is made to family member of degree specified by statute and they leave issue who survive testator
60
Inter Vivos vs. Testamentary Trust
* **Intervivos trust**: Created when settlor conveys his property to the trustee while settlor is alive
* **Testamentary trust**: Created by settler in his will
61
Restraints on Alienation
* **Total prohibition** on transfer/alienation of fee simple property interest by its owner is **always void**
* Grantor can place a **reasonable restraint** on grantee's ability to freely transfer, but if restraint is unreasonable, court will strike it from conveyance
62
Lien Theory
* **Majority Rule**: Debtor/mortgagor has title and right to possession until foreclosure and creditor/mortgagee has lien and right to land if there is default
* Mortgage does not sever JT under lien theory
* If one JT dies and had a mortgage, other JT does not assume mortgage
63
Title Theory
* **Minority Rule**: Lender/mortgagee has title and right to possession until mortgagor possesses right to regain ownership of real property upon satisfaction of mortgage.
* Mortgage severs JT under title theory
64
Deed of Trust
* Trustee holds title for beneficiary (lender)
* Beneficiary lender can purchase property at a non-judicial foreclosure sale, unlike a mortgagee-lender
65
Installment Land Contract
Seller retains title to real property until buyer makes final payment
66
Absolute Deed
* Transfers unrestricted title to real property
* May actually be a disguised mortgage if an obligation is created contemporaneously with the transfer
67
Conditional Sale and Repurchase
* Real property is sold and then leased back to the seller
* May be a disguised mortgage if lease is for a long time with option to repurchase
68
Mortgagor's Liability After Transfer
* Unless lender agrees to release, borrower remains liable after transfer of real property
* If transferee assumes mortgage, borrower is secondarily liable (i.e., if borrower makes payments, can seek reimbursement from transferee)
* Borrower may be relieved of liability if lender impairs borrower's right of recourse against transferee
69
Due-on-sale Clause
Lender can demand immediate payment of full amount due
70
Due-on-encumbrance Clause
Lender can accelerate mortgage upon second mortgage
71
Transferee's Liability After Transfer
* If transferee **assumes mortgage**, transferee is personally liable for mortgage obligation
* If transferee takes real property "**subject to**" mortgage, transferee is not personally liable upon default (but real property may be sold at a foreclosure sale)
72
Equity of Redemption
After default but before foreclosure sale, mortgagor may regain title by paying amount of loan obligation currently owed, plus interest (can be full amount of unpaid loan if there is an acceleration clause)
* **TIC**: Co-T can only redeem co-owned property by paying amount owed by all tenants, even if T is only a 1/2 owner of property.
**Note**: This is equitable right of redemption. Some states have statutory right of redemption that have different rules.
73
Foreclosure Priority
* If 2+ mortgages, foreclosure terminates junior interest and has no effect on senior
* "**First in time, first in right**"
* **Recording-Act Exception**: Mortgages subject to general recording act; a recorded interest may take priority over an unrecorded one
74
Purchase Money Mortgages
* Mortgage given at time of purchase of real property
* Has priority over mortgages and liens created by or that arose against purchaser-mortgagor prior to purchaser-mortgagor's acquisition of the property
75
Future Advance Mortgage
* Arises when a borrower grants an interest in their property in exchange for the right to receive future payments (i.e., a line of credit)
* Future advance mortgage has priority over later mortgages despite having not paid out any/all of the money yet
* But, if original lender loans additional amount to mortgagor that is optional rather than obligatory, such amount may not enjoy priority over a second mortgage if the original lender has notice of the second mortgage. This is true even though the mortgage by its terms severs as security for future advances.
76
Priority: Seller vs. Third-Party Purchase Money Mortgage
* Generally a seller-finance purchase money mortgage takes precedence over a third-party purchase money mortgage
* BUT, a third-party PSMI takes precedence over a regular seller's mortgage
77
Effect of Foreclosure Sale
* **Mortgagor**: Interest Eliminated
* **Purchaser of Real Property**: Takes property free of junior interest, subject to senior interest
* **Senior interests**: Unaffected
* **Junior interests**: Destroyed
78
Distribution of Foreclosure Sale Proceeds
In order:
* Costs associated with sale
* Mortgage obligation being foreclosed
* Mortgage obligation owed to junior interest holders in order of priority over their interests
* Debtor-mortgagor
79
Deficiency Action
Most states permit mortgagee to bring a deficiency action against the mortgagor and/or any party who has assumed the mortgage
80
Express Easement
* Affirmatively created by parties in writing that satisfies requirements for a deed
* Can be created by grant or reservation
* Must satisfy SoF
* If location of easement not specified, servient-estate owner may fix easement to reasonable location
81
Easement by Necessity
* (i) Dominant/servient estates were **formerly one parcel** (i.e., one owner used to own both parcels)
* (ii) At the time of severance and when estates were created, **dominant estate became landlocked**, and
* (iii) Property is **virtually useless** without benefit of easement
82
Easement by Implication of Prior Use
* (i) Servient and dominant estates were once under **common ownership**
* (ii) Quasi-easement existed at severance; may also be implied from subdivision map or plat ownership
* (iii) Prior use was **continuous, apparent, or known**, and
* (iv) Continued use is **reasonably necessary** to dominant estate's use/enjoyment
83
Prescriptive Easement
* Same requirements for adverse possession, except there is **no exclusivity** requirement
84
Easement by Estoppel
Good faith, reasonable, detrimental reliance on permission by servient estate holder, created to **prevent unjust enrichment**
85
Negative Easement
* Prevents owner from using land in specific ways
