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81 Cards in this Set

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Co-tenants: wrongful ouster
Where one co-tenant wrongfully excludes another co-tenant from possession the whole or any part he has committed wrongful ouster.
Co-tenant in exclusive possession (rent)
Is not liable to the other for rent. But a co-tenant who leases all or part of prop to 3d party must account to co-tenants and provide them w their fair share of the rental income.
Co-tenant in adverse possession
Generally, No Adverse Possession for Co-Tenants!
Unless he has ousted other co-tenants, one co-tenant in exclusive possession for the statutory period cannot adversely possess. Why? Lacks required hostility. There is no hostility because there was no ouster
Co-tenant responsibility for carrying costs
Each co-tenant is responsible for fair share of carrying costs-taxes, mortgages, based on the undivided share that each holds.
Co-tenant responsibility for repairs
Repairing co-tenant enjoys right to contribution for reasonable & necessary repairs. Provided that repairing co-tenant has told the others of the need. Co-tenants must contribute based on the undivided share that each holds.
Co-tenant responsibility for Improvements
During the life of the co-tenancy there is no right to contribution to “improvements.”
One co-tenants “improvements” could be another’s “destruction.”
But at partition the improving co-tenant is entitled to a credit for any increase in value brought on improvements.
Hwvr, at partition the improving co-tenant is liable for any decrease in value
Waste among co-tenants
Co-tenant may bring and action for waste during the life of the co-tenancy. (waste: voluntary, permissive and ameliorative.)
Partition for joint tenancy
Joint tenant or TIC has right to bring action for partition.
Tenant’s duties (3)
1) T’s liability to 3d parties
2) T duty to repair
3) T duty to pay rent
T liability to 3d parties
1) Tort doctrine. T responsible for keeping premises in reasonable good repair. T liable for injury to his 3d party invitees.
(a) Even where L expressly promised to make all necessary repairs. But T may seek indemnification from L.
T’s duty to repair
1) Where lease is silent as to duty to repair
(a) T must maintain premises and make ordinary repairs
(b) T must not commit waste (3 types? Voluntary, permissive, ameliorative)
Waste & Law of fixtures
1) Doctrine of waste walks with law of fixtures!
(a) When tenant removes a fixture he commits voluntary waste
(b) Fixture is once movable chattel that by virtue of annexation to reality objectively shows the intent to permanently improve the reality.
(c) I.e. heating, plumbing, custom windows, soft lighting.
1. But express agreement between L & T control
2. without agreement, T may remove chattel he installed so long as removal does not cause substantial harm to premises.
3. if removal will cause substantial damage, then objectively T has shown intent to install a fixture!
2) T must not remove a fixture, not matter that T installed it!
(a) Fixtures pass w ownership of land.
T’s duty to repair where T expressly covenanted to maintain for duration
1) At common law, historically: T responsible for any loss to the property, including loss attributable to force of nature.
2) Modern majority holds T may terminate the lease if the premises are destroyed w/out fault by T.
T’s duty to pay rent
1) Where T breaches duty and is in possession of the premises. L's only option is to evict through courts or continue relationship and sue for rent due. Landlord who evicts is still entitled to rent until tenant at sufferance vacates.
2) Landlord must not engage in self-help, i.e. changing the locks or forcible removable of T or possessions! Civil and criminal liability for L engaged in self-help.
3) Where T is in breach but is out of possession. I.e. T vacates with time left on term of lease SIR
(a) S Surrender. L treats abandonment as implicit offer of surrender which L accepts.
1. Surrender is T by word or action communicates desire to quit the lease. Where unexpired term 1+ yr surrender must be in writing—SOF.
(b) I Ignore abandonment and hold T responsible for unpaid rent just as if T were still in possession. (minority rule)
(c) R Re-let the premises, hold T liable for any deficiency. Majority. L must mitigate by at least good faith effort to re-let.
