Mbe And Pa Property

Front 1

The Fee Simple (How to Create)

Back 1

“To A” or “To A and his heirs”
To his heirs mere formality – not needed to create the fee simple

Front 2

The Fee Simple (Distinguishable Characteristics)

Back 2

1. Absolute ownership of potentially infinite duration
2. Freely devisable, descendible and alienable

Front 3

Fee Simple (Accompanying Future Interest)

Back 3

No accompanying future interests. A’s heirs have nothing (a living person has no heirs). A only has prospective heirs and they are powerless

Front 4

The Fee Tail (How to create)

Back 4

“To A and heirs of his body”

Front 5

The Fee Tail (Distinguishing Characteristics)

Back 5

Virtually abolished in US and virtually never tested
Historically would pass directly to
1. Grantees lineal blood descendants no matter what
2. Today the attempted creation of fee tail instead crates the fee simple

Front 6

The Fee Tail (Accompanying Future Interest)

Back 6

In O – Grantor – was called a reversion
In third party – someone other than O – was called a remainder

Front 7

Fee Simple Determinable (how to create)

Back 7

“To A so long as…” “To A during…” “To A until…”
1. Grantor must use clear durational language
2. If stated condition is violated, forfeiture is automatic

Front 8

Fee Simple Determinable (Distinguishing characteristics)

Back 8

Like all defeasible fees, is devisable, descendible, and alienable, but always subject to the condition
You can convey less than what you started with but you can convey more

Front 9

Fee Simple Determinable (accompanying future interest)

Back 9

Possibility of reverter in grantor FSDPOR

Front 10

The Fee Simple Subject to a Condition Subsequent (How To Create)

Back 10

“To A, but if X event occurs grantor reserves right to re-enter and retake”
Creator must use clear durational language and carve out the right to reenter

Front 11

The Fee Simple Subject to a Condition Subsequent (Distinguishing Characteristics)

Back 11

Estate is NOT automatically terminated but can be cut short at grantor’s option, if the stated condition occurs

Front 12

The Fee Simple Subject to a Condition Subsequent (Accompanying Future Interest)

Back 12

Right of entry, synonymous with the power of termination

Front 13

The Fee Simple Subject to an Executive Limitation (How To create)

Back 13

To A, but X event occurs then to B”

Front 14

The Fee Simple Subject to an Executive Limitation (Distinguishing Characteristics)

Back 14

Estate is just like the fee simple determinable only now the condition is broken – the estate automatically forfeited in favor or someone other than the grantor

Front 15

The Fee Simple Subject to an Executive Limitation (accompanying future interest)

Back 15

Shifting executory interest

Front 16

Words of mere Desire, Hope or Intention

Back 16

Insufficient to create a defeasible fee
1. Courts disfavor restrictions of the free use of land
2. Thus, courts will not find a defeasible fee unless clear durational language is used (in each instance – A is vested with a fee simple absolute and NOT a defeasible fee) (e.g. to A with hope that she becomes a lawyer)

Front 17

Absolute Restraints on Alienation

Back 17

VOID. Absolute ban on the power to sell or transfer that is not linked to a reasonable time purpose (e.g. O conveys to A so long as she never attempts to sell – VOID, but for like three years or something wouldn’t be void)

Front 18

The life estate

Back 18

An estate that must never be measured in explicit lifetime terms and never in term of years

Front 19

Life Estate (magic words)

Back 19

O conveys to A for life.
1. A has life estate
2. O is known as a life tenant
3. O has reversion – meaning at the end of A’s life time – life estate refers back to O or O’s heirs
4. In PA – life tenant may lease the property during her tenancy – generally the lease will terminate upon the life tenant’s death if it does not provide for earlier termination. May be extended beyond LT’s death only where the operating docs evidence intent to extend the lease

Front 20

Life Estate Per Autre Vie

Back 20

A life estate measured by a life other than the grantor’s
To A for the life of B

Front 21

Distinguishing Characteristics of a life estate

Back 21

LT’s entitlements are rooted in the import and doctrine of waste

Front 22

Life Estate (two general rules)

Back 22

The LT is entitled to all ordinary uses and profits from the land
The LT must not commit waste (harms future interest holders)

Front 23

Three Types of Waste

Back 23

Voluntary or Affirmative Waste
Permissive Waste or neglect
Ameliorative Waste

Front 24

Voluntary Waste and Natural Resources

Back 24

General rule: Life tenant must not consume or exploit natural resources on the property (such as timber, oil or minerals) unless one of four exceptions applies (on another card).

Front 25

Voluntary Waste and Natural Resources (Exceptions)

Back 25

PURGE
Prior Use – prior to the grant the land was used for exploration. Here – life tenant may continue to exploit. Note the prior use and open mines doctrine (separate card)
Repairs-life tenant may consume natural resources for repairs and maintenance
Grant-life tenant may exploit if granted that right
Exploitation-meaning the land is suitable to any exploit (e.g. a quarry)

Front 26

Prior Use and Open Mines Doctrine

Back 26

If mining was done on the land before the life estate began – the life tenant may continue to mine but is limited to the mines already open
Thus – life tenant must not open any new mines

Front 27

Permissive Waste or Neglect

Back 27

Occurs when land is allowed to fall into disrepair. Two Scenarios
1. Permissive Waste and Obligation to Repair
2. Permissive Waste and Obligation to pay all ordinary taxes

Front 28

Permissive waste and obligation to repair

Back 28

Life tenant must simply maintain the premises in reasonably good repair – may do more but at least maintain

Front 29

Permissive waste and obligation to pay all ordinary taxes

Back 29

Life tenant is obligated to pay all ordinary taxes on land to extent of income or profits from land – if there is no income or profit, life tenant is required to pay all ordinary taxes to the extent of premises for retail value

Front 30

Ameliorative Waste

Back 30

The LT must not engage in acts that will enhance the property’s value unless all interest holders are known and consent (meant to protect sentimental value)

Front 31

The Life Estate’s Accompanying Future Interest?

Back 31

If helt by O, the grantor – called a reversion
if held by third party – a remainder

Front 32

Future Interests Capable of creation in the grantor

Back 32

I. Possibility of Reverter – Accompanies FSD
II. Right of entry (also known as power of termination) – Accompanies FSSCS
III. The Reversion – future interest that arises in a grantor who transfers an estate of lesser quantum than she started with other than an FSD or FSSCS (life estate – term of years – life estate than term of years)

Front 33

Future Interests in Transferees

Back 33

If our future interest is held by someone other than the grantor, has to be either
I. Vested Remainder
II. Contingent remainder
III. Executory interest (shifting or springing)

Front 34

Three types of vested remainder

Back 34

Infeasibly Vested Remainder
The vested remainder subject to compete defeasance (also known as vested remainder subject to total divestment) and
Vested remainder subject to open

Front 35

What is a remainder?

