New York Bar Exam: Real Property (Ny And Mbe)

Front 1

What must a real property (RP) K have to be enforceable?

Back 1

Any K affecting an interest in RP is not enforceable unless it is signed by the party to be charged or is signed by an authorized agent whose authority is in a signed writing.

Front 2

When a writing of an agreement does not exist, what must part performance do to sufficiently establish the alleged agreement? (4)

Back 2

It must: UA-PA-CIP-CISQ
1) Consist of UNEQUIVOCAL ACTS by the party relying upon the oral agreement - aka PIP:
-PAYMENT in whole or in part,
-taking POSSESSION,
-making substantial IMPROVEMENTS,
2) to which the PERFORMER can POINT in the AGREEMENT,
3) a CHANGE IS POSITION to his /her detriment, and
4) CIRCUMSTANCES make it IMPOSSIBLE or impractical to return to STATUS QUO.

Front 3

Would just one of the requirements for an oral RP K suffice?

Back 3

No. Just paying part or all of the purchase price w/o also taking possession or making improvements does not constitute sufficient part performance. The buyer is limited to a restitution COA to recover the payments from the seller.

Front 4

In NY (and most states) is it possible to achieve PIP alone to take an oral K out of SOF?

Back 4

It's almost impossible to achieve part performance sufficient to substitute for satisfying SOF. NY like most states requires a performance which unequivocally refers to an agreement to convey property, and the buyer's acts alone must conclusively point to a sale of realty w/o resort to oral testimony.

Front 5

What has NY held on the part performance oral RP K issue?

Back 5

A buyer taking possession, paying a down payment and taxes, and making repairs didn’t constitute sufficient part performance, because these same acts also could have been done by a mere tenant.

Front 6

How may the doctrine of acquiescence satisfy SOF if the boundary line of an adjoining parcel is disputed because of uncertainty in the deed’s description? (2)

Back 6

If

1) Parties informally orally agree on a boundary and 1 takes possession for “long period of time,” OR

2) 1 landowner puts up a fence w/o express agreement and the other owner doesn’t object for “long period of time,”

this satisfies the SOF under the “doctrine of acquiescence.”

Hint 6

either/or

Front 7

Can estoppel take an oral K out of SOF?

Back 7

Yes. (Hey, we all need a gimme now and then!)

Front 8

What must a signed RP K contain to be upheld? (3)

Back 8

A signed RP K must contain all of the material elements:

1) it must define buyer and seller;
2) sufficiently describe the real property; and
3) state the purchase price. If this detail is lacking, the court won’t entertain parol evidence to fill in the void.

Front 9

Can the failure of a B to meet a condition precedent as to financing excuse him from performance?

Back 9

If the K provides that it is “subject to B obtaining financing at x percent,” then if B can only obtain a x.2 percent mortgage, the condition fails and B is excused from the K. S, however, can’t assert this failed condition against B because it was placed in the K for B’s benefit, and only B may waive or assert it.

Front 10

To what degree must a K and deed describe a property in order to be enforceable?

Back 10

To be enforceable, the K and deed must sufficiently describe a particular parcel to the exclusion of all others. The description must ID the subject property w/ a degree of certainty to definitively ID the property being sold.

Front 11

What’s another acceptable method of describing a property? (5)

Back 11

Another way to describe property is by metes and bounds, beginning at a certain point, and giving the distances and angles describing an enclosed parcel. Hierarchy:
1) Natural monuments
2) Artificial monuments, fence, street, stakes.
3) Adjacent tracts or boundaries
4) Courses and distances
5) Area

S’s deed described a boundary as a 100 feet to an adjoining stream. Distance was actually 190 ft. Since description to natural monument takes priority over 4, court will resolve the conflict in favor of the 190 ft to the stream.

Front 12

Can a property description be incorporated by reference from another document?

Back 12

Yes. A description may be incorporated by reference from another document, usually a deed.

Front 13

What does a K presume as to title?

Back 13

A K to sell land is an agreement to sell good title to land. If the K between the buyer and seller makes no mention as to the quality of the title, it is implied in the K (but not in the deed) that the seller will tender a marketable title at closing.

Front 14

What is marketable title?

Back 14

Marketable title is one free from encumbrances and from reasonable doubt as to the interest of any 3rd person. It’s a title that the buyer will not have to defend through litigation.

Front 15

May a buyer be forced to accept an unmarketable deed?

Back 15

Where a search of the seller’s chain of title reveals ownership gaps, judgments, mortgages, or where an inspection of the property reveals an encroachment or an adverse possessor, a buyer should not be forced to accept the unmarketable deed. Moreover, property owned by an adverse possessor is not marketable until a court quiets title.

Front 16

Does a seller’s use of property in a way that violates municipal building codes render title unmarketable?

Back 16

No. A seller’s use of a property that violates building code doesn’t render title unmarketable. Such defects have to do with quality of the structure rather than quality of title. However if building dept has started litigation due to a code violation, the litigation renders title unmarketable (Lien will be placed on property).

Front 17

A buyer’s property is impliedly subject to what law?

Back 17

A buyer impliedly takes title subject to existing zoning laws. Likewise a change in the zoning laws after K but before closing will not relieve the buyer from the K.

Front 18

In MBE, what result if seller’s current use of property violates current zoning laws?

Back 18

If MBE seller’s current use of the prop violates current zoning laws, then the existing zoning violation renders MBE title unmarketable.

Front 19

Does NY follow the MBE zoning rule?

Back 19

NY doesn’t follow the MBE (majority) rule. In NY, existing zoning violations don’t render title unmarketable unless K so expressly provides.

Front 20

What duties does an implied covenant of marketable title impose on Seller?

Back 20

The implied covenant of marketable title imposes no obligations on seller until day of closing. Thus, seller won’t be in breach until law day (another term for closing date).