Landlords duty to deliver possession
1) Majority (English) Rule. Requires that L put T in actual physical possession of premises. If at start of lese prior holdover tenant is in possession L is in breach and T gets damages.
2) American (small minority) rule: does not require L put T in actual physical possession. Only required to give legal possession
Implied covenant of Quiet Enjoyment
1) Applies to both residential & commercial leases
2) T has a right to quiet use & enjoyment of the premises without interference by the landlord
3) L breaches by actual wrongful eviction when L wrongfully evicts or excludes from premises.
4) Breach by constructive eviction violates implied covenant
(a) Constructive eviction SING
1. SI Substantial Interference
a) Substantial Interference attributable to Ls action or failure to act. Substantial Interference is chronic or recurring. Every time it rains...
2. N Notice
a) T must give L notice and L must fail to act meaningfully.
3. G Goodbye or Get Out. T must vacate within reasonable time after L fails to fix.
5) L is not liable for bothersome conduct of other tenants except
(a) L has duty not to permit nuisance on premises.
(b) L must control common areas.
Implied warranty of habitability
1) Implicit promise applies only to residential leases not commercial leases.
2) Requires premises must be fit for basic human habitation. Bare living requirements must be met.
(a) Applicable stndrd may be found in local housing code or judicial determinations.
(b) I.e. failure to provide heat in winter. No plumbing or running water.
3) Warranty is non-waivable.
Tenant entitlement where implied warranty of habitability breached
1) MR 3
(a) Move
(b) Repair and deduct
(c) Reduce or withhold rent till court determines fair rental value. T places rent in escrow.
(d) Remain in possession, pay rent and seek damages. Contrast constructive eviction for breach of implied covenant of quiet enjoyment.
Retaliatory eviction
1) If T lawfully reports housing code violations L is barred from
(a) Penalizing T by raising rent
(b) Evicting or terminating lease
(c) Harassing
Assignment & sublease limitations
1) In the absence of prohibition in lease T may freely transfer his interest in whole,assignment, or in part, sublease.
2) In lease L can prohibit T from assigning or subletting without L’s express consent.
Assignment of lease
1) T transfers entire interest in orig lease
2) L & T2 are in privity of estate
(a) Both are liable to the other for covenants that run with the land.
1. run with land if of and pertaining to the premises
3) L & T2 are not in privity of K unless T2 expressly assumed all promises in original lease.
4) L & T1 are no longer in privity of estate
(a) They remain in privity of K. thus L & T1 are secondarily liable to each other. Indemnity.
1) L & subleessee are in neither privity of estate nor privity of K. T1 & T2 are liable to each other.
L’s Tort liability for defects on the premises
1) Tort baseline is caveat lessee. In tort, L has no duty to make safe. Exceptions to harsh common law rule: CLAPS
(a) C Common areas. L must maintain common areas hallways stairwells
(b) L Latent defects. L duty to warn T of latent hidden defects where L has knowledge or reason to know. Duty to warn not duty to repair. But..
(c) A Assumption of repairs. L who voluntary makes repairs must complete them w reasonable care. L will be liable for negligence in voluntarily assumed repairs.
(d) P Public use rule. Landlord who leases public space i.e. convention hall or museum and who should know because of nature of the defect and the length of the lease that T will not repair, will be liable for any defects on the premises.
(e) S Short term lease of furnished dwelling. L is responsible for any defect that harms T.
Easement defined
1) Grant of non-possessory property interest that entitles holder to the use or enjoyment of another’s land, called the servient land
2) Most easements are affirmative: the right to enter and do something on servient land. I.e. right of access across a tract of land
3) Negative easement is the right to prevent the servient landowner form doing something tat would otherwise be permissible. Must be expressly not impliedly created. 4 types LASS
(a) L Light
(b) A Air
(c) S support
(d) S stream water from artificial flow
(e) S Minority for scenic view.
Easement appurtenant
1) Easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. Requires 2 separate parcels.