Back 35

A remainder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created

Front 36

Remainder man is…

Back 36

Social, patient and polite
Sociable – never travels alone – meaning he always accompanies a preceding estate of known fixed duration. That preceding estate is usually a life estate or a term of years.
Patient and polite – never follow a defeasible fee
Cannot cut short or divest a prior transferee – in other words if your present estate is a defeasible fee, your future interest is not a remainder

Front 37

Remainders – Vested v. Contingent

Back 37

Remainder is Vested if it is both created in an ascertained person and is not subject to any condition precedent
A remainder is contingent if it is created in an unascertained (or unborn) person or is subject to a condition precedent or both (watch for commas – condition is condition precedent when it appears before the language, creating the remainderman, or is woven into the grant to the remainderman

Front 38

Contingent Remainders and The Rule of Destructibility of Contingent Remainders (Common Law)

Back 38

At common law, a contingent remainder was destroyed if it was still contingent at time preceding estate ended – B’s contningent remainders were destroyed.
Thus, O and O’s heirs would take in fee simple absolute
This is still the rule in Pennsylvania

Front 39

Contingent Remainders and The Rule of Destructibility of Contingent Remainders (Today)

Back 39

1. Destructibility rule has been established
2. Once person reaches condition – if still alive they take

Front 40

The Rule in Shelley’s Case

Back 40

Rule would only apply in one setting only at common law:
“O Conveys to A for life, then on A’s death, to A’s heirs.” A is alive.
Present and future interests would merge – giving A a FS absolute.
Rule of Law and Rule of Construction – would apply even in face of contrary grantor intent

Front 41

Rule in Shelley’s Case (Today)

Back 41

Has been virtually abolished. Thus, today when O conveys to A for life then to A’s heirs
1. A has a life estate
2. A’s as yet unknown heirs have contingent remainder
3. O has reversion since A could die without heirs.

Front 42

Doctrine of Worthier Title

Back 42

Also known as rule against remainder in grantor’s heirs. Still viable in most states today (But PA has abolished)
Applies when O, who is alive, tries to create a future interest in his heirs: “O to A for life then to O’s heirs”
If did not apply – A has life estate and O’s heirs have contingent remainder
Instead under D of WT – contingent remainder in O’s heirs is void. Thus, A has life estate and O has reversion
Rule of Construction – not of law – Grantor’s intent controls

Front 43

Infeasibly Vested Remainder

Back 43

Holder of this remainder is certain to acquire an estate in the future with no conditions attached

Front 44

The Vested Remainder Subject to complete Defeasance

Back 44

AKA the vested remainder subject to total divestment
1. Remainder man exists – his taking is NOT subject to any condition precedent. However, his right to possess could be cut short because of a condition subsequent
2. Use the “comma rule” – when conditional language in transfer follows language that, taken alone, could be set off by commas and would create a vested remainder, it is a condition subsequent (e.g O to A for life – remainder to B, provided, however, that if B dies under the age of 25, to C. A is alive. B is 20 years old.)
3. B will still take – but O has a reversion because he could still not meet the requirement
4. If it’s a condition precedent –O will hold onto it until B meets requirement

Front 45

The Vested Remainder Subject to Open

Back 45

Vested in a group of takers at least one of whom is qualified to take. But each class member’s share is subject to partial diminution because additional factors can still join in

Front 46

When is a class open or closed?

Back 46

1. Open if others can still join
2. Closed when no others can join – class will close applying common law of convenience. Ends when any member can demand possession
3. If members of class predecease holder of life estate or TOY or other thing that would bring about remainder – their share goes to their devisees or heirs

Front 47

The Womb Rule

Back 47

Child in the womb at time of death can join in the class

Front 48

Executory Interest

Back 48

A future interest created in transferee (a third party) which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or in the grantor or his heirs (springing)

Front 49

Shifting Executory Interest

Back 49

It always follows a defeasible fee and cuts short someone other than grantor
Doesn’t matter whether holder of interest has power to cut off estate or not

Front 50

Springing Executory Interest

Back 50

O conveys to A, if and when he marries. A is unmarried. A has springing executory interest. Must come from grantor

Front 51

The Rule Against Perpetuities

Back 51

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the measuring life

Front 52

Four Step Technique for addressing potential RAP problems

Back 52

1. Determine which future interests have been created by conveyance. 2. Identify the condition precedent to the vesting of the suspect future interest
3. Find measuring life. Look for person alive at date of conveyance and ask whether person’s death is relevant to the condition’s occurrence
4. Ask – will we know with certainty, within 21 years of death of measuring life – if interest holder can or cannot take? (separate card)

Front 53

What future interest are subject to RAP?

Back 53

Contingent remainders, executor interests, certain vested remainders subject to open

Front 54

What future interest are not subject to RAP?

Back 54

Future interests in O
Indefeasibly vested remainders
Vested Remainders subject to complete defeasance

Front 55

What happens if within 21 years of our measuring life we know our future holder can take?

Back 55

The conveyance is good. If there is any possibility, however remote, that the condition could or could not occur more than 21 years after death of measuring life, future interest is void. Common lawR AP is miserable –presumes the worst

Front 56

Two Bright Line Rules of Common Law Rap

Back 56

1. A gift to an open class that is conditioned on the members surviving an age beyond 21 violates the common law RAP
2. Many shifting executory interests violate the rap. Executory interests with no limit on the time within it must vest violates RAP

Front 57

Gift to Open class conditioned on members surviving age beyond 21

Back 57

“Bad as to one, bad as to all.”
To be valid – must show that the condition precedent to every class member taking will occur within the perpetuities period. If it is possible that disposition might vest too remotely with the respect of any member of the class, entire gift is void.
Even if gift is to kids and have two kids over 21 – gift is void. Class is not complete. A is still alive.

Front 58

Something to Consider under RAP Conditions

Back 58

The offensive part is knocked out. Could be a major grammatical difference if you use “so long as…” (create a FS determinable when the remainder gets knocked out) or “but If…” then we have a condition that gets knocked out – O has nothing

Front 59

The Charity-to-Charity Exception

Back 59

A gift from one charity to another will not violate RAP

Front 60

RAP REFORM

Back 60

1. Wait and See or Second Look Doctrine
2. Uniform Statutory Rule Against Perpetuities

Front 61

Wait and See or Second Look Doctrine

Back 61

1. Validity of any suspect future interest is determined on the basis of facts as they now exist, at the end of the measuring life
2. Eliminates the “what if” or “anything is possible” line of inquiry
3. Must have ACTUALLY unfolded
4. PA uses this approach. Gift would be struck down if actually vested beyond perpetuity period. However – no interests after Dec. 31, 2006 will be voided in PA as perpetuities, nor will any directions or authorizations to accumulate income

Front 62

Uniform Statutory Rules Against Perpetuities (USRAP)

