RP

Question 1

Defeasible Fees
Fee Simple Determinable

Answer 1

Unlike FSA may be term by occurrence of event:

FS Determinable–limited by specific durational language (e.g. “so long as,” “while”, “until”); term automatically upon happening of event.

Future interest in grantor–possibility of reverter automatic; freely alienable during grantor’s life.

Future interest in grantee–executory interest; passage also automatic upon happening of event and also freely alienable.

Question 2

FS Subj to Condition Subsequent

Answer 2

When terms ambiguous cts prefer this over FS Determinable

–Limited in duration by specific conditional language–e.g. “provided that,” “on condition that.”

Unlike FS Determinable–term NOT automatic; terms only if grantor affirmatively demonstrates intent to term.

Future interest in grantor–right of re-entry; in conveyance grantor MUST explicitly retain this right.

Question 3

Restraint on Alienation

Answer 3

TOTAL restraint on alienation of FS estate VOID as against public policy b/c freedom of alienation is a defining attribute in real estate.

PARTIAL restraints also disfavored but may be okay if reasonable–to determine reasonableness courts weigh the utility of the restraint against the harm resulting from its enforcement.

Question 4

FS Subj to Executory Interest

Answer 4

Limited by specific conditional language such that upon occurrence of specified event/condition title will automatically pass to 3P.

Future interest in 3P–executory interest and freely alienable.

Question 5

Future Interests Following Life Estate

Answer 5

E.g. “O conveys to A for life”–O retains a reversion.

E.g. “O conveys to A for life, then to B”–B has remainder

E.g. “A conveys to B for life, but if B remarries, then to C”–B has a defeasible life estate and C has executory interest.

Question 6

Life T Duties

Answer 6

1) Duty to pay current charges–LT must pay all current charges during life tenancy (e.g. mortgage interest and prop taxes) up to financial benefit received from prop, determined by:
–LT occupies prop–financial benefit measured by fair market rental value of prop OR
–LT does NOT occupy prop–financial benefit measured by income derived from land.

2) Duty to prevent waste–affirmative (i.e. vol) , permissive and ameliorative waste.

3) Duty to make ordinary repairs

Question 7

Annexed Chattel

Answer 7

A Life T (or her personal rep) may remove an annexed chattel w/in a reasonable time after life estate ends if:
1) the life T did not intend to perm annex the chattel; and
2) its removal will not cause substantial damage

Question 8

Vested Remainder

Answer 8

Capable of becoming an estate that is presently possessory upon natural expiration estate.

1) Vested Remainder Subj to Open–NOT subj to any conditions precedent and created in ascertainable grantee; e.g. “A conveys to my son for life, and on his death to his children”; A was 1 child, a son–that son has VR subj to open.

2.) VR Subj to Complete Divestment–e.g. “A conveys to B for life, then to C, but if C has no children, then to D’s children.”

Question 9

Rule of Convenience

Answer 9

Class-closing mechanism to avoid application of RAP to vested remainder subj to open.

–If grant does not have an express closing date, RAC closes class when any member of class becomes entitled to immediate poss.

–E.g. “O conveys to A for life, then to B’s children.” B has 1 child–this class will close on A’s death.

Question 10

Contingent Remainder

Answer 10

Created in grantee that is unascertainable or subj to express condition precedent to grantee’s taking.

–E.g.”A conveys to B for life, then to his children”–when A conveys B has no children, so B’s unborn children have CR.

–E.g. A conveys to B for life then to B’s children who reach 21 years old”–when A conveys B has 1 child who is 10, so B’s child has CR.

Most JX–if CR has not vested by time preceding estate term, grantor’s reversion becomes poss and person holding CR takes springing exec interest.
*P holding CR can freely transfer inter vivos–BUT CR is NOT a current poss interest.

Question 11

Springing/Shifting Exec Interests

Answer 11

Springing–divests the grantor

–E.g. “O conveys to A for life, then to B 1 yr after A’s death”–B has a springing exec interest b/c divests O the grantor.