* Must be **expressly created by writing** signed by grantor
86
Scope of Easement
Court looks to reasonableness of use and intent of original parties and ambiguities resolved in favor of grantee
87
Terminating Easements
* **Release**: By writing that satisfies requirements for creation of deed
* **Merger**: Easement merges into title when owner of dominant or servient estate acquires fee title to other estate
* **Severance**: Severed by attempt to convey appurtenant easement separate from land it benefits
* **Abandonment**: Owner affirmatively acts to show clear intent to abandon right (statements of intent without conduct and mere non-use are insufficient)
* Destruction, condemnation, prescription, estoppel, end of necessity
88
Profits
* Entitles holder to enter servient land and take from it soil or some substance of soil (ex. mineral, timber, oil)
* Created and analyzed similar to easements, except cannot create by necessity
89
Licenses
* Privilege to enter another's land
* Freely revocable unless coupled with interest or estoppel
* Does not need to satisfy SoF
* Invalid oral easements may create license
90
Real Covenants
**Writing**: Must comply with SoF (
**Intent**: Rights/duties to run with land through explicit language or implied from totality of circumstances
**Touch and concern**: Benefit or burden must affect promisee/promisor as owners of land
**Notice** (burden only): Must be constructive or actual
Privity
* **Horizontal privity** (burden only)
* **Vertical privity** (strict vertical privity for burden; relaxed vertical privity for benefit)
**Enforcement**: Damages
91
Negative vs. Affirmative Covenant
* **Negative covenants**: Run with land if they restrict owner's use or enjoyment of the land
* **Affirmative covenants**: Run with land if they require owner to do something related to use and enjoyment of land
92
Horizontal Privity
* When estate and covenant are in the same instrument
* Only required for a covenant for the burden to run
93
Vertical Privity
* Concerns relationship between the original party and the successor party
* **For burden to run with land**: owner must transfer entire interest (i.e., strict vertical privity)
* **For benefit to run with land**: successor must take any portion of original estate (i.e., relaxed vertical privity)
94
Equitable Servitudes
* Must be in **writing** (except for implied reciprocal servitudes); but does not have to be signed by party if recorded and in writing that otherwise satisfies SOF
* Requires **intent** for restriction to be enforceable by and against successors
* **Must touch/concern the land**
* **No privity requirement**
* If servitude is to be enforced against a BFP purchaser: notice for burden to run
* Enforcement: Injunction
95
Implied Reciprocal Servitude
Requires:
* Intent to create servitude on all plots (common scheme)
* Negative servitude
* Notice by party against whom enforcement is sought
96
Defenses to Enforcement of Covenants and Equitable Servitudes
* Changed circumstances
* Laches
* Unclean hands
* Acquiescence
* Estoppel
97
Fixtures
* Chattel attached to real property such that it is treated as part of the real property when determining ownership
* Fixtures can be removed if (i) seller reserves right to remove fixture in sale K; (ii) leased property can be restored to former condition without damage in reasonable time
98
Existing Non-Conforming Property
* May be "grandfathered in" to prevent zoning violation-
* Non-conformity cannot be expanded
* Can increase frequency or upgrade means of use if it does not constitute a substantial change
* Can be transferred
99
Post-ordinance Non-conforming Property
* Owner may request special exception permit or variance
* Party seeking **variance** must show (i) **unusual situation**, (ii) variance does not deviate from comprehensive zoning plan, and (iii) compliance with zoning ordinance would result in **unnecessary hardship**
* **Unnecessary hardship** cannot be self-imposed or variance will not be granted
100
Riparian Rights vs. Prior Appropriation
**Riparian rights**:
* Water belongs to those who own land bordering watercourse
* Owner may make any reasonable use of the water
* Water rights cannot be transferred separate/apart from adjoining land
**Prior appropriation**:
* Water rights are determined by priority of beneficial use
* Subsequent users must not infringe upon rights of prior users
* Water rights may be transferred separately from adjoining land
101
Lateral Support Rights
* **Undeveloped Land**: Landowner who excavates on his land is strictly liable for damage to undeveloped adjoining land
* **Improvements**: Landowner who excavates on his land is strictly liable only if adjoining land would have collapsed in its undeveloped state
*** Improvements contribute to collapse**: Landowner who excavates on his land is only liable if he is negligent
102
Subadjacent Support
Owner of the mineral rights is **strictly liable** for any failure to support the land and any buildings on the land at the time the rights were conveyed
103
Uniform Vendor and Purchase Risk
* Risk of loss remains with seller until buyer takes possession of or receieves legal title to the property
* Adopted in minority of jurisdictions
* Contrast this with equitable conversion, which places the risk of losson the buyer during the executionary period
104
After-Acquired Title
* Applies when a grantor conveys property to grantee by warranty deed before acquiring title to property
* Once grantor receieves title, doctrine will cause after-acquired title to automatically transfer to earlier grantee
105
Title Insurance
* Title insurance policy protects named insured from undisclosed title defects by requiring insurer to indemnify insured for any resulting loss
* Extends to named insured's heir(s) or devisee(s) once they own the insured property-and to persons who receieve the property from the named insured or the heirs or deviseesby warranty deed
106
Earnest Money
* Deposit paid by buyer show good-faith intent to complete transaction
* Once accepted, seller cannot recover other damages for breach
* Earnest money typically constitutes liquidated damaged (i.e., amount agreed upon during good-faith negotiations to reasonably compensate the injured party)
* Damages are recoverable unless they are a penalty