Back 62

Codifies the common law RAP and in addition provides for an alternative 90 year visiting period

Front 63

Doctrines that both the “Wait and See” and USRAP reforms embrace

Back 63

1. The Cy Pres Doctrine “as near as possible” – if given disposition violates a rule, court may reform it in a way that most closely matches grantor’s intent while still complying with RAP
2. The reduction of any offensive age contingency to 21 years

Front 64

Three Forms of Concurrent Ownership

Back 64

The Joint Tenancy
The Tenancy by the Entirety
The Tenancy in Common

Front 65

The Joint Tenancy (defined)

Back 65

Two or More owned with the right of survivorship

Front 66

The Joint Tenancy (distinguishing characteristics)

Back 66

The right of survivorship – when one joint tenant dies, his share goes automatically to surviving other tenants. Alienable but not devisable or defeasible

Front 67

Creation of a joint tenancy

Back 67

T-Tip, the joint tenants must make their interests in
Time
Title
Identify
Possession
Also: Grantor must clearly express right of survivorship. Because joint tenancies are disfavored (avoid probate system) – the grantor must clearly express it

Front 68

Use of a Straw

Back 68

1. Person has fee simple absolute and wants to make it into joint tenancy
2. Transfers it to straw
3. Straw transfers it to him and friend so four unities are present

Front 69

Severance of a Joint Tenancy

Back 69

SPAM: Sale, Partition and Mortgage

Front 70

Severance and Sale

Back 70

A joint tenant may sell or transfer her interest during her lifetime
A. May do so secretly without other’s knowledge or consent
B. But severs the joint tenancy as to the seller’s interest because it disrupts the four unities
Thus, buyer is tenant in common. If there are more than two joint tenants in the first place – joint tenancy remains intact, as between the other non-transferring joint tenants
In equity – even entering into a contact for the sale of the share will sever the joint tenancy

Front 71

Severance and partition

Back 71

Three kinds
1. By voluntary agreement (peaceful way to end relationship)
2. Partition in Kind (court action to physical division of Blackacker, if in best interest of all
3. Forced Sale (court action in the best interests of all where Blackactre is sold and proceeds are divided properly. Generally when we have physical property)

Front 72

Severance and Mortage (MBE – title theory)

Back 72

MINORITY. One joint tenant’s execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share only in the majority of states who follow the title theory of mortgage

Front 73

Severance and Mortgage (MBE – lien theory)

Back 73

A joint tenant’s execution of a mortgage on his or her own interests will not sever a joint tenancy

Front 74

Severance and Mortgage (PA)

Back 74

PA is generally title theory, it adopts an intermediate view here.
1. Mortgage executed by all joint tenants does not result in severance of joint tenancy – like lien theory
2. Yet, if executed by fewer than all joint tenants – severed and TIC is created

Front 75

Tenancy by the Entirety (defined)

Back 75

A marital interest between married partners with the right of survivorship

Front 76

Tenancy By the Entirety (how to create)

Back 76

Between married parties with the right of survivorship – arises presumptively in any conveyance to married partners unless stated otherwise
PA – Does whatever the deed says
PA – actual marriage status critical

Front 77

TBE and Severance

Back 77

A VERY PROTECTED FORM OF CO-OWNERSHIP – virtually in alienable unilaterally
In PA severance is limited and individual spouse cannot convey or encumber. Judgment against one spouse does not attach to the lien

Front 78

PA – Survivorship Spouse Murder Rule

Back 78

If one spouse kills the other, spouse goes to slayed spouse’s heirs, slayer spouse holds onto the land until he dies and that goes to slayed spouse’s heirs too

Front 79

Tenancy in Common (Defined)

Back 79

Two or more ownership with no rights of survivorship

Front 80

Tenancy in common (three features to remember)

Back 80

1. Each co-tenant owns an individual part and each has a right to possess the whole
2. Each interest is devisable, defeasible and alienable. There are NO survivorship rights between the tenants in common
3. Presumption favors the tenancy in common

Front 81

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes(Possession)

Back 81

Each co-tenant is entitled to possess and enjoy the whole
If one co-tenant wrongfully excludes another co-tenant form possession of the whole or any part, he has committed wrongful ouster

Front 82

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (rent from co-tenant in exclusive possession)

Back 82

Absent ouster, a co-tenant in exclusive possession is not liable to others for rent

Front 83

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Rent from Third Parties)

Back 83

A co-tenant who leases all or part of the premises to a third-party must account to his co-tenants, providing them for their share of thent income

Front 84

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Adverse Possession)

Back 84

Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period (PA – 21 years) cannot acquire title to the exclusion of others – element of hostility is absent

Front 85

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Carrying Costs)

Back 85

Each co-tenant is responsible for her fair share of carrying cost (like taxes, mortgage interest payments) based upon his undivided share

Front 86

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes(repairs)

Back 86

The repairing co-tenant enjoys a right to contribution for reasonable repairs provided she has told others of the need
Tenants contribute according to their share of ownership

Front 87

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Improvements)

Back 87

During the life of the co-tenancy, there is no right to contribution for “improvements”
However, at partition, the improving co-tenant is entitled to a credit, equal to the increase in value due to their efforts.
Attendandtly – at partition, the so-called “improver” bears full liability for any drop in value caused by their efforts

Front 88

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Waste)

Back 88

A co-tenant must not commit waste
A co-tenant can bring a waste action during life of the cotenancy

Front 89

Rights and Duties of Co-Tenants for all Three Co-Ownership Regimes (Partition)

Back 89

A joint tenant in common has a right o bring an action for partition

Front 90

The Four Leaseholds of Nonfreehold Estates

Back 90

Tenancy For Years
Periodic tenancy
Tenancy at Will
Tenancy at Sufferance

Front 91

Tenancy for years (or estate for years or term of years)
I.

Back 91

A lease for a fixed period of time
II. Because term of years states form the outset when it will terminate – no notice needed to terminate
III. A term of years greater than one year must be in writing to be enforceable because of SOF
a. IN PA – three years.