Shifting–divests the grantee

–E.g. “O conveys to A, but if the land is used for commercial purposes, to B”–B has shifting exec interest b/c divests A the grantee.

Question 12

Concurrent Estates–TIC and JT–EMPHASIZE

Answer 12

TIC–default concurrent interest; sep but undivided interests in the prop; NO ROS–each T can transfer interest during lifetime; each T has right to poss whole–so if one T transfers undivided interest via lease the tenant obtain’s only T’s concurrent right of poss w/ other TIC.

JT–big diff from TIC is ROS; grantor must make clear expression of intent plus have survivorship language; 4 unities req otherwise TIC–1) unity of poss; 2) unity of interest; 3) unity of time; and 4) unity of instrument.

Securing mortgage as JT–most JX lien theory and does not destroy JT; min JX title theory thus would destroy JT.

Devise NOT allowed under JT b/c of ROS

Inter Vivos Transfer allowed –severs ROS but if conveyance by only 1 of more than 2 JTs does NOT destroy JT of remaining JTs.

Question 13

Rights and Obs of Concurrent Owners–EMPHASIZE

Answer 13

1.) Poss and Use–each Co-T has right to poss all of prop regardless of share (unless agreement to contrary).

2.) Ouster–Co-T in poss denies another Co-T access to prop; remedies include: injunction granting access; or damages for value of use while unable to access prop.

3) Rental income from 3P–divided based on ownership interests.

4.) Op expenses–taxes/mortgages divided based on ownership interest and Co-T can collect from others for excess payments; BUT if 1 co-T in sole poss then can collect only to the extent that those expenses exceed the rental value of prop.

5.) Repairs/improvements–No ROR but co-T can get credit in partition action.

Question 14

Partition–EMPHASIZE

Answer 14

Equitable remedy available to all holders of TIC/JT–unilateral right.

–Ct will physically divide prop into distinct prop unless: 1) NOT practical (e.g. can’t physically divide a condo into two) or 2) NOT fair to all Ps–if so then ct will partition by sale and proceeds divided based on ownership interests.

–Co-Ts can agree not to partition–enforceable if agreement is clear and time limitation reasonable.

Question 15

Tax Sale of Co-owned Prop

Answer 15

A tenant who buys back co-owned prop at a tax sale takes the prop subj to the other co-T’s interests. But the other co-Ts must contribute their proportionate share of the purchase price w/in a reasonable time to avoid forfeiting their interests to the purchasing co-T.

Question 16

Tenancy for Years

Answer 16

Measured by fixed and ascertainable amt of time; MUST be in writing if term longer than 1 yr (SOF).

Term automatically at end of term–no notice req unless lease reqs it.

Also term if–T surrenders lease (vol agreement b/t L/T to end lease) or T/L commits material breach–e.g. failure to pay rent or L violates IWOH or Covenant of Quiet Enjoyment.

Question 17

Periodic Tenancy

Answer 17

Repetitive and ongoing for set period–e.g. month-to-month; intent can be express (signed lease) or implied (paying rent).

Renews automatically at end of each period until L/T gives proper notice of term.

Proper Notice of Term–means L/T gives notice before start of last term; many sts have lowered to 1-month’s notice; notice effective on last day of period; most JX req written notice.

Question 18

Tenancy at Will/Sufferance

Answer 18

Tenancy at Will–may be term by either L/T at any time time for any reason; express or implied; can be term by either P w/o notice.

Tenancy at Sufferance–T holds over after lease ended; term when 1) T vol leaves; 2) L evicts or 3) L re-rents to T (creating periodic tenancy); T owes reasonable value of daily use–i.e. look to prior rent.

Question 19

Implied Covenant of Quiet Enjoyment and Constructive Eviction

Answer 19

T can withhold rent when L takes actions that make premises wholly or sub unsuitable for intended purposes, and T is constructively evicted.

4 Elements:

1) Premises unsuitable for intended purposes;
2) T notifies L;
3) L does NOT correct;
4) T vacates after reasonable amt of time–i.e. need to give L opp to fix problem.

