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197 Cards in this Set

  • Front
  • Back
What is a fee simple absolute? What language creates a fee simple absolute? Is it devisible/descendible/alienable?
Absolute ownership of potentially infinite duration

It is freely devisable (can pass by will), descendible (will pass by statutes of intestacy), and alienable (transferable during the holder’s lifetime)

Language:
1. To A
2. To A and his heirs
What are the three kinds of defeasible fees?
1) Fee simple determinable
2) Fee simple subject to condition subsequent
3) Fee simple subject to executory limitation
What language creates a fee simple determinable?

What is the effect of a fee simple determinable?
Estate is always subject to the condition stated in the transfer. If the condition occurs, forfeiture is automatic.

Language:
1) “To A for so long as”
2) “To A during”
3) To A until”
What is a fee simple determinable called in NY?
Fee on limitation
What is the accompanying future interest in a fee simple determinable?
Possibility of reverter
What language creates a fee simple subject to condition subsequent? What is the effect of the occurrence of the condition?
Language"
“To A, but if X event occurs, grantor reserves the right to enter and retake”

Interest not automatically terminated upon condition. Can be cut short at the grantor’s option if the stated condition occurs
What is the accompanying future interest in a fee simple subject to condition subsequent?
Right of entry
What is a fee simple subject to condition subsequent called in NY?

What is the future interest associated w this interest called in NY?
Fee simple on condition

Future interest: Right of reacquisition
What language creates a fee simple subject to executory limitation?

What is the effect of a fee simple subject to executory limitation?
Language
“To A, but if X event occurs, then to B”

Estate is just like a fee simple determinable, only now, if the condition is broke, the estate is automatically forfeited in favor of someone other than the grantor
What is the future interest associated w a fee simple subject to executory limitation?
Shifting executory interest
What is the effect of words of hope/desire/intention in the creation of a defeasible fee?
Words of hope/desire/intention are insufficient to create a defeasible fee
What language creates a life estate?

What is the future interest in a life estate?
Language
"To A for life"

Future interest: reversion
What is a life estate pur autre vie? What language creates a life estate pur autre vie?
It is a life estate measured by the life of another.

Language
"To A for the life of B"
To what uses of the land/property is a life tenant entitled?
All ordinary uses and profit from the land
What are the three kinds of waste?
1) Voluntary
2) Permissive
3) Amerliorative
What is voluntary waste? What are the exceptions to this doctrine?
Life tenant must not consumer or exploit natural resources on the property unless:

1) Prior use
2) Reasonable repairs
3) Grant
4) Land is suitable only to exploit
What is permissive waste? What obligations are associated w the duty to avoid permissive waste?
Land is allowed to fall into disrepair

1) obligation to repair
2) obligation to pay ordinary taxes
What is ameliorative waste? (MBE)
Life tenant must not engage in acts that will enhance the property’s value unless: All future interest holders are known and consent
What is the NY rule re: ameliorative waste?
A life tenant may make reasonable improvements unless the remaindermen object
What three future interests are capable of creation in the grantor?
1) possibility of reverter
2) right of entry
3) reversion
What is a vested remainder?
A vested remainder is a remainder that is
1) created in an ascertained person, and
2) is not subject to any condition precedent
What is an indefeasibly vested remainder?
A vested remainder in which the holder is certain to acquire an estate in a future, with no conditions attached
What is a vested remainder subject to complete defeasance? What is this called in NY?
Remainderman’s right to possession could be cut short by a condition subsequent

In NY: remainder subject to complete defeasance
What is a vested remainder subject to open?
Remainder is vested in a group of takers, at least one of whom is qualified to take possession, BUT: Each class member’s share is subject to partial diminution because additional takers can still join in
What is the rule of convenience?
W/r/t vested remainders subject to open: A class closes whenever any member can demand possession
What is a contingent remainder?
A remainder is contingent if:
1) It is created in an unascertained person, OR
2) It is subject to a condition precedent
What is the rule of destructibility of contingent remainders? What is its current viability in the US and in NY?
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.