Front 92

The Periodic Tenancy

Back 92

I. This is a lease which continues for successive intervals until L or T give proper notice to terminate
2. Created expressly (PA recognizes from Year to Year and from Month to Month
3. Can also arise by implication in any one of three ways (separate card)

Front 93

Periodic Tenancy by Implication – 3 ways

Back 93

1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals
2. Oral term of years in violation of statute of frauds creates an implied periodic tenancy measure by the way rent is tendered
3. The holdover – in a residential lease, if L elects to hold over a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by way rent is now tendered

Front 94

How to Terminate Periodic Tenancy

Back 94

Notice at least equal to the period itself unless otherwise agreed (e.g. month to month, one month)
However notice for a year is a cancellation period of six months
Parties may lengthen or shorten these common-la prescribed notice provisions by contract
Periodic tenancy must end at conclusion of natural lease period (e.g. if you cancel a month to month on May 15th – June 30th)

Front 95

The Tenancy at Will

Back 95

1. No fixed duration
2. Unless parties expressly agree to a tenancy at will, payment of regular rent will cause the court to imply the periodic tenancy (increasingly rare)
3. Tenancy at will may be terminated by either party at any time, but today a reasonable demand to quit usually needed

Front 96

Tenancy at Sufferance

Back 96

By definition a short time because
1. Created when T has wrongfully held over past the expiration of the lease. We give the wrongdoer a leasehold estate (the tenancy at sufferance) to permit L to collect rent
2. Tenancy at sufferance lasts only until L either evicts T or elects to hold T to a new tenancy

Front 97

Tenant’s Duties (Liability to Third Parties)

Back 97

A matter of tort law
1. T is responsible for keeping the premises in reasonably good repair
2. T is liable for injuries sustained by third parties T invited even where L expressly promised to make all repairs

Front 98

Tenant’s Duties (T’s Duty to Repair when Lease is Silent)

Back 98

Standard

Front 99

T must maintain the premises and make ordinary repairs
T must not commit waste
Law of fixtures
1.

Back 99

Walks with waste doctrine
2. When a tenant removes a fixture – he commits voluntary waste
3. T must not remove a fixture no matter that she installed it. Passess with ownership of land

Front 100

What is a fixture?

Back 100

Once movable chattel that by virtue of its annexation to realty objectively shows the intent to permanently improve the realty
Common Examples
Heating Systems
Custom Storm Windows
Furniture
Lighting Installments

Front 101

How to tell when tenant installation qualifies as fixture?

Back 101

Express agreement controls – any agreement on point between L and T is binding
In absence of agreement T may remove chattel that she installed so long as removal does not cause substantial harm to premises – OBJECTIVE JUDGMNET – don’t care about subjective intent

Front 102

Tenant’s Duty to Repair when T has expressly maintained in the covenant to maintain property in good condition for duration of lease

Back 102

At common law – T was liable to any loss to property including loss due to force of nature (veritable sitting duck)
Today’s majority rule – T may end the lease if the premises are destroyed without T’s fault (PA too – if substantial destruction to property occurs)

Front 103

If T breaches his duty to pay rent and is in possession of the premises

Back 103

Landlord’s only options are to evict through the courts or continue relationship and sue for rent owed – if landlord moves to evict – nonetheless entitled rent from tenant who is now tenant at sufferance until tenant vacates
Landlord must not engage in “self help” – i.e. change the locks, forcibly remove T, remove his possessions – this is flatly outlawed and could invite civil and criminal liability

Front 104

T breaches the duty to pay rent but is out of possession

Back 104

SIR
Surrender
Ignore
Re-Let

Front 105

Surrender (SIP)

Back 105

L chooses to treat ‘s abandonment as an implicit offer of surrender which he accepts – shown by words or action that she wishes to give up the lease
If greater than a year, must satisfy SOF

Front 106

Ignore

Back 106

Ignore abandonment and hold T responsible for unpaid rent, just as if T were still here. This opinion is only available to a minority of states

Front 107

Re-Let

Back 107

Re-Let the premises on the wrongdoer tenant’s behalf, and hold him or her liable for any deficiency
Majority Rule
1. L should at least try to re-let
2. This is a mitigation principal (L mitigates his damages)

Front 108

Landord’s Duties (Duty to Deliver Possession)

Back 108

Majority Rule (English Rule) requires L put T in physical possession of the premises. Thus if at the start of T’s lease a prior holdover T is still in possession, L has breached and new T gets damages
American Rule (small minority -Obliges L to deliver legal possession but not actual possession. No damages for holdover tenant

Front 109

Implied covenant of quiet enjoyment

Back 109

Applies to both residential and commercial leases – T has right to quiet use and enjoyment of premises without interference from L

Front 110

Breach by Actual wrongful Eviction

Back 110

Occurs when L wrongfully evicts T

Front 111

Breach by Constructive Eviction

Back 111

SING
1. Substantial Interference-due to L’s actions or failures, chronic but not necessarily permanent (e.g. flooding when it rains)
2. Notice – T must tell L of the problem and L must fail to act meaningfully
3. Goodbye – get out, vacate within reasonable time after landlord fails to fix problem

Front 112

Breach by Constructive Eviction in PA

Back 112

Landlord need not make entire premises uninhabitable – sufficient if interference deprives the tenant of part of the premises

Front 113

Landord’s Duties-Landlord liable or acts of other tenants?

Back 113

Nah
Two exceptions.
L must not permit a nuisance on site
L must control common areas

Front 114

Implied warranty of habitality

Back 114

Nonwaivable
Applies only to residential leases
Standard: The premises must be fit for basic human dwelling, bare living requirements must be met
1. Appropriate standard may be supplied by case law or housing code
2. The sorts of problems to trigger breach of the implied warranty of habitability include no heat in winter, no running water, no plumbing

Front 115

T’s Entitlements when Warranty of Habitability is breached

Back 115

Big difference from constructive eviction – Does not require you to vacate MR3
1. Move Out! And end the lease – but T doesn’t have to
2. Repair and deduct, allowable by statute in a growing number of jurisdictions
3. Reduce or withhold all rent until the court determines fair rental value. Typically, T must place withheld rent in escrow to show her good faith
4. Remain in possession, pay rent and affirmatively seek money damages

Front 116

Implied Warranty of Habitability – PA Elenents

Back 116

1. Gave notice to landlord of defect or condition
2. Landlord had reasonable opportunity to make necessary repairs
3. Landlord failed to make repairs (PA has yet to impose duty on landlord to make repairs or necessarily expose landlord to tort liability for repairs)

Front 117

PA Breach of Warranty of Habitability - Damages

Back 117

Measured by an abatement of the rent equal to the percentage of the rent that reflects the diminution in use for the intended period

Front 118

Retaliatory Eviction

Back 118

If T lawfully reports L for housing code violations, L is barred from penalizing T, by for example
I. Raising rent
II. Ending the lease
III. Harassing T
IV. Taking other reprisals

Front 119

The assignment v. the Sublease

Back 119

In the absence of some prohibition in the lease, a T may freely transfer his or her interest in the whole (thereby accomplishing an assignment) or in part (thereby accomplishing a sublease)

Front 120

Can L prohibit T from assigning or subletting?