Question 20

IWOH

Answer 20

L has ob to maintain prop so it is suitable for RESIDENTIAL use (not applicable to commercial leases).

–Concerned w/ conditions that threaten T’s health/safety–e.g. building code violations; T cannot waive.

If L fails IWOH T may:
1) refuse to pay rent–if so then still must notify L and give reasonable opp to fix.
2) remedy defect and offset costs against rent; or
3) defend against eviction

Unlike Covenant of Quiet Enjoyment–does NOT req T to vacate.

Question 21

T Duties–Duty to Avoid Waste

Answer 21

T has duty not to commit affirmative or permissive waste; Ls usually req permission before T can commit ameliorative waste.

Question 22

L Duties–Duty to Mitigate Damages

Answer 22

L responsible for repairs in residential lease UNLESS caused by T’s actions.

Comm lease–L can place duty to repair on T.

Duty to Mitigate–L must make reasonable efforts to re-rent if T abandons/is evicted; if L does NOT make diligent efforts to mitigate then T relieved from ob of continuing to pay rent; if L does seek to mitigate L entitled to diff/ b/t original rent and rent received from replacement T.

Question 23

Holdover T and Duty to Deliver Poss

Answer 23

Maj: L must deliver actual poss of leasehold premises.

Min: L only req to deliver legal poss.

Holdover T–L can evict or continue rel w/ T by treating holdover T as periodic T.

Question 24

Conditions of Leased Premises–Tort Liability

Answer 24

To adhere to quiet enjoyment L must control 1) common areas; and 2) nuisance-like behavior of other Ts.

If T complains L cannot retaliate by evicting.

Ls have gen duty of RC–under CL liable if T not warned about latent defects/faulty repairs/or neg causing injury in common areas.

Question 25

Assignment vs. SL

Answer 25

Assignment–complete transfer of remaining term; L can collect rent from T (POC) AND subsequent T (POE).

SL–transfer for less than remaining term; L can collect from T ONLY (POC and POE).

If lease silent on issue–T may assign/SL freely.

If lease reqs L permission to transfer but silent as to standard–maj: L may deny permission to transfer ONLY for commercially reasonable reason.

Question 26

Fair Housing Act

Answer 26

Ls that live in a small complex (e.g. 4 unit building) can discriminate in renting units but CANNOT publish such discrimination/racial preference–e.g. white male preferred–in an ad.

Question 27

Right of First Refusal

Answer 27

–A partial restraint on alienation that, if reasonable, is valid and enforceable by an injunction. This right is generally reasonable if the holder of the right can purchase the property under the same terms offered to another party.

–A type of option NOT subj to RAP.

Question 28

Land Sale Ks

Answer 28

Subj to SOF:
1) Must be in writing;
2) Signed by P to be charged; and
3) Include essential terms–e.g. the Ps, description of prop, price/payment info

Exceptions to SOF:
1) Part perf by either B/S–payment of all/part; poss by purchaser; or improvement by B (many sts req at least 2 of these)

2) Detrimental Reliance–B/S has reasonably relied on K and would suffer hardship if K not enforced–e.g. B sold old house.

Question 29

Time is of the Essence

Answer 29

Generally, a court will assume that time is not of the essence in a real-estate contract, unless the contract:

–specifically states that time is of the essence;
–circumstances indicate that this was the intention of the parties;
–or one party gives the other party notice that time is of the essence. Such notice must be given at a reasonable time before the date designated for closing.

If time is not of the essence– strict adherence to the closing date set in the contract will not be required in equity. Thus, a failure to perform will generally not be grounds for rescission of the contract. A party can sue for specific performance, though, as long as the party was ready to perform within a reasonable time from the date set for performance.

Regardless of whether time is of the essence in a real-estate contract, though, the party that fails to render performance on the date set for closing in the contract will be in breach and liable for damages in an action at law for incidental losses such as taxes, interest, etc.

Question 30

Marketable Title

Answer 30

Every land sale K includes implied covenant of mktable title–i.e. title free from unreasonable risk of litigation (e.g. AP that hasn’t been quieted, zoning violations, private encumbrance).