(a) Dominant tenement derives benefit of easement
(b) Subservient bearing the burden of the easement.
2) Say: B has an easement appurtenant to B’s dominant tenement.
Easement in Gross
1) Easement is in gross if it confers on the holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. The servient land is burdened but there’s no benefited or dominant tenement. I.e. right to place a billboard on another’s lot. That’s gross! The right to fish or swim in another’s pond. PG&E right to lay power lines on another’s land. None tied to a dominant tenement. Held by the individual.
Transferability of easement
1) Easement appurtenant passes automatically w dominant tenement regardless of whether mentioned in the conveyance. Burden of the easement appurtenant also passes automatically with the servient estate unless new owner is a bona fide purchaser without notice of the easement.
2) Easement in gross not transferable. Unless it is commercial in nature.
HT create an affirmative easement
1) Creation of an affirmative easement requires PING
(a) P Prescription
(b) I Implication
(c) N Necessity
(d) G Grant
2) Grant: for easement to endure for 1+yr must be in writing in form of a deed of easement. SOF
3) Implication: easement implied from existing use. Where 2 lots are divided and sold /out mention of existing easement
4) Necessity. Where grantor has conveyed a portion of his property w no way out except over some part of remaining land. I.e. sell an island of land within property.
5) Prescription. An easement may be acquired by satisfying the elements of adverse possession: COLA
(a) C Continuous for the statutory period usually 20 years.
(b) O Open and notorious
(c) A actual use
(d) H hostile—without owners consent
Scope of easement
1) Scope of easement determined by terms or grant or conditions that created it.
(a) Unilateral expansion is not allowed.
Termination of an easement
1) Termination of an easement END CRAMP
(a) E Estoppel. Servient owner materially changes his position in reasonable reliance on easement holder’s assurances that the easement won’t be enforced.
(b) N Necessity. Easements created by necessity expire as soon as the necessity ends. However if the easement attributable to necessity was created by express grant it does not end automatically once the necessity ends.
(c) D Destruction. Destruction of the servient land other than by willful conduct of servient owner will destroy the easement
(d) C Condemnation bt eminent domain will end the easement.
(e) R Release. Written release by easement holder to subservient owner
(f) A Abandonment. Easement holder shows by physical conduct the intent never to use the easement again. I.e. dominant tenant puts up a fence. Mere words insufficient.
(g) M Merger or unity of ownership where title to easement and title to servient land are vested in same owner. Later separation of the joined land does not automatically revive the easement
(h) P Prescription servient owner may extinguish the easement by interfering by adverse possession COAH
License defined
1) Mere privilege to enter another’s land for some delineated purpose
2) No writing required. Licenses are not subject to statute of frauds.
3) But licenses are freely revocable at the will of licensor less estoppel applies to bar revocation.
(a) I.e., tickets or neighbors talking across the fence. An invalid oral easement fails and creates a freely revocable license. SOF
4) Estoppel will bar revocation when licensee has invested substantial resources in reliance on the license’s continuation
The profit defined
1) The profit entitles its holder to enter the servient land and take from it resources.
2) The profit shares all the rules of easements
The covenant defined 2 types
1) Covenant is a promise to do or not do something related to land. NOTE not a grant of property interest
2) Covenant is a contractual limitation concerning the land.
3) Restrictive covenant is promise to refrain to do something relating to land. I.e. promise not to build for commercial purposes.
(a) Historically “negative easements” limited to LASS. Contract filled the void w restrictive covenants
4) Affirmative covenant is promise to do something related to land.
(a) Distinguish affirmative covenant from equitable servitude. Affirmative covenant is enforced at law. thus if P seeks $$D, it’s a covenant.
requirements for covenant to run w the land to bind successors

First ask whether the burden of A’s promise to B runs from A to A1.