Front 21

Assuming all goes well, what happens to the implied covenant of marketable title on the day of closing?

Back 21

The Covenant merges into deed when deed delivered and accepted by buyer.

Front 22

What does the doctrine of caveat emptor state? When would it preclude B's claim for rescission? (3)

Back 22

It means that a buyer should take CRC and inquire into property’s condition. This doctrine precludes a claim for rescission by buyer for structural and other defects that were

1) Open and notorious;
2) Discoverable by a reasonable inspection of premises or public records and purchaser had un-impeded opportunity to inspect;
3) Not concealed by silent seller and no fraudulent misrepresentations were made.

Front 23

Under NY’s real property law, is there a duty for a broker or seller to disclose to buyer prior existence of AIDS, homicide, or other crimes on premises being sold?

Back 23

Under NY’s real property law, there is no duty for a broker or seller to disclose to buyer prior existence of AIDS, homicide, or other crimes on premises being sold.

Front 24

What’s the effect of an ‘as is’ clause in a RP K?

Back 24

An ‘as is’ clause in a real property K places on the buyer the risk of structural defects or the physical/environmental condition of the property. It imposes duty on buyer to inspect the quality, fitness, and value of the property before signing the K. However, an ‘as-is’ clause can’t be used by a seller to bar claim for fraudulent concealment.

Front 25

What’s Property Disclosure Act?

Back 25

NY Statute, failure.
Obligation on seller to fill out 48 q questionnaire, based on seller’s knowledge.
If you don’t do it, penalty is $500.00.

Front 26

If an MBE property gets damaged in the executory period, and the loss is not the fault of either party, who bears the risk of loss? (3)

Back 26

If an MBE property is
1) damaged between K signed, and deed delivered, and
2) loss is not fault of either party, then
3) absent a contrary statute, or specific language, the risk of loss is on the buyer.

Front 27

What’s the doctrine of equitable conversion (EC)?

Back 27

Under EC, when a real prop K is signed and could be specifically enforced, equity converts the seller’s interest into personal property and the buyer is deemed to be the equitable owner of the realty. Under EC, the title to the land is in the buyer the moment K is executed.

Front 28

Is there any way to mitigate the buyer’s loss if property is damaged in the executory period?

Back 28

Most states, but not NY, impose a trust on the seller’s insurance on the property for the benefit of the buyer, thereby reducing the purchase price to the extent S the seller receives insurance proceeds.

Front 29

What are the exceptions to the EC risk of loss rule? (3)

Back 29

1) The loss was the seller’s fault. (Burns house down with cigarette.)
2) The seller’s title was defective and S could not have tendered marketable title at closing. (Buyer bought, was supposed to close 6/1. If can demonstrate that on law day, S couldn’t convey title, in the clear.)
3) If K subject to condition not satisfied, thereby excusing buyer from K.

Front 30

What does the Uniform Vendor Purchaser and Risk Act (UVPRA) provide?

Back 30

Under UVPRA (NY and 12 other states), even though equitable title passes to buyer when K signed, by statute, the risk of loss remains on seller who is in the best position to have insured against the risk.
(Big one for NY)

Front 31

Under UVPRA, when does the risk of loss pass from seller to the buyer? (2)

Back 31

Under UVPRA, risk of loss does not pass from seller to buyer until
1) Title passes at closing; or
2) Buyer takes possession prior to closing. (This is the one they like to test on, you become the person best able to avoid the risk. If client does this, get them to buy insurance.)

Front 32

What result in NY if realty is either materially destroyed through no fault of either party, or taken by eminent domain?

Back 32

In a NY real estate K, if the realty is materially destroyed through no fault of either party, or is taken by eminent domain (ED), the seller can’t enforce the real property K. The buyer however, may enforce the K with an abatement in the purchase price

Front 33

What if only an immaterial part of the realty above is damaged or taken by eminent domain?

Back 33

If merely an immaterial part of premises damaged, or taken by ED, then K still enforceable by either party w/ an abatement in purchase price.

Front 34

Is it a problem if the parties in a RP K don’t specify a closing date?

Back 34

The parties to a real property K need not specify a closing date in K because court will infer a reasonable time.

Front 35

What if in the RP K above, the closing date is fixed and either party fails to close on that date?

Back 35

If closing date is fixed in K, it is only tentative, and failure of either party to close on that date is not a breach of K. Both parties are allowed ‘reasonable time’ even beyond the closing date to perform their respective obligations unless the K is expressly made ‘time of the essence.’

Front 36

Are the terms ‘on or before’ or ‘not later than’ sufficient to make the K TOE?

Back 36

Term ‘on or before’ or ‘not later than’ is not sufficient to make time of the essence.

Front 37

What happens at closing?

Back 37

The closing is where the deed is executed and delivered by the seller, and the buyer tenders certified or bank checks.

Front 38

May a B unilaterally make the original closing date ‘time of the essence?’ (3)

Back 38

No. However, when one party asks for an extension, then to avoid further extensions, one party may make TE if

CU NO RT:
1) CLEAR and UNEQUIVOCAL notice is given that time is of essence;
2) NOTICE to the OTHER party that S’s failure to close will put S in default and render S liable for damages; and
3) A REASONABLE TIME to close is given. (depends, but generally up to a month.)

Front 39

What remedies for seller? (2)

Back 39

1) Specific performance.
2) Keep deposit and sue for difference between K price and FMV at time of breach.

Front 40

Buyer’s remedies? (3)

Back 40

1) Recover down payment + incidental costs for title search attorney's fees, survey.
2) Sue in equity for specific performance + consequential damages like increase in interest rate, moving/storing expenses.
3) Rescission of K and restitution for down payment.