Defect must be cured/fixed before closing–at which point K/deed merge and deed controls (merger doctrine).

B remedy–rescission of K if S cannot deliver mktable title.

Delay in closing–breach but NOT grounds for recission.

Question 31

Doctrine of Merger

Answer 31

After Closing–ob contained in K of sale is–e.g. S’s duty to deliver mktable title–merged into deed and cannot be enforced unless deed contains ob.

Exceptions–1) Ps intent that ob survive deed; 2) ob collateral to and indp of conveyance (e.g. ob regarding condition of prop); and 3) does not prevent other K defenses such as fraud.

Question 32

Duty to Disclose Defects

Answer 32

Most JX–impose duty on S to disclose to B all known, physical and material defects; must sub affect value of home/health/safety and must not be readily observable or known to buyer;

General disclaimers such as “as is”–suff to disclaim this duty in some sts but NOT suff to preclude S’s liability for misrep or fraudulent concealment.

Remedy–recission or damages.

Question 33

“As is” clauses

Answer 33

Disclaims duty to disclose defects–will be enforced in land sale K when there is no positive misrep (i.e. lying to B when B asks about condition) or fraudulent concealment regarding conditions of prop.

This relates to prop conditions, NOT title.

NOT enforceable if new house–which typically imposes a warranty of habitability which can be enforced by subsequent Bs against builder.

Question 34

S/B Remedies for Breach

Answer 34

S Remedies:
1) Damages–diff b/t K price and mkt price
2) Recission–sell to someone else
3) SP–every parcel of RP is considered unique.

B Remedies:
1) Damages–diff b/t K price and mkt value on date of breach.
2) Recission–return $ to B and rescind K;
3) SP

Must choose b/t damages and SP

Maj adheres to doctrine of equitable conversion–B holds equitable title thus bears risk of loss b/t K and closing (but can offset casualty insurance from S).

Question 35

Adverse Possession

Answer 35

Doctrine of AP allows P in unlawful poss to acquire good title to prop.

4 Elements:

1) Continuous for statutory period (many JX 10 yrs)–not literal, just needs to be consistent w/ type of prop; tacking allowed but must be in privity–ie. some exchange b/t Ps.

2) Open/Notorious–Puts reasonable true owner on notice/use cannot be hidden.

3) Hostile–w/o true owner’s permission; Maj–ignore state of mind and just look at whether D objectively intends to claim land as his own.

4) Exclusive–No sharing w/ true owner but can share w/ another AP via TIC.
*Hostile and Exclusive elements NOT met if JTs–e.g. one JT using the prop while other JTs don’t visit the prop–they are all still owners thus not hostile nor exclusive.

Scope of Poss–AP traces legal boundaries of prop.
*Exception–constructive AP–i.e. look for fraudulent deed; constructive AP can give title to the whole if amt poss is reasonable portion of the whole.

Question 36

Deed Delivery/Acceptance and Contents

Answer 36

Delivery–Need present intent to deliver NOW (e.g. if grantor can change mind before delivery then no present intent); grantor can make proper delivery to agent, but agent’s auth to sign for grantor needs to be in writing (i.e. cannot just orally allow agent to sign for grantor).
*Grantee does NOT need to actually poss the deed for delivery to be met–just need proven intent to pass title.

Acceptance–Gen presumed provided transfer for value OR gift beneficial.

Contents–identifies Ps and signed by grantor (SOF); include words of transfer; suff description of prop.

Recording the deed NOT req to transfer title–i.e. a req not to record deed until later is irrelevant so long as delivery is made.

Question 37

Recording Acts and Notice & Race/Notice Statutes

Answer 37

Recording acts protect INNOCENT BONA FIDE SUBSEQ PURCHASERS–i.e. one who gives valuable consideration and has no notice (actual, inquiry or record) of prior instrument. Equitable Interests (e.g. trusts) also subj to recording acts

Recording acts DO NOT protect those who do not pay value–i.e. grantees who acquire title by gift, intestacy/devise; judgement creditors.

