Mbe Property 2

Front 1

Easement appurtenant

Back 1

Directly benefits the use and enjoyment of a specific parcel of land

Front 2

Easement in gross

Back 2

No dominant estate b/c there is only one parcel of land and it is the property burdened by the easement

Front 3

methods to create an easement

Back 3

PING

Prescription
Implication
Necessity
Grant (must satisfy S/F)

Front 4

Easement by implication arises in two situations

Back 4

1. Previous use by a common owner
2. Necessity

Front 5

Requirements to obtain an implied easement through previous use by a common owner

Back 5

1. land split in two parcels
2. Apparent (open & obvious)
3. continued use was anticipated by the parties because of reasonable necessity

Front 6

Under the absolute right of access rule, an implied easement is located

Back 6

the owner of the servient estate can control the location of the easement so long as it's reasonable

Front 7

Four requirements to establish a Prescriptive Easement

Back 7

1.. Continuous and uninterrupted (use appropriate for that land i.e. seasonal use can suffice)
2. Open and notorious
3. Actual possession of the land
4. Hostile

Front 8

Transferring the benefit on an easement appurtenant

Back 8

It transfers automatically with the dominant estate (whether mentioned in the deed or not!)

Front 9

Transfer of easement in gross

Back 9

commercial (can be transferred)
personal (cannot be transferred)

Front 10

EXCEPTION to satisfying statute of frauds for land contracts (Part Performance)

Back 10

The "Doctrine of Part Performance," requiring TWO of the THREE of the following:
-B takes possession
-B remits all or part of purchase price
-B makes substantial improvements

Front 11

Transferring the burden of an easement on a servient estate

Back 11

Easements are always binding on subsequent holders of servient estates as long as there was notice

Front 12

Three ways that a successor-in-interest to the servient estate may be put on notice of the easement

Back 12

1. Actual notice
2. Constructive notice (duly recorded in buyer's direct chain of title)
3. Inquiry notice (inspection)

Front 13

An easement is presumed to

Back 13

- Last forever
- The use is that of a reasonable development of the dominant estate

Front 14

The reasonable development of a dominant estate for purposes of the use of an easement is

Back 14

That use which would likely have been contemplated by the parties at the time the easement was granted

Front 15

Remedy for excessive use on an easement

Back 15

Enjoin the excess use, but do not terminate the easement

Front 16

Which party is responsible for making necessary repairs to an easement

Back 16

The holder of the benefit (i.e. the dominant estate) - includes authority to go on the servient land to make such repairs

Front 17

Two requirements for termination of easement by estoppel

Back 17

- A representation of relinquishment by the dominant estate
AND
- Holder of the servient estate changes his position in reliance of that representation

Front 18

Define License

Back 18

A limited privilege to USE land in the possession of the licensor; it is a (K) right

Front 19

Revocability of licenses

Back 19

License can always be revoked, except under principles of estoppel

Front 20

Result where an easement is attemtped but fails due to statute of frauds

Back 20

License is created

Front 21

Define a Restrictive Covenant

Back 21

Gives the holder the right to restrict some third party in the USE of his land

Front 22

Two categories of restrictive covenants; difference

Back 22

1. Covenants (promises) running with the land ($ damages)
2. Equitable servitudes (injunction)

The only difference is the theory used to enforce the terms of the restriction

Front 23

requirements to enforce a restrictive covenant

Back 23

1. Intent
2. Notice
3. Touch and Concern (includes covenants not to compete)
4. Privity- horizontal and vertical

Front 24

For purposes of privity relating to restrictive covenants look at who is the successor-in-interest

Back 24

- Plaintiff: vertical (person is trying to establish that the benefit of the covenant runs to the plaintiff)
- Defendant: vertical & horizontal (plaintiff is trying to establish that the burden of the covenant runs to and binds the defendant)

Front 25

Vertical privity refers to

Back 25

Those who subsequently obtain the property subject to the covenant.

Only thing that DOESN'T count is adverse possession

Front 26

Horizontal privity refers to

Back 26

The original parties to the promise; they must share some interest in the land; needs to be a conveyance of the property between the original parties

Front 27

Four requirements to enforce the burden of a covenant at law: successor-in-interest is Defendant

Back 27

1. Intent
2. Notice
3. Touch and Concern
4. Privity

Front 28

Requirements to enforce the benefit of a restrictive covenant

Back 28

1. Writing
2. Intent
3. Touch and Concern
4. Vertical Privity

Front 29

Requirements to enforce the burden of an equitable servitude

Back 29

1. Writing
2. intent
3. touch and concern
4. notice

Front 30

Only Two requirements to enforce the benefit of a covenant as an equitable servitude

Back 30

1. Intent
2. Touch and Concern

Front 31

Subdivision restrictions - Mutual Rights of Enforcement -requirements

Back 31

1. An intent to impose a servitude on all land in the subdivision
2. Notice

Front 32

Defenses to enforcement of covenant as an equitable servitude (5)