Front 41

When does a concurrent estate (CE) exist?

Back 41

A CE exists when 2 or more persons hold a simultaneous present or future interest in the same piece of property.
3 types of CE:
Tenancy in Common (TC);
Joint Tenancy (JT); and
Tenancy by the Entirety (TE).

Front 42

What are the rights and obligations of a co-T?

Back 42

Holders of concurrent estates each have an indivisible right to possess the entire parcel and not just a fractional portion; that is no co-tenant owns any particular portion of the property to the exclusion of the others and each has an unlimited right to possess the entire property even though each owns only a fractional share.
A co-tenant is free to sell or lease his undivided interest of possession, but he cannot sell, lease, or encumber the entire parcel or a specific portion of the realty w/o the consent or to the exclusion of the other co-tenants.

Front 43

What’s a TC?

Back 43

A TC arises where multiple parties have an undivided interest in a single property. The interest is freely assignable, and upon death, passes through each co-tenant’s estate, i.e., no ROS.

Front 44

Does a JT create a ROS in the surviving JT?

Back 44

A JT creates a ROS in the surviving JT. Upon the death of one JT, that decedent’s interest in the property passes to the surviving JT’s by operation of law. Thus, the JT’s interest cannot be bequeathed or passed through intestacy.

Front 45

Common Law presumption of property passing to 2 persons not H and W vs. modern statutory presumption:

Back 45

At common law, there was a presumption that when property passed to 2 or more persons who were not husband or wife, it passes as a JT w/ ROS. Today, in every state, there is a statutory presumption that unless otherwise specified, this creates a TC and not a JT. To rebut this presumption, the survivorship intent must be clearly spelled out in the conveying instrument.

Front 46

May a JT convey her interest inter vivos w/o consent or knowledge of other JT?

Back 46

A JT may convey her interest inter vivos w/o the consent or even the knowledge of the other JT’s. The effect of such a conveyance will convert the JT’s interest into a TC with the remaining interests, who will remain as JT’s w/ respect to themselves.

Front 47

Can a JT’s interest be attached by judgment creditors?

Back 47

A JT’s interest may be attached by judgment creditors. However, a judgment creditor who files a judgment against one JT, creates a lien on that JT’s fractional interest, but does not effect a severance of the realty, and the lien can be defeated if the debtor JT is the first JT to die. The entire interest then passes to the survivors w/o the judgment lien.

Front 48

What are the four unities that must exist to create a JT or a TE?

Back 48

To create a JT (or a TE) four unities must be exist to support the fiction that the co-T’s are holding property as if they were one. Unity of: (PITT)
1) POSSESSION – each JT must have an undivided right of possession. This is the one unity that is also necessary for a TC;
2) INTEREST – each JT must have an equal interest (as to quantity, quality, duration);
3) TIME; and
4) TITLE.

Front 49

How did CL view property as held by a H and W?

Back 49

At CL, a husband and wife merged by marriage; the marriage entity held title to their property. Neither spouse had a separate interest in the realty, nor were they capable of holding property as JT or TC because they held it in the marriage entity, w/ each spouse holding only a possible future interest of survivorship.

Front 50

Are any words of survivorship needed to create a TE?

Back 50

No words of survivorship need be expressed to create a TE. All that is required is that the deed name 2 parties who are legally husband and wife at the time of the conveyance. The deed need not contain the word ‘survivorship’ or the words ‘husband’ or ‘wife.’

Front 51

What result when property is transferred to 3 persons, 2 of whom are H and W?

Back 51

A transfer of property to 3 persons, 2 of whom are H and W, creates a ½ interest in H and W as TE, and a ½ interest in X, the third person.

Front 52

In what ways are a TE and JT alike? (3)

Back 52

1) Both require PITT unities.
2) Both have element of survivorship.
3) Neither a JT or TE may devise (will) her interest in the realty because it is automatically extinguished upon death and it passes by operation of law to survivor.

Front 53

How does a TE differ from a JT? (3)

Back 53

A TE differs from JT in that
1) A TE requires an existing valid marriage; and
2) Neither spouse may destroy a TE w/o consent of other (can't get ex parte partition), and
3) A JT’s judgment creditor may petition the court to partition or sell the JT’s interest, but one spouse’s judgment creditor may not.

Front 54

Can an MBE spouse either
1) unilaterally transfer her interest in a TE; or
2) transfer an encumbered interest of the TE?

Back 54

An MBE spouse lacks the capacity to unilaterally transfer the interest in a TE or encumber an interest of the TE.

Front 55

How about in NY?

Back 55

Either spouse may unilaterally mortgage, convey, or encumber the survivorship interest, subject to the other spouse’s survivorship interest, which can totally extinguish the transferred interest. Buyer’s, mortgagee’s, or subject creditor’s liens are not liens against the property, but are a lien against the spouse’s survivorship interest.

Hint 55

1) Thus in NY, if H mortgages or sells his interest in Blackacre, the buyer or mortgagee receives only a contingent interest, which is contingent on H surviving W. If H dies first, W gets 100% of Blackacre. If W dies first, H gets 100% and the lien attaches to the property.
2) If W and H get a divorce, thereby converting the TE into a TC, then H’s grantee or mortgagee becomes a TC w/ W and has the right to share in possession rents or profits, or can petition for the sale of the property.

Front 56

What happens if it is later discovered that a TE was created while the parties were not in fact married, or that the marriage was void?

Back 56

If it is later discovered that the TE was created while the parties were not in fact married, or that the marriage was void, then no TE was created. The court will examine the deed and then the general rules concerning JTs and TCs.

Front 57

How does NY treat the above?

Back 57

In NY, deeds executed on or after 9/1/75 that purport to convey to a “H and W” who are not in fact married, are presumed by the statute to have taken as H and W and as JT’s w/ ROS.