3 kinds of notice–1) Actual; 2) Constructive (i.e. record notice); 3) Inquiry (i.e. reasonable investigation would have disclosed).

Notice Statute–BFP wins if acquire w/o notice of prior unrecorded conveyance–i.e. “in GF w/o notice”; “w/o notice unless the same be recorded according to law”–but remember SP still charged w/ inquiry notice, so if facts show grantee has poss of prop, then SP has inquiry notice.
*If BFP takes w/o notice–then considered an “innocent purchase for value” and takes free and clear of prior unrecorded interests; later notice to BFP is irrelevant.

Race Notice Statute–SP wins if acquire w/o notice of prior unrecorded conveyance AND records first.

Question 38

Shelter Rule

Answer 38

A person who receives a property interest from a BFP–i.e. lacks notice of an earlier prop interest (notice statute) and records first (race-notice statute)–is entitled to the same protection under the recording act as the BFP, even if that person receives by gift/devise.

Question 39

Chain-of-Title Problems

Wild Deed

Answer 39

e.g. O sells Blackacre to A, but A does not record. Then, A sells Blackacre to B, and B records. Then, O conveys Blackacre to C, who has no notice of the earlier conveyances to A or B. Next, C records. Then, A records the deed from O to A. B sues C for title to Blackacre. What is the result?

Under a race statute–C prevails even though B recorded the deed from A to B before C recorded the deed from O to C, because the deed from A to B was a “wild deed,” outside C’s chain of title.

Under a notice statute–C prevails because he had no actual notice of the conveyances from O to A and from A to B, and the deed from A to B did not give him constructive notice because it was a wild deed.

In a race-notice jurisdiction–C prevails for a combination of the two reasons above: C had no actual or constructive notice of O’s deed to A, and B’s prior recording of the deed from A to B does not count because it is a wild deed.

Question 40

Chain-of-Title Problems

Deed Recorded Late

Answer 40

e.g. O sells Blackacre to A, but A does not record. Then, O sells Blackacre to B, who has actual notice of the conveyance from O to A, and B records. Then, A records. Next, B conveys to C, who has no actual notice of the O-to-A conveyance. C sues A for title to Blackacre. What is the result?

i) Under a race statute–C prevails even though A recorded the deed, because A’s deed was recorded outside C’s chain of title. Remember that under the standard title search, C would research the grantor index only under O’s name until the date that B recorded the deed from O to B. Because O’s deed to A was filed after that date, it is not considered “duly recorded” for the purposes of a race statute.

ii) Under a notice statute–C wins because C had no notice and because A’s deed was recorded outside C’s chain of title.

iii) In a race-notice jurisdiction–C wins because both race and notice requirements are met.

Question 41

Chain-of-Title Problems

Estoppel by Deed

Answer 41

Applied to validate a deed, and in particular a warranty deed, that was executed and delivered by a grantor who had no title to the land at that time, but who represented that he or she had such title and who thereafter acquired such title. Would apply in subseq grantee’s favor to estop the initial grantee from claiming ownership of the land upon the death of the grantor.

Question 42

General/Special/Quitclaim Deed

Answer 42

6 Covenants in GWD–warrants against ALL defects:
–Present–breach occurs at conveyance and SOL begins to run at time of conveyance; action can only be brought by grantee (NOT subseq grantee) b/c does present covenants do not run w/ the land:
1) Seisin–describes land in Q;
2) Right to convey–S has right to convey
3) Against encumbrances–no undisclosed encumbrances

Future–breach occurs post-conveyance so both grantee and subseq purchasers can bring action POST conveyance:

4) Quiet enjoyment–not disturbed by 3P claim;
5) Warranty–promises to defend against future claims by 3P (ONLY lawful claims by 3P–i.e. grantor only req to pay litigation costs if 3P is successful);
6) Further assurances

Remedies=damages

SWD–warrants against defects ONLY caused by grantor

Quitclaim–NO warranty as to health of title.