1) Ask whether the burden of A’s promise to B runs from A to A1. Harder for burden than the benefit to run
2) Requires WITH N
(a) W Writing Original promise from A to B must be in writing
(b) I Intent. Original parties intended that the covenant would run. Courts generously find intent
(c) T Touch and concern the land. The promise must affect the parties as land owners not as members of the community at large. Covenants to pay money i.e. homeowners assoc or covenant not to compete do not touch & concern
(d) H Horizontal & vertical privity. Horizontal privity refers to the nexus between original parties. Must be in succession of estate as grantor, grantee, or landlord tenant or mortgagor mortgagee. Horizontal privity is hard to establish.
1. vertical privity refers to the nexus between A and A1. easy to establish. Just some non-hostile nexus. K, devise, descent.
(e) N Notice. A1 must have notice of the covenant.
Covenant runs w the land to bind successors

whether the benefit of A’s promise to B runs from B to B1.
1) Does B1 have standing to demand benefit of the covenant? WITV
(a) W Writing. Original promise in writing
(b) I Intent. Original parties intended that the benefit would run.
(c) T Touch and concern. Promise affects the parties as landowners
(d) V Vertical privity. Non-hostile nexus between B & B1.
2) Horizontal benefit is not required for the benefit to run. Thus B1 will receive a benefit as to original A.
Equitable servitude defined
1) Promise that equity enforces against successors. Creation requires WITNES
(a) Writing. Generally the original promise in writing
(b) I Intent. Parties intended that the promise would bind successors
(c) T Touch & concern. Promise affects the parties as land owners.
(d) N Notice. Successors of the burdened land had notice of the promise
(e) ES Equitable servitude. Privity is not required! That’s why its equitable!
2) Implied equitable servitude is the common scheme doctrine. I.e. subdivision common scheme and P seeks to enjoin D from certain use.
3) Court will imply a reciprocal negative servitude. Under common scheme doctrine if
(a) When sale began subdividor had a general scheme of residential development that included D’s lot.
(b) And D had notice of the promise contained in the prior deeds. Notice AIR
1. A actual notice. D had literal knowledge of promises in prior deeds.
2. I inquiry notice. constructive notice. lay of the land. Where neighborhood conforms to the common restriction. D is on inquiry notice.
3. R record notice. constructive notice. Notice imputed to buyer on the basis of publicly recorded docs. Courts split whether subsequent buyer is on record notice of contents of prior deeds transferred to others by a common grantor.
Defenses to enforcement of an equitable servitude
1) Where changed conditions alleged by party seeking release from the terms of an equitable servitude are so pervasive that the entire area has changed, the servitude will be released.
2) Mere pockets of limited change insufficient. Must be pervasive.
Adverse possession requires
1) C Continuous
2) O Open & notorious: kind of possession owner would make
3) Actual Must be actual entry and possession. Not symbolic, not a letter
4) H Hostile. Possessor does not have the true owners consent to be there.
NOTE Possessor’s state of mind is irrelevant.
Adverse possession Tacking
One adverse possessor may tack on to his time that of his predecessor so long as there is privity. Privity is satisfied by any non-hostile nexus. Blood, K, deed, will.
Taking is NOT allowed when there has been an ouster by the rightful owner.
Adverse possession disabilities
Statute of limitation will not run against a true owner who is afflicted by a disability at the inception of the adverse possession. Disability includes insanity infancy imprisonment.
2 implied promises in every land K
2 implied promises in every land K
1) Seller promises to provide marketable title at the closing! Title free from reasonable doubt and the threat of litigation.
(a) Free from adverse possession. If even a part in adverse possession the title in infirm, unmarketable.
(b) Free from encumbrances. Servitudes and mortgages render title unmarketable less buyer has waived them. But seller has right to discharge outstanding mortgage at closing.
(c) Zoning violations. Title is unmarketable if prop violates zoning regulation.
2) Seller promises not to make any false statements of material fact
a) Seller liable for failure to disclose latent material defects. Liability for material lies and omissions.