Back 32

- Unclean hands
- Acquiescence
- Laches
- Estoppel
- Changed Conditions

Front 33

Termination of covenants/servitudes

Back 33

1. Deed of release
2. Merger
3. Condemnation of the servient estate
4. Changed conditions

Front 34

Requirements to take by Adverse Possession

Back 34

1. Continuous and uninterrupted (use appropriate for that land i.e. seasonal use can suffice)
2. Open and notorious
3. Actual possession of the land
4. Hostile

Front 35

Constructive Adverse Possession (exception to the requirement of actual possession)

Back 35

Expands land actually adversely possessed to the full property if the possessor is under color of title

Front 36

What is enough to "purchase for value" for a BFP

Back 36

Can be anything more than nominal consideration -- a great deal (1/2 off) doesn't matter

Front 37

limitations to Constructive Adverse Possession

Back 37

1. Land possessed must bear a rational relationship to the whole
AND
2. Property must be unitary

Front 38

Leased land - an exception to the requirement of actual possession

Back 38

Leasing land to a third party constitutes possession for purposes of adverse possession

Front 39

General rule regarding adverse possession against concurrent owners

Back 39

No adverse possession against co-tenant UNLESS the co-tenant in possession actively excludes the other co-tenant for the statutory period

Front 40

Generally, when does the adverse possession clock start to run against the holder of a future interest

Back 40

When that interest becomes possessory

Front 41

In the case of a FSD-PR, when does the clock start to run for purposes of adverse possession

Back 41

When the condition occurs- title automatically went back to grantor

Front 42

In the case of a FSCS-RR, when does the clock start to run for purposes of adverse possession

Back 42

When the Grantor exercises his right of re-entry

Front 43

If a true owner is an infant, incarcerated, or insane at the time an adverse possessor enters the land, when does the clock start

Back 43

The clock will not start until the true owner is no longer in that condition- no tacking of disabilities

Front 44

Intervening disabilities on adverse possession

Back 44

Do NOT STOP the adverse possession clock. If the disability was not in existence on the day the adverse possession begins, it will not keep the clock from running (i.e. no tacking of disabilities)

Front 45

to make adverse possession a marketable title

Back 45

must quiet title

Front 46

Risk of loss between signing of the contract and closing

Back 46

The buyer bears the risk once the contract is signed - as long as seller is not at fault

Front 47

Death of a party before close of escrow

Back 47

Doctrine of Equitable Conversion will order specific performance

Front 48

Define Marketable Title

Back 48

Title that a reasonably prudent person would accept (i.e. minor defects do not matter)

Front 49

Seller implies marketable title in every land sale and must satisfy three requirements to do so

Back 49

1. Proof of title (physical doc.)
2. Title free of encumbrances (easements, covenants, etc must be disclosed)
3. Valid legal title as of Date of Closing

Front 50

Buyer's remedies for seller's failure to deliver marketable title

Back 50

1. Rescission
2. Damages
3. Specific performance with reduction in purchase price to reflect the defects in the title

Front 51

Time of performance for closing

Back 51

Must be reasonable (usually 2 months)

Front 52

Default rule regarding time in land sale contracts

Back 52

Time is NOT of the essence UOA or facts make it clear

Front 53

Violation of a Time is of the Essence clause results in

Back 53

Total Breach; breaching party cannot enforce the (K)

Front 54

Seller's duty to disclose defects on the property

Back 54

Trend is to impose a duty to disclose serious defects that the seller knows of and are not obvious to the buyer

Front 55

If purchasing residential property directly from a developer, builder, or professional seller there is

Back 55

A narrow, implied warranty of fitness

Front 56

Effect of acceptance of deed at closing

Back 56

(K) is extinguished; it merges into the deed

Front 57

Two requirements must be satisfied for a deed to pass title

Back 57

1. Execution
2. Delivery

Front 58

Execution of the deed requires

Back 58

- Satisfies the SOF
AND
- Sufficiently describes the land (able to id the property - minor discrepancy does not matter)

Front 59

Use of parol evidence to clarify a deed description

Back 59

Allowed- court will modify

Front 60

Which prevails - description by metes and bounds or by acreage

Back 60

Metes and Bounds controls

Front 61

What is the sole test for Delivery of the deed

Back 61

Intent of the grantor; No physical transfer necessary

Front 62

raises of presumption of delivery of a deed

Back 62

Recording it

Front 63

Delivery of a deed is valid only if

Back 63

The deed is accepted - acceptance will be implied (no consideration necessary)

Front 64

Define Quitclaim deed

Back 64

Grantor makes no promises regarding title

Front 65

Any promises regarding title are called

Back 65

Covenants of Title

Front 66

present covenants of title

Back 66

Do not run with the land

- Seisin/Right to Convey- seller has title and possession and can convey both

- Against Encumbrances- seller promises there are no encumbrances other than those that have been disclosed

Front 67

future covenants of title

Back 67

Do run with the land

- Quiet Enjoyment/Warranty- seller's promise to protect the buyer against anyone who come later and claims superior title

- Further Assurances- if seller omitted anything to pass valid title, seller promises to do whatever is necessary to pass title