Question 43

Mortgages–Liability of Subseq Transferee

Answer 43

“Assumes” mortgage–upon default transferee assumes mortgage AND personally liable for debt; both original mortgagor (secondarily liable) and transferee (primarily liable) liable; Most JX–this agreement does NOT need to be in writing; if in writing the transferee need only accept/record the deed (does not actually need to sign to become personally liable).
*Law of Suretyship–If transferee assumes mortgage then also must reimburse original mortgagor if original mortgagor makes pays overdue installments to avoid default and foreclosure.

Takes “subj to” mortgage–transferee NOT personally liable upon default; presumed if deed silent.

Question 44

Purchase-Money Mortgages

Answer 44

When a mortgage is given by a B to a S as part of the purchase price; also when 3P lender lending funds to B to purchase prop, that transaction creates purchase-money mortgage. As between two PMMs, a seller’s PMM will take priority over a third-party PMM.

Purchase-money mortgages have PRIORITY over claims against a mortgagor that arise prior to mortgagor’s acquisition of title.

*Watch out for fact pattern where B ALREADY OWNED the prop before signing mortgage–in that case NOT a purchase-money mortgage.

Question 45

Equity of Redemption and Foreclosure Methods/Effects

Answer 45

CL right held by mortgagor to reclaim title and prevent foreclosure upon full payment of debt–MUST exercise right before foreclosure.
*This can be waived for valuable consideration–e.g. lower mortgage interest rate

Foreclosure–forced sale to pay off debt.

Deficiency Judgement–mortgagor responsible if sale produces less than mortgagor owes.

Look at interest being foreclosed–absent statutory redemption (i.e. giving mortgagor right to pay and redeem title to prop AFTER foreclosure) purchaser takes prop free and clear of any junior mortgage and subj to any senior mortgage.

Question 46

Distribution of Proceeds in Foreclosure Sale

Answer 46

The proceeds from a foreclosure sale are applied:
–first to the costs associated with the sale (e.g. atty’s fees);
–second to the balance and interest of the mortgage obligation being foreclosed;
–and third to the mortgage obligations owed to junior interest holders in the order of the priority of their interests (if insuff funds to satisfy junior interests then may seek deficiency judgement); and
–any remainder is paid to the debtor-mortgagor, while senior interests remain unaffected.

Question 47

Deed in Lieu of Foreclosure

Answer 47

A deed conveying a mortgagor’s interest in the mortgaged property to a mortgagee in lieu of foreclosure allows the mortgagee to take immediate possession of the property without the formalities of a foreclosure sale.

Any junior interests remain attached to the property, and the mortgagee’s interest is extinguished unless it was reserved–i.e. if the mortgagee accepts the deed in lieu of foreclosure w/o reserving right to foreclose.

Question 48

Transfer of Promissory Note and Mortgage

Answer 48

Mortgage–lien that secures the loan.

Promissory note–sets forth terms of the loan; evidence of the debt; can be assigned to another indp of the mortgage–the mortgage auto transfers w/ the note once the note has been properly assigned.
*Negotiable promissory note–can be assigned by simply endorsing and delivering the note;
*Nonnegotiable promissory note–reqs a sep assignment doc to transfer ownership.

Question 49

Express vs. Implied Easement

Answer 49

Express–must be in writing and can be created by grant or reservation; subj to recording statutes; easement appurtenant is one that benefits the the dom estate and “runs w/ the land”–i.e. transfers automatically when dom estate transferred; negative easement–i.e. preventing someone from doing something–must be express.

Implied–informal/arise out of circumstances; transferable; NOT subj to SOF; NOT subj to recording statutes unless SP had notice.

Question 50

Implied Easement by Nec/Implication

Answer 50

Nec–created only when prop is useless w/o it–e.g. prop landlocked after sale; Elements–1) common ownership (dom/servient estates were owned by 1 person); and 2) nec at severance–mere inconvenience not enough.

Implication–1) common ownership: 2) owner used as if easement before severance; 3) after severance owner use continuous; 4) reasonably nec to dom estate’s use.