This rule has been abolished, including in NY
What is the rule in Shelley's case? What is its current viability in the US and in NY?
In the transfer: O conveys “to A for life, then, on A’s death, to A’s heirs.” A is alive

Historically: present and future interests would merge → A would have a fee simple absolute

It is virtually abolished today, including in NY
What is the doctrine of worthier title? What is its current viability in the US and in NY?
Applies when O, who is alive, tries to create a future interest in his heirs. Under the Doctrine of Worthier Title, contingent remainder in O’s heirs is void. But: if grantor clearly intents to create a contingent remainder in his heirs, then the intent controls.

Viable in most states, but abolished in NY
What is an executory interest?
1. An executory interest is a future interest created in a transferee (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)
What is a shifting executory interest?
A shifting executory interest is a future interest created in a transferee (third party), which is not a remainder and which takes effect by cutting short some interest in another person (not the grantor)
What is a springing executory interest?
A springing executory interest is a future interest created in a transferee (third party), which is not a remainder and which takes effect by cutting short some interest in the grantor
What is an executory interest called in NY?
NY has abolished the distinction between executory interests and contingent remainders. Contingent remainders and executory interests are both called remainders subject to a condition precedent
What is the rule against perpetuities? What is the 4-step procedure for determining if interests are valid under the rule?
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 death of a measuring life

1) determine what future interests have been created by the conveyance
2) identify the conditions precedent to the vesting of the suspect future interest
3) find a measuring life
4) ask: will we know w/ certainty w/in 21 yrs of the death of our measuring life if our future interest holders can or cannot take?
To what future interests does the rule against perpetuties apply? Not apply?
Applies to:
1) Contingent remainders
2) Executory interests
3) Certain vested remainders subject to open

Does not apply to
1) Any future interest in the grantor
2) Indefeasibly vested remainders
3) Vested remainders subject to complete defeasance
W/r/t to the rule against perpetuities, what is a measuring life?
A person alive at the date of conveyance to whom the conveyance is specific
What is the "wait and see" approach to the rule against perpetuities?
The validity of any suspect future interest is determined on the basis of the facts as they exist at the end of the measuring life
What is the difference between the Uniform Statutory Rule Against Perpetuties and the common law rule?
The USRAP provides for a 90-yr vesting period
What is the cy pres doctrine?
If a given disposition violates the RAP, a court may reform it in a way that most closely matches the grantors intent while still complying w the RAP
In addition to cy pres and the "wait and see" rule, what other common modification has been made to the rule against perpeturties?
Reduction of any offensive age contingency to 21 yrs
How is the rule against perpetuities applied in NY?
NY applies the common law RAP

It rejects wait-and-see and cy pres. however, it does reduce any offensive age contingency to 21 yrs
What is the NY modifiation to the fertile octagenarian problem?
NY presumes that woman over 55 cannot have a child
What is a joint tenancy? Is it alienable, devisable, or descendible?
1) two or more owners
2) right of survivorship

It is alienable but not devisible or descendible
How is a joint tenancy create?
Four unities: Joint tenants must make their interest:
1) At the same time
2) By the same title
3) W identical interests
4) The right to possess the whole

2) Grantor must clearly express the right of survivorship
What formality was typically required at common law to form a joint tenancy? How does this rule apply to NY?
Use of a straw to create a joint tenancy

NY has, by statute, dispensed w the need for a straw.
What is the effect when a joint tenant sells his interest in the joint tenancy?
One joint tenant’s sale severs the joint tenancy as to the seller’s interest. The buyer of the interest becomes a tenant in common.
To the extent that the joint tenancy began w more than two joint tenants → joint tenancy remains intact between the other, non-transferring joint tenants
When will a court order a partition in kind or a forced sale of a joint tenancy?
If it is in the best interests of all joint tenants
What is the effect of a joint tenant's mortgage of his share of the joint tenancy?
Minority (title theory) view: severs the joint tenancy