Front 68

If a will purports to devise a specific parcel of land, but the testator does not own the land at the time of death the gift is

Back 68

Adeemed; the gift fails and will not be replaced by any other property

Front 69

Validity of an unrecorded deed as between the original parties

Back 69

Valid; recording is for purposes of notice

Front 70

The words "recorded first" OR "first recorded" indicate

Back 70

Race-Notice statute

Front 71

The words "without notice" or "in good faith" indicate

Back 71

Either a Notice or Race-Notice statute

Front 72

Bona fide purchaser

Back 72

A purchaser for value (even way below FMV) who takes without notice

Front 73

Shelter Rule

Back 73

Anyone, (even heirs, donees, or devisees) can shelter under the rights of a BFP

Front 74

Types of notice

Back 74

1. actual notice
2. constructive notice- notice of info in the buyer's direct chain of title
3. inquiry notice- must examine the land and make inquiries into any unexplained uses or possession

Front 75

Three types of security interests (ways to purchase land)

Back 75

1. Mortgage
2. Deed of Trust
3. Land Sale (K) (seller is financing)

Front 76

Debtor's right of Redemption (either through equity or by statute)

Back 76

equity right- debtor can redeem the property until the foreclosure sale by paying arrears (plus interest) UNLESS there's an acceleration clause (then must pay all loan outstanding)

statutory right is for a period of time after the sale to redeem

Front 77

Acceleration clause

Back 77

Debtor must pay off the entire balance of the mortgage in order to redeem the property

Front 78

Priorities on payment of multiple mortgages

Back 78

First in time, First in Right (unless recording statute states otherwise)

Front 79

Purchase Money Mortgages (PMM) and priority

Back 79

A mortgage taken out to BUY the property - has priority over any other non-PMM mortgage, even if recorded earlier

Front 80

Effect of a change in a senior mortgage

Back 80

That mortgage will lose priority over junior mortgages, BUT only to the extent of the change

Front 81

Effect of foreclosure on Junior Interests (i.e. liens, easements, leases, etc)

Back 81

Foreclosure wipes out all junior interests, BUT does not wipe out senior interests (buyer takes the property subject to the senior interest)

Front 82

Protections to holders of junior interests

Back 82

Right to pay off any senior mortgages being foreclosed, thus they are a necessary party to any foreclosure proceeding; if not made a party their interests cannot be eliminated

Front 83

Payment of the proceeds from a foreclosure sale

Back 83

- Cost of the foreclosure
- The mortgage that was foreclosed
- Junior Interests in order of priority
- Any remaining balance to mortgagor

Front 84

land sale contract forfeiture clause

Back 84

if debtor misses a payment, seller can cancel the contract, keep all money paid, and retake the property- will be waived if the seller waits too long to act

Front 85

Whenever the Grantor transfers title to the property, the Grantee automatically takes the property subject to

Back 85

The mortgage

Front 86

What is a Grantee's personal liability on a mortgage

Back 86

Will not be liable UNLESS specifically assumed

Front 87

Effect of modification of the obligation on a mortgage between the mortgagee and the grantee

Back 87

Will release the original mortgagor of all liability

Front 88

Security interests in fixtures

Back 88

A seller of a fixture who provides a financing plan in the chattel must make a UCC Art. 9 fixture filing w/i 20 days after attachment to maintain right to remove, else seller's right will subordinate to the earlier mortgage on the property

Front 89

Lateral support

Back 89

Landowner has the right to have his land supported by adjoining landowners

a. If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if negligent.

b. Strict liability does NOT attach to the excavator’s actions unless plaintiff shows that the improvements on his land did NOT contribute to his land’s collapse. Or if P's land is in natural state--Strict liability

Front 90

Strict liability for lateral support covers

Back 90

Improvements - only if the land would have collapsed even without their weight

Front 91

Problems involving rights of Subjacent Support arise where

Back 91

Mineral rights have been legally severed from the surface rights;

Front 92

Scope of Right of Subjacent Support

Back 92

Right extends to the land and improvements that were existing at the time the mineral rights were severed

liable if negligent to structures later built

Front 93

Rule for underground water

Back 93

Landowner is entitled to reasonable use; must be on property (cannot transport)

Front 94

Riparian Rights allow for

Back 94

Riparian owner who borders on the water source can use all the water needed for domestic purposes, but limited to a reasonable use for non-domestic purposes

Front 95

common enemy approach to surface water

Back 95

landowner can do anything he wants with floodwater whether reasonable or not

Front 96

Natural Flow approach to surface water

Back 96

Has given way and courts will allow the landowner to take reasonable means to deal with surface waters

Front 97

Ameliorative waste

Back 97

life tenant alters the property that increases the value of the land

Front 98

fertile octogenarian

Back 98

the law presumes that a person might have another child despite age and medical condition

Front 99

Violation of RAP for one member in a class gift results in

Back 99

All members in the class lose

Front 100

liquidated damages clause validity

Back 100

valid as long as the amount is reasonable- usually 10% or less