(a) General disclaimers of liability “as is” will not excuse seller from liability for fraud or failure to disclose
Land Conveyancing 2 step process

Frist step is
2) Land contract, endures till step II
(a) Requires writing. Signed nay party to be bound.
(b) K must describe the land and state some consideration.
(c) If amnt of land recited in Land K is more than actual size of parcel, specific performance w pro rata reduction in price. K is valid.
(d) Exception to SOF. Doctrine of Pt Performance. Equity will intervene if
1. B takes possession of the land.
2. B remits all or part of the purchase price. And/or
3. B makes substantial improvements.
(e) Equitable conversion
1. equity regards as done that which ought to be done.
2. in equity, once K is signed, B is owner of the land. Subject to paying purchase price at closing.
3. in case of destruction after K, before closing, B bears the risk of loss unless K provides otherwise.
Land Conveyancing 2 step process

2d step is
1) closing. Controlling doc is the deed
2) deed must be lawfully executed
(a) in writing signed by grantor
(b) need not recite consideration nor must consideration pass to make a deed valid. Its not a K
(c) Unambiguous description of land and a good lead. Description of land need not be perfect. Good lead i.e. “all of O’s land in Essex County.” not “some of my land.”
3) And delivered
(a) May be satisfied when grantor physically or manually transfers the deed to grantee. Ok to mail or via agent/messenger.
(b) Standard is a legal standard. Delivery does not necessarily require actual physical transfer of the instrument. Test of present intent. Did grantor have the present to be immediately bound.
(c) Delivery by escrow is permissible. Allows automatic transfer of title once established conditions are met
Oral conditions upon delivery of deed?
If deed absolute on its face, is transferred to grantee with an oral condition, it drops out as void.
Covenants for title and 3 types of deeds
1) Quitclaim
(a) Contains no covenants. Worst deed. Grantor isn’t even promising that he has title to convey. Grantor does implicitly promise in the land K to provide marketable title at the closing. Grantor who delivered a quitclaim is off the hook for post closing title problems.
2) General Warranty Deed. Best deed.
3) Statutory special warranty deed
General Warranty Deed. 6 covenants
Warrants against all defects in title. Including these of grantor’s predecessors.
1) First 3 are present covenants Present covenant is breached at the time of delivery. SOL runs from time of delivery.
(a) Covenant of seisin. Grantor promises that he owns the estate that he now claims to convey.
(b) Covenant of right to convey. Promises he has the power to convey, free from temporary restraints on the power to convey.
(c) Covenant against encumbrances. Promises no servitudes or liens on land.
2) Future Covenants. Not breached if ever until grantee is disturbed in possession.
(a) Covenant for quiet enjoyment. Promises grantee won’t be disturbed in possession by 3d party’s lawful claim of title.
(b) Covenant of warranty. Promises to defend grantee in case of 3d party’s lawful claim of title.
(c) Covenant for further assurances. Promises to do whatever future acts reasonably necessary to perfect the title should it be imperfect.
Statutory special warranty deed
Provided by statute
1) 2 promises grantor makes only on behalf of himself. Grantor makes no representations on behalf of his predecessors in interest
(a) Promises he has not conveyed the estate to anyone other than grantee.
(b) Promises the estate is free from encumbrances made by grantor. No reps as to predecessors.
Recording system Double dealing
EXAM double dealer. Conveys to two buyers A &B then skips town. Recording system answers which buyer qualifies as bona fide purchases.
1) In Notice jxn. Later bona fide purchaser wins regardless of who records first. Bona fide purchaser is one who:
(a) Purchases prop for value—substantial pecuniary consideration.
1. but case of doomed donee. Recording statutes do not protect donees, heirs, or devisees, unless shelter rules applies. In recording statute question, they lose!