Question 51

Implied Easement by Prescription/Estoppel

Answer 51

Prescription–Like acquiring easement by AP; elements same as AP except exclusivity.

Estoppel–starts w/ permissive use (i.e. a revocable license); then creates reliance–i.e. look for 2nd neighbor investing $ in reliance on first neighbor’s promise; and permission withdrawn–if reliance detrimental to 2nd neighbor, 1st neighbor estopped from withdrawing permission.

Question 52

Scope of Easements

Answer 52

Express–defined in the first instance by its terms; if terms ambiguous cts look to intent of Ps which may be indicated by post-creation conduct of the Ps and what is reasonable in light of the easement’s purpose; owner of servient estate may thwart a change in the scope of express easement that conflicts w/ terms of easement; owner of servient estate may enjoin owner of easement from exceeding scope but doe s not term the easement.

Nec–determined by extent of nec

Implication–determined by existing quasi-easement.

Prescription–limited to the nature / extent of adverse use.

Question 53

Term of Easements

Answer 53

Release–Holder of E expressly releases it; must be in writing.

Merger–Easement term if owner of E acquires fee title to estate.

Abandonment–owner acts in affirmative way showing clear intent to relinquish right.

Prescription–E holder fails to protect against servient estate owner’s interference for statutory period.

Sale

Estoppel–Servient owner changes position to his detriment.

End of Nec

Question 54

Real Covenant Reqs–EMPHASIZE

Answer 54

A written promise to either do something on the land OR a promise NOT to do something on the land.

1.) Writing–subj to recording acts; 2) Intent to bind successors–e.g. express language such as “and his heirs/assigns.”
3.) Touch and Concern land
4.) Notice–actual or record; to be binding a restrictive covenant must be placed on prop at time it is conveyed.
5.) Horizontal Privity–required to run the burden (i.e. enforce rights against D) but not req to run benefit; ONLY arises in connection with a conveyance of a real property interest, such as in a deed, mortgage, or lease–if not then NO horizontal privity.
6.) Vertical privity–to run burden successor must take original P’s entire interest; to run benefit successor need only take interest out of original P’s interest.

Remedy for breach of real covenant–damages.

Zoning ord does NOT preempt real covenant even if it is a permissible use under the ord.

Question 55

Equitable Servitude–EMPHASIZE

Answer 55

Easier Reqs than Real Covenant:

1) Writing;
2) Intent to run w/ land
3) Touch and Concern land
4) Notice–actual/record/or inquiry at time prop conveyed.
5) No privity req

Remedy–injunction

Question 56

Implied Reciprocal Servitute–EMPHASIZE

Answer 56

A kind of equitable servitude implied and need NOT be in writing–usually dealing w/ PLANNED COMMUNITIES.

Reqs:
1) Must intend to create covenant on all plots in subdivision;
2) Promises must be reciprocal;
3) Must be negative–restriction
4) Must be a COMMON PLAN–e.g. map of comm or mktg efforts)
5) At least inquiry notice–e.g. all houses painted white.

Question 57

Changed Circumstances–EMPHASIZE

Answer 57

This applies in situations where there have been drastic changes to the land and the surroundings such that it makes it unreasonable to comply with the former restrictions placed by covenants/equitable servitudes/implied reciprocal servitudes. However, this is a very high bar to establish.

Question 58

Takings–EMPHASIZE

Answer 58

A physical taking occurs when the government (or a third party authorized by the government) permanently and physically occupies private property—regardless of the public interest it may serve. The Fifth Amendment takings clause, which is applicable to the states through the Fourteenth Amendment due process clause, bars the government from taking private property unless:
(1) the taking is for a public use and (2) the owner receives just compensation—i.e., the property’s fair market value.
*The government may also be liable for losses resulting from reliance on the assumption that there would be no taking–e.g. recent improvements.
*But gov NOT liable for relocation costs.

Gov reg can amount to a taking–i.e. regulatory taking. Two types:

Per Se Taking–occurs when a regulation results in a permanent total loss of the property’s economic value (high bar to meet).
*E.g. Commercial developer has not suffered per se taking since he may still use or sell the lot for residential dev.