Majority (lien theory) view: does not sever the joint tenancy
What is a tenancy by the entirety?
1) Marital interest between married partners
2) Right of survivorship
How is a tenancy by the entirety created?
1. Can only be created between married partners who share the right of survivorship
2. Arises presumptively in any conveyance to married partners unless stated otherwise
What is the NY rule re: access to a tenancy in the entirety, by creditors of only one spouse?
1) One spouse may mortgage his interest and his creditors may enforce against that interest, but only as to the debtor spouse’s share
2) Non-debtor spouse’s rights, including the right of survivorship, must not be compromised
What is a tenancy in common? Are the rights, alienable, descendible, or devisible?
1) Two or more owners
2) No right of survivorship

Rights are alienable, descendible, and devisible
What are the rights of a co-tenant as to possession of the property?
Each co-tenant is entitled to possess the whole
What is the effect if one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part?
He has committed a wrongful ouster
Is a co-tenant generally liable to the others for rent? Rent from third parties?
No, absent wrongful ouster

But: A co-tenant who leases all or part of this premises to a third party must account to his co-tenant, providing them their fair share of the rental income
What is the applicability of adverse possession in a co-tenant relationship?
Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse period cannot acquire the title to the exclusion of the others
What is the right of co-tenants re: repairs?
Repairing co-tenant enjoys a right to contribution for necessary repairs, provided she has told the others of the need
What is the right of a co-tenant re: improvements?
No right to contribution for “improvements”

However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts

But: At partition, “improver” bears liability for any drop in value caused by her efforts
What are the four types of leasehold estates?
1) tenancy for years
2) periodic tenancy
3) tenancy at will
4) tenancy at sufferance
What is a tenancy for years? What notice is required to terminate?
Lease for a fixed period of time

No notice is required to terminate
What is a periodic tenancy?

In what three ways can it be implicitly create?
Lease which continues for successive intervals until L or T gives proper notice of termination

Can be created by:
1) Land is leased w no mention of duration, but provision is made for payment of rent at set intervals
2) An oral term of years in violation of the statute of frauds
3) Holdover
What notice is required for termination of a periodic tenancy? What is the exception to this rule?
Notice must be at least equal to the length of the period itself, unless otherwise agreed. Exception: tenancy is year-to-year or greater → 6mo notice required
What is a tenancy at will? What notice is generally required? What notice is required in NY?
Tenancy for no fixed period of duration

Notice generally required: reasonable demand to vacate

In NY: 30 days notice
What is a tenancy at sufferance? In what two situations is a tenancy at sufferance terminate?
Created when T has wrongfully held over past the expiration of the lease

Lasts only until L either:
1) Evicts T, or
2) Elects to hold T to a new tenancy
What is a tenant's liability to third parties?
T is liable for injuries sustained by 3rd parties T invited, even where L expressly promised to make all repairs
May a tenant seek indemnification from the landlord for injuries sustained by third parties on the property?
Yes
What is a tenant's duty to repair the premises where the lease is silent
T must maintain the premises and make repairs.
What is the law of fixtures?
When a tenant removes a fixture, he commits voluntary waste
What is a fixture?
A once removable chattel that, by virtue of annexation to realty, objectively shows the intent to permanently improve the realty
When does a tenant installation qualify as a fixture?
If the removal would not cause substantial harm to the premises
At common law, what was a tenant's duty to repair where the tenant has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
T liable for any loss to the property, including loss due to force of nature
Today, what is a tenant's duty to repair where the tenant has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease? What is the law in NY?
T may terminate lease if premises are destroyed w/o T’s fault. This is also the law in NY
What are a landlord's options if a tenant still in possession of the premises fails in his duty to pay rent?
1) evict through the courts
2) continue the relationship and sue for rent due
What is the effect of a landlord's self help? In NY?
Landlord self help is flatly outlawed and punishable civilly and criminally.