(b) w/out notice that someone else got there first. Notice AIR
1. Actual notice. prior to closing B has actual notice of A
2. Inquiry notice. Duty to inspect premises.
3. Record.
(c) Inquiry and record are constructive notice imputed to buyer. B on inquiry notice of anything an examination of the land would reveal. I.e., another in possession. If recorded instrument makes reference to a prior unrecorded transaction, grantee is n inquiry notice of whatever a reasonable follow up would show. B on record notice is at the time of transfer, A’s deed was properly recorded within the chain of title. Whether or not B reviews the title.
2) If bona fide purchaser for value and no notice, later purchases has superior title in notice jxn. In race notice jxn B must be bona fide purchases and first to record.
3) A’s proper recordation places later buyers on record notice, thereby defeating their status as BFPs.
Notice Statute terms
Conveyance of interest in land (O to A) shall not be valid against any subsequent purchaser for value, (O to B) without notice thereof (to B), unless the conveyance is recorded (By A).
This is notice statute. No matter who records first. But still, B better record incase of latter C
Race-Notice Statute Terms
Any conveyance of an interest in land (O to A) shall not be valid against any subsequent purchaser for value (O to B), without notice thereof (to B), whose conveyance is first recorded (By B).
B must be BFP (w/out notice) and first to record!
Proper record w/in the chain of title requires
1) Chain of title refers to that sequence of recorded docs capable of giving record notice to later purchases.
2) In ,most states the chain of title is established through a title search of the grantor grantee index.
Shelter rule
1) One who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against. Transferee “takes shelter: in the status of her transferor.
2) I.e. O to A then O to B. B gifts to C who has actual notice of O to A transfer. Despite actual notice, C prevails against A against shelter rule
3) Why? To protect B, the BFP. Allows B to successfully transfer, since his title is superior to A’s. Recording system protects bona fide purchasers.
Problem of the wild Deed
1) O to A who does not record. Then A sells to B and B records A to B deed.
(a) A to B, though recorded, is not connected to the chain of title because its missing a earlier grantee.
2) A to B is a wild deed. If deed on the record has a grantor unconnected to the chain of title (O to A), the deed is a wild deed. It is incapable of giving record notice of its existence.
3) If O later transfers again to C who has no notice of O to A or A to B, and C records, C has superior title in notice or race-notice jxn. Even if B records before C, the recording was a wild deed and thus nullity. So C wins the race to record.
(a) B failed to make proper record in the chain of title instead lodged a wild deed.
Wild deed, I think I loath you. But I gotta know for sure!
Estoppel by deed
1) Double dealer w/out title, who later acquires actual title, is estopped from asserting any claim to the property.
Mortgages definition/requirements
1) Mortgage is conveyance of a security interest in land, intended by the parties to be collateral for the repayment of debt.
2) Mortgage requires
(a) A debt
(b) A voluntary transfer of a lien in debtor’s land to secure the debt.
1. debtor=mortgagor, creditor is the mortgagee
3) Mortgage must be in writing SOF. This is legal mortgage. Often called mortgage deed, note, security interest in land, deed of trust, or sale lease back.
Equitable mortgage
1) C lends O money knowing land is the collateral. O hands creditor the deed to the land, absolute on its face. This is equitable mortgage.
2) Parole evidence allowed to show parties actual intent. Transfer outright or just collateral?
3) What if creditor wrongly transfers to X, bona fide purchaser? X owns. O must proceed against creditor for fraud and to recover the proceeds of sale.
Parties’ rights under mortgage
1) Unless & until foreclosure, debtor has title & right to possession
2) Creditor has only a lien. Right to look to land in case of default.
3) The mortgage automatically follows a properly transferred note. Parties may transfer their interest.
(a) Creditor transfers by
1. endorsing the note
2. or executing separate doc of assignment.
(b) If the note is transferred and delivered, transferee is a holder in due course and takes free of any personal defenses that might have been made against original transferor. I.e. lack of consideration, fraud in the inducement, unconscionability, waiver & estoppel. Holder may foreclose despite any such personal defense.
(c) Holder in due course still subject to “real” defenses.