Front 58

How may a TE be defeated? (4)

Back 58

A TE is defeated by four Ds:
1) DEATH of one of the cotenant spouses; watch out if spouse dies seconds before other. If it can be shown that one survived the other even by a few seconds, (water/smoke in one’s lungs, but not in the other’s after accident) that 1st one takes;
2) DEBTOR - one spouse becomes one;
3) DUAL TRANSFER - in which both H and W take part;
4) DIVORCE, annulment, and in NY, a separation judgment.

Hint 58

4 D's

Front 59

Must an ex parte divorce decree be given FF&C in NY?

Back 59

Yes, but only to the extent that the marital status has been adjudicated. This gave rise to concept of ‘divisible incidents’ of divorce, which means that an ex parte divorce, having valid in rem jurisdiction over the marriage, but not in personam jurisdiction over the ∆, can’t effect the ∆’s ‘vested economic incidents’ arising out of the marital relationship; e.g., TE’s, alimony, child support, and equitable distribution.

Front 60

In NY, can a separation judgment convert a TE to a TC?

Back 60

In NY, but not multi-state, if a separation judgment is granted, then even though it does not dissolve the marriage, it nevertheless sufficiently alters the marital relationship so as to convert the TE to a TC.

Front 61

When may a co-T out of P demand rent from a T in P?

Back 61

A Co-T out of P has no right to demand rent from a T in possession unless the T in P
1) Agreed to pay rent;
2) Wrongfully ousted the other co-T; or
3) Denied the co-T access to property.

Front 62

What result if one the above three things happens?

Back 62

Where one of the above occurs, the co-T in P must account for ½ the market rental from the time of the refusal or denial. If the co-T in P made tax and mortgage payments and/or necessary repairs, she could recover ½ of these payments.

Front 63

What would happen if the rental value were to exceed the above payments?

Back 63

If the rental value exceeded these payments, the co-T in P has no right to contribution from the other. [look this up; doesn’t sound right]

Front 64

What becomes of rent proceeds collected by a T-in-C from a 3rd party in possession of a property (lessee)?

Back 64

Because each co-T has an equal right to share an income produced by the realty, rents collected by a T in C from a 3rd party in possession are accountable to all other tenants.

Front 65

In NY and MBE, may one co-T adversely possess against another?

Back 65

Absent an ouster or hostile act preventing possession, one MBE co-T may not adversely possess against another.

NY: by statute, absent a hostile act, a co-T’s exclusive possession is not adverse until that co-T has been in continuous, exclusive possession for 10 years. NY requires 2 10 yr periods for concurrent Ts to adversely possess against one another:
1) The 1st 10 yrs makes the co-T’s possession hostile by statute; and
2) the 2nd 10 yr period establishes adverse possession.

Front 66

How does the law deal with responsibility for repairs and improvements made by a co-T who is either in possession or rents out the property? (When can that co-T seek contribution)

Back 66

Where the co-T possesses or rents out the property and makes necessary repairs, each co-T is responsible just like w/ the taxes and mortgage payments.
But a co-T who makes unnecessary repairs, w/o consent of other co-Ts, is deemed a volunteer. Only when the property is sold and an accounting taken may that co-T seek contribution.

Front 67

To what extent will the law reimburse the deemed volunteer in the above? (2)

Back 67

The court will reimburse the volunteer, but only to the extent
1) That the improvements increased the selling price; or
2) For the actual cost of the improvements, whichever is less.

Front 68

How is liability assigned to co-T’s for injuries on the realty?

Back 68

Co-Ts are jointly and severally liable for injuries on the realty unless one is out of possession or control of all or part.

Front 69

May TC’s or JT’s transfer their interests w/o the consent of the other? May they petition the court for partition? (3)

Back 69

Can transfer interests w/o permission of other or can ask court for partition petition w/ COW:
1) COURT decree
The court will render a final accounting after weighing the equities, and will equitably divide the property in kind (usually vacant) if it is capable of division; or
will order it sold, and equitably divide the proceeds.
2) ORAL partition - very limited.
Doesn’t happen often. Tough SOF problem.
3) WRITING - signed writing voluntarily partitioning.

Front 70

What does Adverse Possession (AP) allow?

Back 70

AP permits wrongful and un-permissive possession to become ownership through the passage of time. AP need not possess the land under a claim of right.

Front 71

How does the actual owner get the AP out? When does the AP take possession?

Back 71

Each jurisdiction has a different SOL for ejectment after which time, the actual owner’s COA will be barred if the trespasser has established title by AP.

Front 72

What is the AP SOL in NY?

Back 72

In NY, SOL is 10yrs, MBE + common law 20yrs, but you’ll usually get a statute that states the SOL. Fact pattern - have to watch if person squatting.

Front 73

What must the real owner do to interrupt the AP’s SOL?

Back 73

The owner must commence an ejectment action to interrupt the AP’s SOL. Merely telling AP to get off land does not interrupt the period of AP.

Front 74

What is needed to establish AP? (6)

Back 74

EUNUCH
1) EXCLUSIVE possession;
2) UNINTERRUPTED possession;
3) NOTORIOUS possession;
4) UNDER no disability – minor, insane, etc.;
5) CONTINUOUS possession;
6) HOSTILE possession.
NB -- Bar exam will make one element problematic: Used house every weekend for 10 yrs. Improvements made, so that if the true owner had come any other time of year, they would’ve (should’ve) seen them.

Front 75

Is the seasonal use of a vacation house sufficient to establish EUNUCH elements?

Back 75

Seasonal use of a vacation property is sufficient to meet EUNUCH elements as long as the use would put the true owner on notice.

Front 76

What result if an AP’s claim is not based on a written instrument?