In NY, self help is likewise prohibited and entitles the tenant to treble damages
What are a landlord's options when the tenant refuses to pay rent and is no longer in possession of the premises?
1) surrender
2) hold tenant liable for full amount of unpaid rent (minority)
3) re-let the premises and hold wrongdoer tenant liable for any deficiency (majority: landlord must at least attempt to re-let)
Does NY require a landlord to mitigate damages when tenant abandons the premises?
No
What are the minority and majority rules re: a landlord's duty to deliver possession to the tenant?
Majority: L must put T in actual physical possession of the premises
2) Notice
3) Vacate

Minority: L does not have to provide physical possession. Need only provide T w/ legal possession
What two implied warranties does a landlord make to a tenant?
1) quiet enjoyment
2) habitability
What is the implied covenant of quiet enjoyment? To what kinds of leases does it apply? When is it breached by the landlord?
T has a right to quiet enjoyment of premises w/o interference from L. Applies to both residential and commercial leases

May be breached by:
1) actual wrongful eviction, or
2) constructive eviction
What is constructive eviction?
1) substantial interference due to landlord's actions or failure to act
2) Notice
3) Vacate
What is a landlord's liability under the implied covenant of quiet enjoyment w/r/t the acts of other tenants?
Generally, landlord not liable

Exceptions
1) L must not commit a nuisance onsite
2) L must control common areas
What is the implied warranty of habitability? From what two sources does this warranty get its substantive standards?
Premises must be fit for basic human habitation

Local housing code or case law
What are a tenant's remedies when the landlord breaches the implied warranty of habitability
1) move out and terminate lease
2) repair and reduct
3) remain in possession, pay rent, and seek money damages
In the absence of some prohibition in the lease, may T may freely transfer his or her interest in the whole (assignment) or in part (sublease)? (MBE)
Yes
May a lease prohibit T from assigning or subletting w/o L’s prior written approval? (MBE)
Yes
In NY, may a residential tenant assign a lease w/o the landlord's written consent?
No, unless the lease states otherwise
In NY, can a landlord unreasonably withhold consent to a tenant to assign the lease?
Yes
In NY, when does a residential tenant have the right to sublease, subject to the landlord's reasonable consent?
In a residential building having four or more units
In an assignment, is there privity of estate between L and T2? L and T1?
In an assignment, there is privity of estate between L and T2. There is no privity of estate between L and T1
In an assignment, is there privity of contract between L and T2? L and T1?
In an assignment, there is no privity of contract between L and T2. There IS privity of contract between L and T1
In a sublease, is there privity of contract between L and the sublessee? Privity of estate?
No
What is a landlord's general tort liability to the lessee? What are the exceptions to this rule?
General rule: caveat lessee: let the tenant beware. A landlord is under no duty in tort to make the premises safe

Exceptions
1) Common areas
2) Latent hidden defects L knows or should know about
3) Assumption of repairs
4) Public use
5) Short term lease of furnished dwelling
What is an easement?
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)
What are the four categories of negative easements?
1) light
2) air
3) support
4) stream water from an artificial flow
How is a negative easement created?
Expressly, in writing signed by the grantor
What is an appurtenant easement?
Benefits its holder in his physical use or enjoyment of his property
What is an easement in gross?
Confers upon its 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 is no benefited or dominant tenement
When does an appurtenant easement pass w the dominant tenement?
Appurtenant easement passes automatically w the dominant tenement, regardless of whether it is even mentioned in the conveyance
When does an appurtenent easement pass w the burdened estate?
Automatically, unless the new owner is a bona fide purchaser w/o notice
When is an easement in gross transferable?
Easements in gross are not transferable unless it is for a commercial purpose
In what four ways may an affirmative easement be created?
1) prescription
2) implication
3) necessity
4) grant
What are the requirements for an affirmative easement that has been granted for more than one year?
Must be in writing that complies w the formal elements of a deed
When will an easement be implied?
1) previous use had been apparent, and
2) parties expected that the use would survive b/c it is reasonably necessary to the dominant land's use and enjoyment
When will an easement by created by necessity?
Easement by right of way will be implied by necessity if the grantor conveys a portion of his land w/ no way out, except over some part of the grantor’s remaining land
When will an easement be created by prescription?
An easement may be acquired by satisfying the elements of adverse possession
1) Continuous use for statutory period
2) Open and notorious use
3) Actual use
4) Hostile use (w/o servient owner’s consent)
In what 8 ways may an easement be terminated?
1) estoppel
2) necessity
3) destruction
4) condemnation
5) release
6) abandonment
7) merger
8) prescription
When is an easement terminated by estoppel?
Servient owner materially changes his position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced
In what special situation is an easement by necessity terminated?
When the need ends
When will an easement be terminated by abandonment?
The easement holder must demonstrate by physical action: intent to never use the easement again. Mere nonuse, or mere words, are insufficient to terminate by abandonment
When is an easement terminated by merger?
The easement is extinguished when title to the easement and title to the servient land become vested in the same person
When is an easement terminated by prescription?
The servient owner may extinguish the easement by interfering w it in accordance w the elements of adverse possession
What is a license under real property law?
A mere privilege to enter another's land for some delineated purpose
Are licenses subject to the statute of frauds?
No
Are licenses freely revocable?
Yes
What is the effect of an oral easement that is unenforceable under the statute of frauds?
It is a license
What is a profit in real property law?
The profit entitles its holder to enter the servient land and take from it soil or some substance of the soil
What is a covenant?
A promise to do or not do something related to land
When is an agreement construed as a covenant as opposed to an equitable servitude?
Look to the remedy