“real” defenses available against foreclosure by holder in due course
1) MA Material alteration
2) D duress
3) FI Fraud in the factum. I.e. a lie about the instrument. Told signing a credit app not an instrument
4) 4 Is. Incapacity illegality infancy insolvency.
To be a holder in due course requires
1) To be a holder in due course requires
2) Note must be negotiable made payable y the named mortgagee
3) The original note must be endorsed signed by the named mortgagee
4) The original note must be delivered to the transferee. No copies
Recording statutes also protect mortgagees.
1) Recording statutes protect BFPs and mortgagees.
2) If O mortgagor sells prop, the lien remains on the land so long as the mortgage was properly recorded.
3) A subsequent buyer takes subject to a properly recorded lien. No matter what recording statute. Buyer is on record notice of any mortgage lien and mortgagor was 1st to record.
Who’s liable for mortgage when prop transfers?
1) If B has assumed the mortgage
(a) Both O & B are personally liable. B is primarily liable, O secondarily liable.
2) If B takes “subject to the mortgage”
(a) B assumes no personally liable. Only O s personally liable.
(b) But if recorded the land is subject to lien and may be foreclosed if O defaults.
Foreclosure if proceeds insufficient or in surplus
1) If insufficient, creditor brings an action against debtor for deficiency judgment.
2) If surplus, junior liens paid off in order of priority.
(a) Attorney fees & expenses of foreclosure right off the top! Then accrued interest on note.
Effect of foreclosure on various interests (junior & senior)
1) Foreclosure terminates only junior not senior interests.
(a) Junior lien holder may pursue deficiency judgment. But after foreclosure jr. lien holders may not look to the prop for satisfaction.
(b) Jr. lien holder are necessary parties to the foreclosure
(c) Debtor is necessary party and must be joined. Especially if creditor wants to seek deficiency claim. If necessary party is not joined, his mortgage remains w the land.
(d) Foreclosure does not effect senior interest and buyer at the sale takes subject to that interest. Sooner or later though, senior creditor will foreclose. Foreclosure buyer is not personally liable but if senior debt is not satisfied, foreclosure. Foreclosure buyer thus has strong incentive to pay off lien.
Priority of liens
1) Creditor must properly record to get any priority
2) Once recorded, 1st in time, 1st in right.
3) Except, purchase money mortgage. Mortgage given to secure loan that enables debtor to acquire the encumbered land initially. Purchase money mortgage has 1st priority as to prop financed. Super-priority.
Subordination agrmnts (mortgages)
1) Subordination agrmnts are permissible
2) Senior creditor may agree to subordinate its claim to that of a junior creditor.
Redemption in equity
1) Equitable redemption is universally recognized up to the date of sale
2) At any time prior to the foreclosure sale, debtor has right to redeem the land and free it of the mortgage.
3) But once valid foreclosure has taken place the right to equitable redemption is gone.
4) Equitable redemption satisfied by paying off missed payment & interest & costs.
5) Acceleration clause makes full balance due in event of default. Plus interest accrued, plus costs.
6) Right to redeem is unwaivable
7) Statutory redemption allows debtor to redeem for a period (1 yr) after foreclosure occurs! Usually foreclosure sale price not amnt of originally debt. Under statute, mortgagor has right to possession during statutory period.
Lateral Support. Excavation liability.
1) If land is improved by buildings and neighbors excavation causes land to cave in, excavator liable only for negligence. not strict liability!
2) For strict liability Plaintiff must show excavation would have caused cave in of land in its natural state.
Water rights (2 systems)
Allocation of water from streams rivers lakes
1) Riparian doctrine. Water belongs to those bordering the water course. They’re riparians—the owners are. All riparians share right of reasonable use of the water. One riparian liable for use that unreasonably interferes w others use
2) Prior appropriation doctrine. Water initially belongs to state but right to divert and use can be acquired by individual, whether or not he’s riparian.