Back 120

In the lease he can prohibit from assigning or subletting without L’s prior written approval
However – once he consents to one transfer by T L waives the right to object to transfers by that T unless L reserves the right

Front 121

The assignment (privity of estate and contract)

Back 121

L and T2 are in privity of estate
L and T2 are NOT in privity of contract UNLESS T2 expressly assumed all promises contained in the original lease
L and T1 are no longer in privity of estate (property-based nexus)
However, L and T1 remain in privity of contract (L and T1 are secondarily liable to each other

Front 122

The sublease (privity of estate and contract)

Back 122

L and sublessee are in neither privity of estate nor privity of contract (sublessor transfers less than what he has)

Front 123

Landord’s Tort Liability

Back 123

Common Law – Caveat Lessee (HARSH)
LL has no duty to make the premises safe

Front 124

Five Exceptions to Caveat Lessee

Back 124

(remember when tenant learns of the se exceptions to the harsh common law – he or she CLAPS)
1. Common Areas – L must maintain all common hallways and stairwells
2. Latent defects rule-must warn T of hidden defects that L knows about or should have known about or merely a duty to warn
3. Assumption of Repairs – landlord who voluntarily makes repairs must complete them with reasonable care
4. Public Use Rule – L who leases public spance and who should know, because of the nature of the defect and the length of the lease that T will not repair, is liable for any defects on the premises
5. Short term lease of furnished dwelling – L is liable for any defect on sight

Front 125

PA on Landlord’s Tort Liability

Back 125

Follows modern trend and imposes general duty of reasonable care on landlords – LL who retains control over property is liable for injuries if, by the exercise of reasonable care – landlord could have discovered condition and made it safe – does not extend to third party criminal acts unless LL undertakes to secure the area and fosters the tenants’ reliance on his efforts

Front 126

Easement (defined)

Back 126

The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another’s land, called the servient tenement

Front 127

Easement (Common examples)

Back 127

The privilege to lay utility lines on another’s land, the easement giving it’s holder the right of access across a land tract

Front 128

Easements may be

Back 128

Affirmative – the right to do something on servient land or
Negative (on another card)

Front 129

Negative Easements

Back 129

Negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in fourt categories – LASS
Light
Air
Support
Streamwater form artificial flow
Some jxns have a right to scenic view
IMPORTANT: Can only be created expressly by writing signed by the grantor. There is no natural or automatic right to a negative easement

Front 130

Easement Appurtenant

Back 130

Benefits its holder in his physical use or enjoyment of his property

Front 131

Elements of an Easement Appurtentant

Back 131

Dominent Tenement-gets benefit
Servient Tenement-bears the burden
Always expressed in terms of the dominant estate—B has an easement appurtenant to B’s dominant tenement if he has right of way across A’s land

Front 132

Easement in Gross

Back 132

Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here—servient land is burdened. However, there is no benefitted or dominant tenement. Only one parcel involved

Front 133

Common Example

Back 133

1. Right to place a billboard on someone’s land
2. Fish or swim in someone’s pond
3. Right to lay power lines on another’s land

Front 134

Easement and Transferability

Back 134

Appurtenant easement passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance.
The burden of the easement appurtenant also passes automatically with the servient estate unless a new owner is a bona fide purchaser without notice of easement
An easement in gross is not transferable unless it is for commercial purposes

Front 135

How To Create Affirmative Easement

Back 135

PING
Prescription
Implication
Necessity
Grant

Front 136

Easement by Grant

Back 136

An easement to endure for more than one year must be in writing that complies with the formal elements of a deed. This is because of the SOF.
The writing to evidence the easement is called a deed of easement

Front 137

Easement by implication

Back 137

Also known as the easement implied from existing use. Person owns two lots and one is hooked up to a sewer drain located on the other. If he sold the lot without the drain, the court may nonetheless find the easement.
Here’s how. If the previous use
1. Was apparent and
2. The parties expected that it would continue because it is reasonably necessary to use and enjoyment of the land

Front 138

By necessity

Back 138

The landlocked setting. An easement of right of way will be implied by necessity if a grantor conveys a portion of his land with no other way out except over part of his remaining land

Front 139

By Prescription

Back 139

An easement may be acquired by satisfying the elements of adverse possession
a. Continuous for Statutory period
b. Open and Notorious
c. Actual Use
d. Hostile Use
e. NOTE: Permission defeats the acquisition of an easement by prescription. Easement by prescription requires use be hostile

Front 140

Scope of easement Determined by

Back 140

Terms of Grant of the recording that created it

Front 141

Termination of an easement

Back 141

END CRAMP
Estoppel
Necessity
Destruction
Condemnation of the servient estate
Release
Abandonment
Merger Docrtine
Prescription

Front 142

Ending Easements (Estopppel)

Back 142

Servant owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced

Front 143

Ending Easements (Necessity)

Back 143

Easements created by necessity expire as soon as the need ends
However, if the easement attributable to necessity, was nonetheless created by express grant, it won’t end when the need ends

Front 144

Ending Easements (Destruction)

Back 144

Destruction of the servient land ends the easement, other than through the willful conduct of the servient owner

Front 145

Ending Easements (Condemnation)

Back 145

Condemnation of the servient estate ends the easement

Front 146

Ending Easements (Release)

Back 146

A written release given by the easement holder to the servient owner

Front 147

Ending Easements (Abandonment)

Back 147

The easement holder must demonstrate by physical action
1. The intent to never use the easement again
2. Requires PHYSICAL ACTION of the easement owner

Front 148

Merger Doctrine

Back 148

Unity of Ownership.
When title to the easement and title to the easement and title to the servient land become vested in the same person
NOTE: If complete unity of title is achieved, the easement is extinguished. Even though there may be later separation of title, easement is not revived

Front 149

Ending Easements (Prescription)

Back 149

Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession

Front 150

The License (Defined)

Back 150

A mere privilege to enter another’s land for some delineated purpose
Not subject to the SOF
Licensees are freely revocable at the will of the licensor unless estoppel to bar revocation
Example: A ticket

Front 151

Oral Easements

Back 151

There’s no such thing – creates instead a freely revocable licence

Front 152

Estoppel (Licenses)

Back 152

Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the licensee’s continuation

Front 153

The Profit

Back 153

Entitles its holders to enter the servient land and take form it the soil or some substance of the soil (material, oil, timber)
The profit shares all the rules form easements, although maybe not if the scope is exceeded

Front 154

Covenant (defined)

Back 154

A promise to do or not do something related to land. It is unlike the easement because it is not the grant of a property interest but rather a contractual limitation or promise regarding land
Can be negative (restrictive covenants) – a promise to refrain from doing something on the land
Can also be affirmative – promise to do something related to land (plant our common fence)

Front 155

How do we know whether to construe promise as covenant or equitable servitude

Back 155

on basis of remedy
When P wants money damages – covenant
When P wants injunction – equitable servitude

Front 156

When does the Burden run?