Back 76

Then only that portion actually occupied can be adversely possessed.
In NY, a party seeking to obtain title by AP on a claim not based on a written instrument, must also have cultivated, improved, or protected the property by a substantial enclosure.

Front 77

What does the doctrine of constructive possession state?

Back 77

Where possessor has a written colorable title to an entire parcel, but occupies only part of it, he is regarded as being in possession of the whole.

Front 78

Must the same AP be in possession for the entire AP period?

Back 78

No. Law permits tacking allowing one AP to tack on the time of a previous AP provided there was privity of estate.
Some sort of handing over of rights, like a quit-claim deed.

Front 79

What can negate the Hostility element of EUNUCH? (3)

Back 79

The hostility element of EUNUCH is negated if, during the 10yr period, AP calls the owner OPA:
1) OFFERS to buy land from owner;
2) asks owner PERMISSION to use the land;
3) ACKNOWLEDGES title in the owner.

Front 80

What happens in NY when a NY tenant claims AP against a landlord?

Back 80

NY creates a presumption that the tenant’s possession is not hostile until 10 yrs after lease terminates, or where there is no written lease, after T’s last payment of rent.

Front 81

Freehold Estates: What is a fee simple absolute

Back 81

Language: "To A and His Heirs," or "To A." Duration: Absolute ownership of potentially infinite duration. Transferability: Devisiable, descendible, alienable. FI: None.

Front 82

Freehold Estates: What is a fee tail?

Back 82

Obsolete. Language: "To A and the airs of his body." Duration: Last only as long as there are lineal blood descendants of grantee. Passes automatically to grantee's lineal descendants. Transferability: Passes automatically to grantee's lineal descendants. FI: Reversion if held by grantor, Remainder if held by third party.

Front 83

Freehold Estates: What are the three species of defeasible fees?

Back 83

Fee simple determinable, Fee simple subject to condition subsequent, Fee simple subject to an executory limitation.

Front 84

What is a fee simple determinable?

Back 84

Language: Clear Durational Language - language providing that upon the happening of a stated event, the land is to revert to the grantor, i.e., "To A so long as…, To A until…, To A while…." Duration: Potentially infinite, so long as event does not occur. Transferability: Alienable, devisable, subject to condition. FI: Possibility of reverter (held by grantor). FSDPOR: Fee Simple Determinable, Possibility Of Reverter. ***NY, FSD called fee on limitation***

Front 85

Freehold Estates: What is a fee simple subject to condition subsequent?

Back 85

Language: "To A, but if X event happens, grantor reserves the right to reenter and retake." Grantor must carve out right of entry. Duration: Potentially infinite, so long as event does not occur. Transferability: Alienable, devisable, descendible, subject to condition. FI: Right of entry/power of termination (held by grantor) ***NY FI called right of re-acquisition***. It's my prerogative. ***NY FSSCS called a fee on condition***

Front 86

Freehold Estates: What is a fee simple subject to an executory limitation?

Back 86

Language: "To A, but if X event occurs, then to B." Duration: Potentially infinite, so long as stated contingency does not occur. Transferability: Alienable, devisable, subject to condition. FI: Shifting Executory interest (held by third party). Just like FSD, only now, if the condition is broken, estate is automatically forfeit in favor of someone other than O, grantor.

Front 87

Freehold Estates: What is a life estate?

Back 87

Language: "To A for life." "To A for the life of B." Duration: Must be measured by life of transferee or by some other life (per autre vie). Transferability: Alienable, devisable and descendible if pur autre vie and measuring life is still alive. FI: Reversion if held by grantor, Remanider if held by third party.

Front 88

Freehold Estates: What are 2 important rules of construction as concern the defeasible fees?

Back 88

1. Precatory language (words of desire, hope, or intention) are insufficient to create a defeasible fee. Alos, courts disfavor restrictions on the free use of land. Therefore, courts will not find a defeasible fee unless clear durational language is used.
2. Absolute restraints on alienation are void. An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to any reasonable time limited purpose.

Front 89

Freehold Estates: What are the distinguishing characteristics of the LE?

Back 89

1. LT is entitled to all ordinary uses and profits from the land.
2. LT must not commit waste (anything that hurts the FI holders)

Front 90

Freehold Estates: What are the three species of waste?

Back 90

1. Voluntary or affirmative waste: actual overt conduct that causes a decrease in value, willful acts of destruction. LT must not consume or exploit natural resources on the property (such as timber, oil, or minerals) unless one of the 4 exceptions apply.
2. Permissive waste, or neglect. Occurs when land is allowed to fall into disrepair or LT fails to reasonably protect the land. LT must simply maintain the premises in reasonable good repair. LT obligated to pay all ordnary taxes on the land, to the exten of income or profits from the land. If there is no income or profit, LT required to pay all ordinary taxes to the extent of the premise's fair rental value.
3. Ameliorative waste. LT must not engage in acts that will enhance property's value, unless all of the FI holders are known, and consent. ***NY LT may make improvements that a prudent FS ownder would make under the circumstances unless the remaindermen object.***

Front 91

Freehold Estates: What are the exceptions to the rule on affirmative waste?

Back 91

PURGE:
1. Prior Use, meaning that prior to the grant, the land was used for exploitation. LT may continue to exploit, unless otherwise agreed. PU and open mines doctrine: If mining was done on the land before LE bagan, LT may continue to mine, but is limited to the mines already open. No new mines.
2. Reasonable Repairs. LT may consume natural resources for reasonable repairs and maintenance.
3. Grant. LT may exploit if expressly granted that right.
4. Exploitation. The land is suitable only to exploit (quarry)

Front 92

Freehold Estates: What are the only 3 Fis capable of creation in the G?