Partial Taking–analyze following factors:
(1) the economic impact of the regulation on the property owner;
(2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property; and
(3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 59

Takings–Municipality Conditions on Building Permits–EMPHASIZE

Answer 59

Municipalities often attempt to condition building or dev permits on a landowner’s:
1) conveying title to part ot all of the prop to the gov; or
2) granting the public access to the prop

Such exactions constitute an uncompensated taking unless:
1) the gov can show that the condition relates to a legitimate gov interest (nexus) and
2) there is a “rough proportionality” b/t the size of the give-back demanded by the city and the burden on the public caused by the proposed dev.

Question 60

Zoning–Non-conforming uses–EMPHASIZE

Answer 60

Existing Nonconforming Properties–zoning changed and structure does not satisfy zone’s reqs, zoning ord must make provision for prop w/ an existing nonconforming use–i.e. get nonconforming use grandfathered in; owner cannot expand nonconforming use (i.e. the nature and character of use cannot sub change) and may abandon right to use prop in manner that does not conform to zoning ord; owner of the right to use property in a manner that is not in keeping with the zoning ordinance may transfer that right to another person.
*Vested Right–In determining whether a property owner has acquired a vested right in the nonconforming use, most courts require that, at the time that the zoning ordinance takes effect, the property owner must, in good faith, have secured any necessary permit from the proper local authority (e.g.,a building permit) and also have made substantial progress toward achieving the nonconforming use. In a few states, securing a permit by itself is sufficient.
*Invol Term of Nonconformity–a prop owner whose nonconforming use has been grandfathered may suffer term of nonconforming use due to natural forces (but NOT due to D’s neg in collapsing building).

Zoning Variance / Post-ordinance non-conforming use–reserved for unusual/exceptional situations particular to owner’s prop; prop owner req change after zoning ord in place; P applying for variance must show: 1) compliance would create unnec hardship; 2) hardship from circumstances unique to prop (not financial circumstances of owner); 3) owner did not create hardship; 4) variance in keeping w/ overall purpose of ord; and 5) variance will not cause sub harm to gen welfare.

Question 61

CICs

Answer 61

Restrictions in declaration–valid unless illegal, unconst, or against public policy.

New rules governing use of common prop–test is whether the rule is reasonably related to furthering a legitimate purpose of the association; e.g. restricting landowners’ landscaping purely for aesthetic purposes will NOT be enforceable b/c it will not pass this test.

If new rules valid–violation can result in fines or punishment such as preventing D from using common rec facilities (but NOT complete removal of prop that violates the rule–e.g. planting maple trees in violation of rule; cannot remove the trees).

Question 62

Right to Lateral Support

Answer 62

P has the right to have his land supported in its natural state by the adjoining land, so he may bring a cause of action against D for interfering with that right. There are two bases for a right to lateral support cause of action: Strict Liability and Negligence.

Strict Liability:
–When adjoining land is in its natural state (i.e., undeveloped)– a landowner who excavates on his own land is strictly liable for any damage to the adjoining land caused by the excavation.
–If the adjoining land has been improved (i.e., is not in its natural state)—the excavating landowner is strictly liable for any damage caused by the excavation only if the adjoining land did not contribute to collapse; i.e. if facts indicate P’s land would have collapsed even w/o D’s excavation then D not strictly liable.
– If the improvement contributed to the collapse, then the adjoining landowner may recover only if the excavating landowner was negligent.

Question 63

Fixtures

Answer 63

A fixture in real estate is an object that is permanently attached to a property and is usually considered real property. Fixtures can be bolted, screwed, nailed, glued, or cemented to the walls, floors, ceilings, or any other part of the home. When real property is transferred from one owner to another, its fixtures are transferred along with it. Additionally, a tenant cannot remove and take possession of the fixtures of real property when their lease has ended.

In determining whether an object is a fixture that can be removed by a seller of real property, the seller’s subjective intent is NOT controlling. Instead, various factors are examined to ascertain the seller’s OBJECTIVE intent.