Money damages: covenant
Injunction: equitable servitude
What are the two larger issues required for a covenant to run w the land?
1) burden must run w the land
2) benefit must run w the land
When does the burden in a covenant run w the land?
1) writing
2) intent
3) touch and concern
4) horizontal privity
5) vertical privity
When is an easement terminated by prescription?
The servient owner may extinguish the easement by interfering w it in accordance w the elements of adverse possession
What is a license under real property law?
A mere privilege to enter another's land for some delineated purpose
Are licenses subject to the statute of frauds?
No
Are licenses freely revocable?
Yes
What is the effect of an oral easement that is unenforceable under the statute of frauds?
It is a license
What is a profit in real property law?
The profit entitles its holder to enter the servient land and take from it soil or some substance of the soil
What is a covenant?
A promise to do or not do something related to land
When is an agreement construed as a covenant as opposed to an equitable servitude?
Look to the remedy

Money damages: covenant
Injunction: equitable servitude
What are the two larger issues required for a covenant to run w the land?
1) burden must run w the land
2) benefit must run w the land
When does the burden in a covenant run w the land?
1) writing
2) intent
3) touch and concern
4) horizontal privity
5) vertical privity
6) notice
What is horizontal privity for the purposes of determining whether a covenant runs w the land?
Nexus between the original contracting parties. Satisfied by the following relationships
1) grantor/grantee
2) landlord/tenant
3) mortgagor/mortgagee
What is vertical privity for the purposes of determining whether a covenant runs w the land?
Nexus between the original and new owners of the burdened/benefited parcel. Requires
1) contract
2) devise
3) descend

Not satisfied by: adverse possession
When does the benefit run w the benefited parcel in a covenant
1) writing
2) intent
3) touch and concern
4) vertical privity
What is an equitable servitude?
A promise that equity will enforce against successors
How is a equitable servitude created that is binding on successors?
1) writing
2) intent
3) touch and concern
4) notice
What is the equitable defense to the enforcement of an equitable servitude?
Changed conditions. a. Changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area/subdivision has changed
What are the elements of adverse possession?
1) continuous
2) open and notorious
3) actual
4) hostile
What is the statutory period for adverse possession in NY?
10 yrs
What is "open and notorious" use, for the purposes of determining adverse possession?
The kind of possession a usual owner would make under the circumstances
What is "hostile" use, for the purposes of determining adverse possession?
Possessor doesn’t have the owner’s consent to be there
What is the relevance of a possessor's subjective intent w/r/t adverse possession on the MBE? In NY?
MBE: irrelevant