Back 156

WITHN
Writing – original promise between A and B was in writing
Intent-original parties intended contract would run – courts are generous in finding requisite intent
Touch and Concern the Land – of and pertaing to – the promise must affect the parties legal relations as landowners and not simply as members of the community at large – could be to pay money – like homeowners fees
Horizontal and Vertical Privity (separate card)
Notice – have notice of promises when you took

Front 157

Horizontal Privity

Back 157

Requires nexus between original coventors
Requires that they be in succession of estate, meaning they were grantor/grantee, landlord tenant, mortgagor/mortgagee relationship

Front 158

Vertical Privity

Back 158

Requires nexus between seller of burdened land and his successor – simply some non-hostile nexus, like contract
The only time vertical privity will be absent is if successor acquired her interest through AP

Front 159

Benefit Runs with the Land When…

Back 159

WITV
Writing – original promise form A to B is in writing
Intent – original parties intended for benefit to run
Touch and Concern – promise affects parties as landowners
Vertical privity – horiz privity not required

Front 160

Equitable Servitudes (defined)

Back 160

ES is a promise that equity will enforce against successors. It is accompanied by injunctive relief

Front 161

How to Formulate

Back 161

Can I get a WITNES!
Writing
Intent – parties intend that the promise would bind successors
Touch and Concern – promise attaches parties as landowners
Notice – successors of the burdened land had notice of the promise
NOTEL privity is not required to bind successors

Front 162

Implied Equtiable Servitude

Back 162

Also known as the general or common scheme doctrine.
A homeowner can be enjoined to a common scheme or plan, even if the servitude was not in his deed, if
1. When sales began, subdivider had a general scheme of residential development that included the D’s lot the D’s lotholder had notice of the promise contained in prior deeds (actual, constructive, or inquiry)

Front 163

Equitable Defenses to Enforcement of an Equitable Servitude

Back 163

1. Changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed
2. What is never good enough – mere products of limited change

Front 164

Adverse Possession (Basic Concept)

Back 164

Possession for a statutorily prescribed period of time, can, if certain elements are met, ripen into title

Front 165

Adverse Possession (Elements)

Back 165

COAH
1. Continuous – uninterrupted for the statutory period
2. Open and Notorious – sort of possession that usual owner would make under circumstances
3. Actual – must be actual not symbolic entry
4. Hostile – possessor doesn’t have true owner’s consent to be there.
Possessor’s state of mind is irrelevant

Front 166

Tacking

Back 166

One adverse possessor may tack on this time with the land with his precessors time so long as there’s privity which is satisfied by a nonhostile nexus, such as blood, contract will
Tacking is not allowed when there is an ouster

Front 167

Adverse Possession (Disabilities)

Back 167

Statute of limitations will not run against a true owner who is affected by disability at the start of the adverse possession. Common disabilities include insanity, infancy, imprisonment

Front 168

Adverse Possession – PA Distinctions

Back 168

1. Paying property taxes not required for establishing title by AP
2. Land that can’t be AP’d – land owner by local gov’ts may be adversely possessed unless devoted to public use

Front 169

Every Conveyance is a two step process

Back 169

1. The land contract which endures until
2. the closing, where the deed becomes operative document

Front 170

The Land contract and the statute of frauds (standard)

Back 170

Land contract must be in writing, signed by party to be bound
Must describe Bacre
Must state some consideration

Front 171

If the amount of land recited in the land contract is more than actual size of the parcel

Back 171

Specific performance with a pro rata reduction in price

Front 172

Execption

Back 172

Doctrine of Part Performance. In on your facts you have two of the following three, doctrine is satisfied and equity will decree specific performance of an oral contract for the sale of land
1. Possession
2. Payment (all or part of the price) and/or
3. Substantial improvement

Front 173

The problem of risk of loss

Back 173

Apply doctrine of equitable conversion(PA does this)

Front 174

Doctrine of equitable conversion

Back 174

In equity, once contract is signed, B owns the land, subject of course to the condition that he pays purchase price

Front 175

Destruction in Land Sale Contracts

Back 175

If the interim between contract and closing, Blackacre is destroyed through no fault of either party, B bears risk of loss unless contract says otherwise

Front 176

Two implied promises in every land contract

Back 176

Seller promises to provide marketable title
Seller Promises not to make any false statements of material fact

Front 177

Seller’s Promise to Provide marketable Title (standard)

Back 177

Title free from reasonable doubt (free from lawsuits and threat of litigation

Front 178

Three Circumstances that will render the title unmarketable

Back 178

AP
Encumberances
Zoning Violations

Front 179

Three Circumstances that will render the title unmarketable (AP)

Back 179

If even part of the title rests on AP it is unmarketable
Seller must be able to provide good second title

Front 180

Three Circumstances that will render the title unmarketable (Encumberances)

Back 180

1. Marketable title means an unencumbered fee simple
2. Thus, servitudes and mortgages render title unmarketable unless they tell you that buyer has waived that particular intermediary
3. Seller has right to satisfy an outstanding mortgage or lien at the closing with the proceeds of the sale. Thus the buyer can’t claim that title is unmarketable because it is subject to a mortgage prior to closing, so long as the parties understand that the closing will result in the mortgage being satisfied or discharged

Front 181

Three Circumstances that will render the title unmarketable (zoning violations)

Back 181

Title is unmarketable when Bacre violates zoning ordinace

Front 182

Seller promises not to make any false statement of material fact

Back 182

1. The majority of states now also hold seller liable for failure to disclose latent material defects (liable for material lies and material omissions)
2. If the contract contains a general disclaimer of liability (e.g. property sold as is or with all faults, won’t excuse seller for liability for fraud or failure to disclose)

Front 183

Land Contract Does Not Contain…

Back 183

Implied warranties of fitness or habitability.
Cavea emptor
One important exception – warranty for fitness and workmanlike construction if seller is builder-vendor

Front 184

The Deed (general)

Back 184

Controlling doc is now the deed – passes legal title from seller to buyer. Must be LEAD. Lawfully executed and delievered

Front 185

Lawful Execution (standard)

Back 185

One half of the deed.
1. Deed must be in writing signed by the grantor
2. Deed need not recite consideration, nor must consideration pass to make the deed valid
3. Description of the land does not have to be perfect – just an unambiguous description of the land

Front 186

The Delivery Requirement

Back 186

Second half of deed Could be satisfied when grantor physically or manually transfers deed to grantee (permissible here to use the main, agent or messenger)
Does not necessarily require actual physical transfer of the instrument itself – legal standard of delivery tests only the intent to be bound, irrespective of whether the deed was handed over
Recipients express rejection of the deed defeats delivery
If the delivery, absolute on its face, is transferred to a grantee with an oral condition – the oral condition drops out
Delivery by Escrow is okay (separate card)

Front 187

Delivery by Escrow

Back 187

Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to the grantee once certain conditions are met
Once they are met – title passes to grantee
Advantage of escrow – if grantor dies or becomes incompetent, or is otherwise unavailable before the express conditions are met – title still passes from escrow agent to grantee once the conditions are met