Back 92

1. Possibility of reverter. Only walks w/ FSD.
2. Right of entry, also known as the power of termination. Accompanies only the FSSCS.
3. Reversion. Safety fallback, the leftover. It's the FI that arises in a G who transfers an estate of lesser quantum than she started with, other than a FSD or a FSSCS.

Front 93

Freehold Estates: What are the FIs held by someone other than G?

Back 93

If FI held by someone other than G, has to be either:
1. Vested Remainder, of which there are three types: (i) the indefeasibly vested remainder, (ii) the vested remainder subject to complete defeasance (also known as VR subject to total divestment), and (iii) the vested remainder subject to open.
2. A contingent remainder, OR
3. An executory interest, of which there are two types: (i) the shifting executory interest, and (ii) the springing executory interest.

Front 94

Freehold Estates: 3 tasks in assessing future interests in transferees?

Back 94

1. Must distinguish vested remainders (of which there are 3 types) from contingent remainders,
2. Must distinguish the 3 kinds of vested remainders from each other, and
3. Must distinguish all remainders from executory interests.

Front 95

Freehold Estates: What is a remainder?

Back 95

A remainder is FI created in Gee (never G) 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.
A remainderman always accompanies a preceding estate of known fixed duration. That preceding estate is usually a LE or a term of years. "A for life then to B" or "A for 10yrs, then to B"
A remainderman cannot cut short or divest a prior transferee. He waits for the preceding estate to run its natural course.
If present estate is a defeasible fee, FI is NEVER a remainder. Instead it's an executory interst if held by someone other than O.
Remainders are either vested or contingent.

Front 96

Freehold Estates: What is the difference between vested remainders and contingent remainders?

Back 96

A 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 person OR is subject to a condition precedent, or both. Ex: "To A for life, then to B's first child" is an example of a remainder that is contingent b/c it is created in an unborn/unascertained person. "To A for life, then if B graduates from college, to B" is a remainder that is contingent b/c it is subject to a condition precedent. Once the condition precedent is satisfied, the contingent remainder automatically transforms into an indefeasibly vested remainder.
Note: In NY, any FI in a Tee that is subject to a condition precedent is called a remainder subject to a condition precedent.

Front 97

Freehold Estates: What has replaced the abolished rule of destructibility of CRs?

Back 97

In NY and MS, a CR is no longer destroyed if it is still contingent at the time the preceding estate ends. To A for life, and if B has reached 21, to B. A dies, B only 19. Now, if the CR is still contingent, O or O's heirs will hold the estate subject to B's springing executory interest. Once B reaches 21, B takes.

Front 98

Freehold Estates: What's the rule in Shelley's case?

Back 98

Abolished in NY and almost everywhere else. If O conveyed "A to life, then, on A's death, to A's heirs," and A was still alive, the Present and FIs would merge giving A a FSA (to promote alienability). Today, the conveyance would give A a life estate, and A's as yet unkown heirs have a CR. O has a reversion, since A could die w/o heirs.

Front 99

Freehold Estates: What's the doctrine of worthier title?

Back 99

A rule of construction. Still viable in most states today, but abolished in NY w/ respect to transfers taking effect after 9/1/67. Applies when O, who is alive, tries to create a FI in his heirs (a living person has no heirs). O alive, conveys "to A for life, then to O's heirs." If DWT didn't apply, A has LE, and O's heirs have a CR b/c O still living. Instead, because of DWT, the CR in O's heirs is void. Thus, A has a life estate, and O has a reversion.
Note: G's intent controls. If G clearly intends to create a CR in his heirs, that intent is honored.

Front 100

Freehold Estates: What are the 3 types of vested remainders?

Back 100

*Note: Only remainders can be vested.*
1. The indefeasibly vested remainder: the holder of an IVR is certain to acquire an estate in the future, w/ no conditions attached. It's the best FI one could hope for. To A for life, then to B. A has LE, B has IVR. If B predeceases A, at CL, B's FI passes by his will or intestacy to his heirs.
2. Vested Remainder Subject to Complete Defeasance (VRSCD) [***NY this remainder called a "remainder vested subject to complete defeasance***] Here remainderman's taking is NOT subject to any condition precedent. However, his right to possession could be cut short b/c of a condition subsequent.
3. VR Subject to Open (VRSO). Think category/class. Here, a remainder is 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 b/c additional takers can still qualify as class members. "To A for life, then to B's children." A alive, B 2 kids, C and D. C and D have a VRSO.

Front 101

Freehold Estates: What's the difference b/t a condition precedent and a condition subsequent?

Back 101

A CP creates a contingent remainder. A CS creates a VRSCD.
To tell the difference, apply the "comma rule": When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a VRSCD. "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. A has a life estate. B has VRSCD. C has a shifting executory interest. If B under 25 at time of A's death, B takes. B must live to 25 to retain interest, or B's heirs lose it all, and C or C's heirs take. O has a reversion, b/c possible that neither C nor C's heirs will exist if/when the condition is breached.
If the conditional language appears before the language creating the remainder, the condition is a condition precedent, and you have a contingent remainder. O conveys "To A for life, and if B has reached the age of 25, to B. If B is still alive but under 25 at time of A's death, B cannot take. Instead, estate reverts back to O or O's heirs, who hold subject to B's springing executory interest. (If and when B reaches 25, B divests O)

Front 102

Freehold Estates: VRSO When is a class open? When is it closed.

Back 102

A class is open if it is possible for others to enter.
A class is closed when its maximum membership has been set. Persons born later are shut out.

Front 103

Freehold Estates: What's the rule of convencience?

Back 103

A class closes whenver any member can demand possession. "To A for life, then to B's children. A alive B has 2 kids, C and D. The class closes at B's death, and also, according to rule of convenience, at A's death, no matter if B still alive. Bright line rule. Exception: Womb rule. A child of B in the womb at A's death will share w/ C and D. At CL, if C or D predeceases A, default is their share goes to their devisees or heirs.