NY: Possessor must have good faith belief that the land that he is occupying is indeed his
What is required in order for adverse possession to tack?
Privity
What are the two general steps in the conveyance and purchase of real estate?
1) land contract
2) closing
What are the requirements of the statute of frauds w/r/t a land contract?
1) Must be in writing, signed by the party to be bound
2) Describe the property
3) State some consideration
What is the exception to the statute of frauds w/r/t land contracts? What are the elements of the exception?
Part performance

Need TWO of the following three:
1) Buyer takes possession
2) Buyer pays all/part of the price
3) Buyer makes substantial improvements
On the MBE, who bears the risk of loss if property is destroyed after a land contract has been created, but before closing?
The buyer
In NY, who bears the risk of loss if land is destroyed after the creation of a land contract but before closing?
So long as the buyer is w/o fault, the risk of loss remains w the seller until buyer has title or takes possession
What two implied promises exist in every land contract?
1) Promise to provide marketable title

2) Promise not to make any false statements of material fact
What is a seller's implied promise to provide marketable title? In which three situations is title unmarketable?
Seller promises that title is free from reasonable doubt, i.e. free from lawsuits and threat of litigation

Title is unmarketable if:
1) adverse possession
2) encumbrances (unless waived)
3) zoning violations
In a land contract, does a seller's implied promise not to make any false statements of material fact include material omissions?
Yes. Majority of state hold sellers liable for:
1) Failing to disclose latent material defects
2) Material lies and omissions
Does a land contract contain an implied warranty of fitness for a particular purpose or habitability? What is the exception to this rule?
No.

But: implied warranty of fitness and workmanlike construction applies to the sale of new home by builder/vendor
What are the two elements of a valid closing?
1) lawful execution of the deed
2) delivery
What is required in order for a deed to be lawfully executed?
Deed must be
1) In writing
2) Signed by the grantor
3) Unambiguous description of the land
What is "delivery" for the purposes of closing a land sale?
Grantor had the present intent to be immediately bound
What is the effect if a deed, absolute on its face, is transferred to a grantee w an oral condition?
The oral condition is void
What is a quitclaim deed?
Contains no covenants
What is a general warranty deed? What warranties are included?
A general warranty deed warrants against all defects in title, including those due to grantor’s predecessor

1) Covenant of seisin
2) Covenant of right to convey
3) Covenant against encumbrances
4) Covenant for quiet enjoyment
5) Covenant of warranty
6) Covenant of further assurances
What is the covenant of seisn?
Grantor owns this estate he now claims to convey
What is the covenant of right to convey?
Grantor has the power to make this transfer (under no temporary restraints on alienation)
What is the covenant against encumbrances?
No servitudes or liens on the property
What are the three present covenants in a general warranty deed? When are they breached?
Breached, if ever, at the time the deed is delivered

1) Covenant of seisin
2) Covenant of right to convey
3) Covenant against encumbrances
What are the three future covenants in a general warranty deed? When are they breached?
Future covenant is not breached, if ever, until grantee is disturbed in possession

1) Covenant for quiet enjoyment
2) Covenant of warranty
3) Covenant of further assurances
What is the covenant for quiet enjoyment in closing of a land sale?
grantee won’t be disturbed in possession by a third party’s lawful claim of title
What is a covenant of warranty?
Grantor promises to defend grantee should there be lawful claims of title brought by others
What is a covenant of further assurances?
Grantor promises to do whatever is reasonably necessary in the future to perfect the title
What two promises are contained in a statutory special deed? Does it apply in NY?
Applies in NY

1) Has not conveyed the property to anyone other than the grantee

2) Property is free from encumbrances made by the grantor
What is the general rule re: who wins in a notice j/d (recording statute)?
If B is a bona fide purchaser, and we are in a notice j/d, B wins, regardless of whether or not she records before A does
What is the general rule re: who wins in a race-notice j/d (recording statute)?
If B is a bona fide purchaser, and we are in a race-notice j/d, B wins if she records properly before A does
What type of recording statute does NY have?
Race-notice
What is a bona fide purchaser, for purposes of a recording statute?
i. A bona fide purchaser is one who:

1) Purchases a property for value

2) Without notice that someone else got there first
What are the three forms of notice for purposes of a recording statute?
1) Actual
2) Inquiry
3) Record
What is the shelter rule?
One who takes from a bona fide purchaser will prevail against any entity that the transferor or bona fide purchaser would have prevailed against
What is a wild deed? What is the rule of wild deeds?
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
What is the doctrine of estoppel by deed?
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the interest that he had earlier transferred
What is the definition of a mortgage?
A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for repayment of a money obligation.
What is generally required in order for a mortgage to satisfy the statute of frauds?
Must be in writing
What is a holder in due course, w/r/t a mortgage?
A holder in due course takes the note free of any personal defenses that could have been raised against the original creditor-mortgagee
To which defenses is a holder in due course immune?
Any personal defenses that could have been raised against the original creditor-mortgagee

E.g. lack of consideration, fraud in the inducement, unconscionability, waiver, estoppel
What is required in order for someone to be a holder in due course?
1) Note must be negotiable (i.e. must be made payable to the named mortgagee

2) Original note must be endorsed and signed by the named mortgagee

3) Original note must be delivered to the transferee

4) Transferee must take the note in good faith w/o notice of any illegaiity

5) Transferee must pay value for the note
Who is liable on the mortgage if Seller has sold the land to Buyer, and the buyer has "assumed the mortgage"?
Both Seller and Buyer
Who is liable on the mortgage if Seller has sold the land to Buyer, and Buyer has taken the land "subject to the mortgage"?
Seller only
What action may a mortgagee bring against the debtor if the amount obtained in a foreclosure sale is less than the full amount of the debt?
Deficiency judgment
Who receives any money left over after the senior mortgagee has obtained the full amount of their debt in a foreclosure sale?
Junior lienholders, then any surplus goes to the mortgagor
What is the effect of a foreclosure sale on any junior/senior interests?
Foreclosure will terminate interests junior to the mortgage being foreclosed but will not affect senior interests
How is priority determined where there are multiple mortgages on a single piece of land?
Priority is determined by the norm of first in time, first in right
What is a purchase money mortgage? What is the special rule re: priority of foreclosure proceeds w/r/t purchase money mortgages?
A purchase money mortgage is a mortgage given to secure a loan that enables the debtor to acquire the encumbered land

A purchase money mortgagee has first priority on the parcel that it finances
What is a mortgagor's right to equitable redemption? What is required to exercise this right? Can it be waived?
At any time up to the date of sale, a debtor has the right to redeem the land and free it of the mortgage

To exercise right of equitable redemption: Pay off
1) Missed payments
2) Interest
3) Costs

Cannot be waived
What is a statutory redemption w/r/t mortgages? Is it recognized in NY?
Gives the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically 6 months to one yr)

Not recognized in NY
What is the general standard re: an action for deprivation of lateral support?
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator generally liable only if negligent
When does strict liability apply in an action for deprivation of lateral support?
P must show that the improvements on P’s land did not contribute to his land’s collapse
What are the two major systems of water use rights w/r/t watercourses?
1) Riparian
2) Prior appropriation
What is the riparian rights doctrine? What rights do riparians have?
Water belongs to those who own the land bordering the watercourse

Riparians share the right of reasonable use of the water. Liable for unreasonable use
What is the prior appropriation doctrine w/r/t water use rights?
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 is a riparian owner

Rights are determined by priority of beneficial use
What is the general rule re: use of groundwater?
The surface owner is entitled to make reasonable use of groundwater

The use must not be wasteful
What is the common enemy rule?
A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water
When may a variance be obtained to a zoning ordinance?
To obtain a variance ,the proponent must show:

1) Undue hardship, and
2) Variance will not work a detriment to surrounding land values
What is an exaction? When are they constitutional?
Exactions are those amenities that a government seeks in exchange for granting permission to build

Exactions are unconstitutional unless they are reasonably related in nature and scope to the impact of the proposed development