Front 188

Pa – taker’s of buyer’s real property demanding liens

Back 188

Takers cannot demand that liens on the land be paid out of her estate unless buyer so directs

Front 189

Three types of deeds

Back 189

Quitclaim
General warranty deed
Statutory Special Warranty Deed (bargain and sale deed)

Front 190

Quitclaim

Back 190

Contains no covenants. Grantor isn’t even promising tha the has the title to convey. Worst deed a buyer can hope for.
Now-grantor did implicitly promise in the land contract to provide marketable title at closing, but any problems after closing, seller is off the hook

Front 191

The general warranty deed

Back 191

Best deed buyer could hope for. Warrants against all deeds in title including those due to grantor’s precedessors. Typically contains all six covenants – present and future.
SOL for breach of present covenant begins to run from instant of delivery

Front 192

Present Covenants

Back 192

Can only be breached at time of delivery
1. Covenant of seisin – grantor promises he owns the estate
2. Covenant of right to convey – grantor has power to transfer, no temporary restraints on alienation. Is of sound mind and requisite age
3. Covenant against encumbrances – no servitude or lien on Bacre

Front 193

The future covenants

Back 193

Not breached, if ever, until grantee is disturbed in possession. Thus – SOL for breach of a future covenant will not begin to run until that future date

1. Covenant for Quiet enjoyment – Grantee won’t be disturbed in his possession by a third party’s lawful claim of title
2. Covenant of warranty – grantor promises to defend grantee against any later claims of title asserted by others
3. Covenant for Further Assurances – Grantor promises to do whatever is needed and the future to protect title

Front 194

Statutory Special Warranty Deed (bargain and sale deed)

Back 194

Provided for by statute in many states, this deed contains two promsies that the grantor made only on behalf of himself (Grantor makes no misrepresentations on behalf of his predecessors in interest).
Promises that he hasn’t conveyed bacre to anyone other than the grantee or
Bacre is free from encumbrances made by grantor

Front 195

Motivating hypo for these questions

Back 195

O conveys Blackacre to A. Later, O conveys Blackacre, the same parcel, to B. O, our double dealer, has skipped town. In the battle of A vs. B, who wins?.
If B is BFP and notice jxn, B wins whether or not she recorded before A.
If B is BFP and we are in race notice jxn, B wins if she recorded properly before A

Front 196

Recording Acts exist

Back 196

only to protect a BFP and mortgagees

Front 197

BFP is one who

Back 197

Buys Bacre for value and without notice that someone else got there first

Front 198

Three Forms of Notice

Back 198

Actual
Inquiry
Record
(Inquiry and Record are constructive)

Front 199

Actual Notice

Back 199

Prior to B’s closing, B learns of A

Front 200

Inquiry Notice

Back 200

Whether he looks or not, B is on inquiry notice of whatever an examination of bacre would show
Buyer of real estate has duty to inspect before transfer of title to see, for example, whether anyone else is in possession. B has inquiry, whether buyer actually bothered to inspect or not
Thus in our model, if A was in possession, B would have been on inquiry notice of this fact, thereby defeating B’s status as a BFP
If a recorded instrument makes reference to an unrecorded transaction, grantee is on inquiry notice of whatever a reasonable follow-up would show

Front 201

Record Notice

Back 201

B’s record notice of A’s deed if at the time B takes, A’s deed was recorded properly.
In PA – properly recorded deed will provide constructive notice even if defectively indexed

Front 202

Notice Statute

Back 202

A conveyance of an interst in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded
I. If at the time B takes, he is a BFP, he wins. It doesn’t matter that A may ultimately record first, before B does. It won’t matter in the A v. B contest that B never records
II. The Last BFP

Front 203

Race-Notice Statute

Back 203

PA has this – any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded
To prevail – B must be BFP and must win the race to record

Front 204

To give record notice to subsequent takers

Back 204

Deed must be recorded properly within chain of title which refers to the sequence of recorded docs capable of giving record notice to later takers. In most states, chain of title is established through a title ssearch of the grantor/grantee index

Front 205

The Shelter Rue

Back 205

One who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against. In other words, the transferee takes shelter in the status of her transferor, and thereby “steps in the shoes of the BFP even though she otherwise fails to meet BFP status.

Front 206

The Problem of the Wild Deed

Back 206

If a deed entered on the records has a grantor unconnected to the chain of title, the deed is a wild deed. It is incapable of giving record notice of its existence

Front 207

Estoppel by Deed

Back 207

One who conveys realty in which he has no interest is estopped from denying the validty of that conveyance if he later acquires that previously transferred interest

Front 208

How does one create a mortgae?

Back 208

The conveyance of a security interest in land, intended by the parties to be collateral for the repayment of debt

Front 209

Mortage is the union of two elements

Back 209

debt
Voluntary lien in debtor’s land to secure the debt

Front 210

Vocab

Back 210

Debtor is mortgagor
Cretior is mortgagee

Front 211

Mortgage and SOF

Back 211

Mortgage must be in writing to satisfy SOF

Front 212

Alternate names for mortgage

Back 212

The note
Mortgage Deed
Deed of Trust
Sale Leaseback
Security interest in land

Front 213

Equitable Mortgage

Back 213

O owns Bacre. Creditor lends O sum of money. Parties understand that Bacre is the collateral for that debt. However, instead of executing the note or mortgage deed, O hands creditor a deed to Bacre that is absolute on its face.
Between O and Creditor – parol evidence admissible to show parties’ intent
But if creditor proceeds to sell it to bona fide purchase X – X owns the land and O’s only recourse is to sue the creditor for fraud and the sale proceeds

Front 214

Once a Mortgage has been Created – the parties rights

Back 214

Unless and until foreclosure – debtor-mortgagor has title and right to possess
Creditor mortgagee has a lien

Front 215

Mortgage - transfer of interest

Back 215

Automatically follows a properly transferred note

Front 216

Creditor-mortgagee can transfer interest by

Back 216

Endorsing the note and deferring it to transferee
Executing a separate document of assignment

Front 217

Holder in due Course (Rights)

Back 217

If a mortgage note was endorsed and delivered, the transferee is eligible to become a holder in due course. Means that he takes the note free of any personal defenses that could have been raised by against original creditor.
Thus – he may foreclose the mortgage despite any such personal defense.
Yet – holder is still subject to REAL defenses

Front 218

Personal Defenses include

Back 218

Lack of consideration, fraud in the inducement, unconscionability, waiver, estoppel

Front 219

Real defenses

Back 219

Material
Alteration
Durress
Fraud in the Factum
Incapacity
Illegality
Infancy
Insolvency

Front 220

To be a holder in due course (criteria)

Back 220

Note must be negotiable, made payable to the named mortgagee
The original note must be indorsed, signed by the named mortgagee
The original note must be delivered to the transferee. A photocopy is unacceptable
The transferee must take the note in good faith without any notice of illegality AND
The transferee must pay value for the note meaning some amount that is more than nominal

Front 221

If Debtor-mortgagor transfers a mortgaged property

Back 221

The lien remains on the land so long as the mortgage was properly recorded (recording statutes protect mortgages)
If BFP records his interest before the mortgagee, he can prevail in a notice jurisdiction

Front 222

Who is personally liable on the debtor-mortagor transfers interest

Back 222

If B assumed the mortgage – both O and P are personally liable (B is primarily liable, O remains secondarily liable)
If B takes “subject to mortgage” – B assumes no personal liability, only O is personally liable, but if recorded the mortgage stays with the land. Thus, if O doesn’t pay, mortgage may be foreclosed

Front 223

How must mortgagee creditor look to land for satisfaction?