Front 104

Freehold Estates: What's an executory interest?

Back 104

It's a future interest created in a transferee (3P), 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").
1. Shifting executory interest: always follows a defeasible fee and cuts short someone other than the grantor. "To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs. B has shifting executory interest. B doesn't have a remainder, b/c remainders never follow defeasible fees. A has a fee simple subject to B's shifting executory interest.
2. Springing executory interest: O conveys: "To A, if and when he marries." A unmarried. A has a springing executory interest. G has fee simple subject to A's springing executory interest. A's marrying will cut short G's interest.
Note: NY has abolished the distinction between executory interests and contingent remainders. Instead contingent remainders and executory interests are called: Remainders subject to a condition precedent.

Front 105

RAP: What's the rule?

Back 105

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest (or fail to vest) more than 21 years after the death of a measuring life.

Front 106

RAP: What's the 4 step technique to assess potential RAP problems?

Back 106

1. Determine which future interests have been created by the conveyance. RAP potentially applies only to CRs, EIs, and certain VRSOs. RAP doesn't apply to any future interest in O the grantor, or to indefeasibly vested Rs, or to VRSCDs.
2. ID the conditions precedent to the vesting of the suspect FI.
3. Find a measuring life. Look for a person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence.
4. Ask: Will we know, w/ certainty, w/in 21 years of the death of our measuring life, if our FI holder(s) can or cannot take? If so, the conveyance is good. If not (if any possibility, however remote, that the CP could or could not occur more than 21 years after the death of a measuring life), the FI is void.

Front 107

RAP: What are 2 bright line rules of CL RAP?

Back 107

1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the CL RAP. Bad as to one, bad as to all. To be valid, it must be shown that the condition precedent to every class member's taking will occur w/in the perpetuities period. If it is possible that a disposition might vest too remotely w/ respect to any member of the class, the entire gift is void.
2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.
Ex: "To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs." 1. Classify the FI: B has a shifting executory interest. 2. What are the conditions that will trigger B's entitlement to take? The land must cease to be used for farming. 3. A is the measuring life. 4. Will we know with certainty, w/in 21 years of the death of the measuring life, if a FI holder can take? No. A might abide by condition. It might be hundreds of years before the condition is violated. 5. Strike the offensive interest, we are left with: To A and his heirs so long as the land is used for farm purposes. A has FSD, O has possibility of reverter. Now no RAP problem, b/c RAP doesn't apply to FIs in O.

Front 108

RAP: Does a gift from one charity to another violate the RAP?

Back 108

No.

Front 109

RAP: What's the wait and see doctrine?

Back 109

MS only, NY doesn't follow. Under this majority reform effort, the validity of any suspect FI is determined on the basis of the facts as they now exist, at the conclusion of our measuring life. Eliminates the "what if" or "anything is possible" line of inquiry.

Front 110

RAP: What's the USRAP?

Back 110

Codifies the CL RAP, and in addition, provides for an alternative 90 year vesting period.

Front 111

RAP: What do the wait and see and USRAP reforms embrace?

Back 111

1. The cy pres doctrine: As near as possible. If a given disposition violates the rule, a court may reform it in a way that most closely matches G's intent while complying w/ RAP.
2. The reduction of any offensive age contingency to 21 yrs to allow the transfer to survive.

Front 112

RAP: What's the NY perpetuities reform statute?

Back 112

NY Applies the CL RAP, and has rejected wait and see and cy pres, except for charitable trusts and powers of appointment, Trusts. 3 points:
1. Under NY perpetuities reform statute, where an interest would be invalid b/c it is made to depend on any person's having to attain an age in excess of 21 years, the age contingency will be reduced to 21 yrs.
2. The CL fertile octogenarian principle is modified by the NY PRS. NY statute presumes that a woman over 55 can't have a child. The possibility that a person may have a child by adoption is disregarded.
3. The NY suspension rule (tested w/ trusts and Wills): The rule against suspension of the absolute power of alienation applies the CL RAP to restrictions on the power to sell or transfer. Thus, an interest is void if it suspends the power to sell or transfer for a period longer than lives in being plus 21 years. For a conveyance to be valid under the suspension rule, there must be persons in being who could join together in a conveyance of the full fee simple title w/in lives in being plus 21 years.

Front 113

Concurrent Estates: What's a JT?

Back 113

1. 2 or more own w/ ROS.

2. Creation must be express

3. Severance

a. suit for partition

b. inter vivos conveyance by one JT

- ** NY exception to b.: NY follows lien theory of mortgages, thus mortgage on interest of one JT does not sever tenancy

Front 114

Concurrent Estates: What's a TE?

Back 114

A protected marital interest between H and W w/ ROS.

Severance:

- voluntary partition

- conveyance signed by both parties

- divorce

***NY: grant to H and W (unless expressly deemed otherwise)

***NY: if spouse mortgages interest, purchaser takes as TC, subject to remaining T's ROS.

Front 115

Concurrent Estates: What's a TC?

Back 115

2 or more own w/ no ROS.

Front 116

Concurrent Estates: What are the distinguishing characteristics of a JT?

Back 116

1. ROS - when one JT dies his share passes automatically to surviving JT.
2. A JT's interest is alienable. It is not, however, devisible or descendible b/c of ROS. Share is extinguished upon death.

Front 117

Concurrent Estates: What's needed to create a JT?

Back 117

1. The 4 unities, T-TIP (PITT):
(1) Time
(2) Title
(3) Identical equal Interest and
(4) Identical rights to Possess the whole.
2. G must clearly express the ROS.
3. Use of a straw. (1) D convey Blackacre to straw. (2) Straw conveys back to D and P as JT WROS. All 4 unities present.
Note: *NY by statute has dispensed w/ need for straw. OK for D to convey directly to self and P as JT WROS.*

Front 118

Concurrent Estates: How is a JT severed?