(a) Rights determined by priority of beneficial use. Priority determined by 1st in time 1st in right.
Rts in Ground water, percolating water.
Surface owner entitled to make reasonable use of ground water. Ground water=Underground water.
Surface water from precipitation before reaching natural watercourse
1) Common enemy rule. Surface water is a common enemy! Landowner may make any changes to combat the flow of surface water.
2) Courts have modified to prohibit unnecessary harm to other’s land.
Possessor’s rights
1) Possessor has right to be free from trespass and nuisance
(a) Trespass is the invasion of land by tangible physical object. To remove a trespasser, bring an action for ejectment.
2) Private Nuisance
(a) Substantial & unreasonable w another’s use and enjoyment of land. Does not require invasion by physical object.
(b) Hypersensitive plaintiff loses. Only reasonable use & enjoyment protected
Eminent domain (defined)
1) Government’s 5th amendment power to take private prop for public use in exchange for just compensation
Zoning. Non-conforming use
1) Once lawful existing use now deemed nonconforming by new zoning. Cannot be eliminated all at once without just compensation. Otherwise unconstitutional taking.
Regulatory taking
1) Government regulation not intended to be a taking, has the effect of depriving all rsbl use & profit.
2) Remedy? Government must provide just compensation. Or. Terminate the regulation and pay for damages suffered.
Four leasehold (nonfreehold estates)
1) Tenancy for yrs. Estate for years or term of years
2) Periodic Tenancy
3) Tenancy at will: tenancy for no fixed duration. I.e. “To T as long as T or L desires.”
4) Tenancy in sufferance. Where T has wrongfully held over past expiration.
Zoning power defined
1) Pursuant to police power government may enact statute to reasonably control land use.
2) The variance allows flexibility in zoning. Requires showing
(a) Undue hardship and
(b) Variance won’t work detriment to surrounding prop values.
(c) Variance granted or denied by admin action. Typically zoning board.
Unconstitutional exaction
1) Those amenities that government seeks in exchange for grant permission to build. I.e. permit contingent on providing new streetlights, park, and wider roads. Exactions must be reasonably related in nature & scope to the impact of the proposed development. Otherwise unconstitutional.
Periodic Tenancy
(Four leasehold, nonfreehold, estates)
2) Periodic Tenancy
(a) Lease continues for successive intervals until L or T give proper notice of termination
(b) May be created expressed. “to T from month to month.”
(c) Or by implication 3 ways: payment at set intervals; oral term or yrs in violation of Statute of Frauds creates an implied periodic tenancy; or by holdover doctrine where residential T has stayed past original lease & L consents to holdover.
(d) Terminate periodic tenancy requires notice usually in writing, at common law, at least equal to the length of the period, less otherwise agreed. Exception for year to year lease, only 6 mos notice required. Periodic tenancy must end at the conclusion of a natural lease period. I.e. T gives notice on 5/15, leasehold ends on 6/30!
Tenancy for Years
(Four leasehold, nonfreehold, estates)
1) Tenancy for yrs. Estate for years or term of years
(a) Lease for a period of time. hwvr short or long. When tenant knows the termination at the inception—that’s a tenancy for yrs.
(b) No notice required for termination of estate for yrs.
(c) SOF requires a writing for a term of yrs longer than 1 yr.
Tenancy at Will
(Four leasehold, nonfreehold, estates)
3) Tenancy at will: tenancy for no fixed duration. I.e. “To T as long as T or L desires.”
(a) Payment of regular rent viewed by court as creating implied periodic tenancy.
(b) Tenancy at will terminated by either party at any time, hwvr reasonable demand to quit premises and vacate is typically required.
Tenancy in sufferance
(Four leasehold, nonfreehold, estates)
4) Tenancy in sufferance. Where T has wrongfully held over past expiration.
(a) We give this wrongdoer a leasehold estate to permit L to collect rennet. Lasts only till L evicts or agrees to elects to hold T to new tenancy.