Back 223

Foreclose (the proper judicial action). At foreclosure – land is sold, proceeds go to satisfying the debt

Front 224

If foreclosure doesn’t satisfy the debt

Back 224

Mortgagee may bring deficiency judgment against debtor

Front 225

What if there’s a surplus in the foreclosure sale?

Back 225

Jr. liens paid in order of priority, remaining surplus to debtorPriroirty in a Mortgage sale First: Atty’s fees, foreclosure expenses, any accrued interest on first bank’s lien
Then the sale proceeds are used to pay off the mortgages in the order of their priority. Each claimant is entitled to satisfaction in full before the subordinated lienholder may take
Deficient banks should be able to proceed for deficiency judgment
Surplus goes to debtor

Front 226

PA Foreclosure Agreement

Back 226

Agreement for forebear from foreclosure represents an interest in land subject to SOF and must be in writing

Front 227

Foreclosure and junior mortgages

Back 227

Interests junior to mortgage before being foreclosed but will not affect senior interests
Those with interests subordinate to the foreclosing parties are necessary parties to the foreclosure action
Debtor mortgagor is also considered necessary party and must be joined, particularly if creditor wishes to proceed against for personal deficiency judgment
Failure to include necessary party results in preservation of that party’s claim, despite the foreclosure and sale.
Thus if a necessary party is not joined, mortgage remains on the land.

Front 228

Foreclosure does not affect

Back 228

Any interest senior to mortgage being foreclosed.
But buyer at sale takes land subject to such interest – not personally liable to the senior debt, but as a practical matter if that debt is not paid, sooner or later, ya gonna get foreclosed upon
TIP: only pay enough to get the land, and save money to pay off senior creditor

Front 229

Priority (recording and rights)

Back 229

You have to record your mortgage to have priority
First in time, first in right

Front 230

Purchase money mortgage

Back 230

Mortgage given to secure loan that enables debtor to acquire the encumbered land
The purchase money has superpriority against all other interested parties on the land

Front 231

Subordination agreements

Back 231

Allowed – senior creditors may subordinate its priorty to a junior creditor

Front 232

Equitable redemption

Back 232

Universally recognized up to date of sale. At any time prior to the foreclosure debtor can try to redeem the land
Once a valid foreclosure has taken place, the right to equitable redemption is gone
Exercised by paying off missing payments, plus interests, plus costs
What if the mortage or note contained an acceleration clause (Agreement that permits mortgagee to declare full balance due in event of default) – full balance dude plus costs must be paid off
Debtor-mortgagor may not waive the right to redeem in the mortgage itself– this is called clogging of equity and is prohibited

Front 233

Statutory Redemption

Back 233

Not recognized in PA
Recognized in one-half of states, gives debtor-mortagor right to redeem some fixed period after foreclosure sale has occurred (typically six months to a year)
Applies after foreclosure sale price rather than the amount of the original
Most states mortgagor will have right o possess during the statutory period
When he redeems, effect is to nullify the foreclosure sale

Front 234

Lateral Support

Back 234

I. If land is improved by buildings and an adjacent landowner excavation causes that improved land to cave in, excavator will be liable only if negligent
II. Strict liability does not attach the excavator’s actions unless P shows that, because of D’s actions, P’s improved land would have collapsed (In other words – P must show improvements on his land did not contribute to land collapses)

Front 235

The Riparian Doctrine

Back 235

The Water belongs to those who own the land bordering the water course. These people are known as riparians, who share the right to reasonable use of the water
Thus, one riparian will be liable if his or her use unreasonably interferes with the other’s use

Front 236

Prior Appropriation Doctrine

Back 236

Water belongs initially to the state but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner
Rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Thus, a person can acquire the right to divert and use water from a water course merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create appropriation right.Groundwater Also known as percolating water, it is the water beneath the surface of the earth that is not confined to a known chattel
Surface owner is entitled to make reasomable use of it
However, use must not be wasteful

Front 237

Surface waters

Back 237

Those which come from rain, springs or melting snow, and which have not yet reached a natural watercourse basin

Front 238

Common Enemy Rule

Back 238

Surface water is a nemesis, hence common enemy rule
A landowner may change drainage or make any other changes/improvements on its land to combat the flow of surface water
May courts have modified the common enemy rule as to prohibit unnecessary harm to other’s land

Front 239

Natural Flow Theory

Back 239

Owners cannot alter the natural drainage power of water unless such change is reasonable

Front 240

Possessor’s Rights

Back 240

Right to be free from trespass and nuisance

Front 241

Trespass

Back 241

Invasion of land by tangible physical object – to remove a trespasser bring an ejectment action

Front 242

Private nuisance

Back 242

Substantial and unreasonable interference with another’s use and enjoyment of land.
Unlike trespass, nuisance could give rise to a nuisance but not a trespass
Nuisance and the hypersensitive plaintiff – not a nuisance for plaintiff’s particular hypersensitive preclutivities

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Eminent domain

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Government’s 5th amendment power to take private property for public use in exchange for just compensation

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Explicit Takings

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Act of governmental condemns your land to make way for public highway

Front 245

Implicit or Regulatory Takings

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Government regulation that, although not intended to be a taking, has the same effectlRemedy for regulatory taking Gov’t must either
Compensate owner or
Terminate regulation and pay owner for damage that occurred while it was ineffected

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Zoning (defined)

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Pursuant to its police powers, gov’t may reenact statutes to reasonable control land use

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The variance

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The principal means to achieve flexibility in zoning
Proponent must show
I. undue hardship
II. Variance won’t decrease neighboring property values
Variance is granted or denied by administrative action

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The nonconforming use

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A once lawful existing use now deemed noncomforming by a new zoning ordinace
1. Cannot be eliminated all at once unless just compensation is paid
2. Otherwise, it could be deemed unconstitutional taking

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Unconstitutional Exactions

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Those amenities government seeks in exchange for granting permission to build
To pass constitutional scrutiny these exactions must be reasonably related both in nature and scope to impair on proposed development
If not – exactions are unconstituional