Back 118

SPAM, Sale, Partition, And Mortgage:
1. Severance and Sale. (1) JT can sell or tranfer her interest during her lifetime. Can even do so secretly. Disrupts the 4 unities. If more than two JTs in first place, JT remains intact as b/t other non transferring JTs.
(2) In equity, a JT's mere act of entering into a K for the sale of her share will sever JT as to that K'ing party's interest. This is b/c of doctrine of equitable conversion: "Equity regards as done that which ought to be done."
2. Severance and partition: A peaceful way to separate.
(1) By voluntary agreement,
(2) By partition in kind - court ordered physical division of property if in best interest and practicable (sprawl)
(3) By forced sale - best for building - sold and sale proceeds divided appropriately.
3. Severance and Mortgage
(1) Rule: One JT's execution of a mortgage or a lien on his or her share will sever the JTancy as to that now encumbered share only in the minority of states that follow the title theory of mortgages.
(2) By contrast, the majority of states follow the lien theory of mortgages, whereby a JT's execution of a mortgage on his or her interest will not sever the JTancy. ***NY follows the lien theory***

Front 119

Concurrent Estates: How is a TE created?

Back 119

Note: NY one of 21 states that recognizes the TE.
1. Can only be created in H and W w/ ROS. In the states that recognize TE, it arises presumptively in any conveyance to H and W unless clearly stated otherwise.

2. Very protected form of co-ownership. CAN'T TOUCH THIS.

a) Creditors: Cs of only 1 spouse can't touch the Tenancy.

***NY - one spouse may mortgage his interest and his Cs may enforce against taht interesty, but only as to the debtor spouse's share. the non-debtor spouse's rights, including the ROS, must not be compromised.***

b) Unilateral conveyance: Neither T, acting alone, can defeat the ROS by unilateral conveyance to 3rd party.

Front 120

Concurrent Estates: What are 3 features to remember about TCs?

Back 120

1. Each co-T owns an individual part, and each has a right to possess in the whole.

2. Each interest is descendible, devisable, and alienable.

+++There are no survival rights b/t TCs

Front 121

Concurrent Estates: Rights and duties of Co-Ts?

Back 121

1. Possession: Each co-T entitled to possess and enjoy the whole.

2. Rent from co-T in exclusive possession: Absent ouster, a co-T in exclusive possession is not liable to the others for rent.

3. Rent from 3rd parties: A co-T who leases all or part of the premises to a 3P must account to the others giving them their fair share of the rental income.

AP: absent ouster, one co-T in exclusive possession for the statutory AP period can't acquire title to the exclusion of the others. The hostility element is missing.

***Recent NY case - A co-T may acquire full title by AP if he is in exclusive possession for 20 continuous years. Implied ouster

5. Carrying costs: each Co-T responsible pro rata.

6. Repairs: co-T right to pro rata contribution for necessary repairs if notice given

7. Improvements: no right to contribution for improvements. At partition, the improver entitled/liable to a credit/minus depending on change in value due to

8. Waste: A co-T must not commit waste. [V P A]

9. Partition: A JT or TC has a right to bring action for partition.

Front 122

*Landlord/Tenant Law*: What's a Tenancy for years?

Back 122

AKA Estate for Years of Term of Years.
1. It's a lease for a fixed period of time could be 1 day, 2yrs, 50 yrs. When you know the termination date from the start, you have the tenancy for years.
2. Because a term of years states from the outset when it will terminate, no notice is needed to terminate.
3. A ToY greater than 1yr must be in writing to be enforceable. S/F issue.

Front 123

*Landlord/Tenant Law*: What's a Periodic Tenancy (PT)

Back 123

1. continues for successive intervals until L or T give proper notice of termination.

2. ****NY: notice must be given by L at least one month b/f expiration

2. PT can be created expressly or impliedly

NOTE: ***NY: L who elects to holdover a T creates an implied month-to-month PT, unless otherwise agreed***

Front 124

*Landlord/Tenant Law*: What's a Tenancy at Will?

Back 124

1. Both L and T must have right to terminate

2. If lease lets only L terminate, right implied for T.

3. ***NY: L must serve notice at least 30 days b/f decision to terminate

Front 125

*Landlord/Tenant Law*: What's a holdover?

Back 125

L may evict or create PT by accepting rent

T at sufferance - T wrongfully held over

Front 126

*Landlord/Tenant Law*: What are T's duties?

Back 126

1. T's liability to third parties.

2. T's duty to repair, doctrine of waste

- Voluntary: absolute liable

- Permissive: no liability

- Ameliorative: can't do

3. T's duty to pay rent.

Front 127

*Landlord/Tenant Law*: What is T's liability to 3Ps?

Back 127

Tort law. T responsible for keeping the premises in reasonably good repair. T liable for injuries sustained by 3Ps that T invited, even where L expressly promised to make all repairs.

Front 128

*Landlord/Tenant Law*: What is T's duty to repair?

Back 128

- T's duty to repair when the lease is silent:
a) The standard: maintenance. T must maintain premises and make ordinary repairs.

b) Fixtures:

- has the chattel become incorporated into structure? Cement

- If not incorp, what was annexor's intent?

--vendor-purchaser

--mortgagor-mortgagee

--L-T

- 3P claims

- Destruction:

-- Maj: T may terminate lease if premises destroyed w/o T's fault

--***NY: absent T's express undertaking to restore, if premises destroyed thru no fault of T, T may quit premises and surrender possession w/o any further duty to pay rent

Front 129

*Landlord/Tenant Law*: What is T's duty to pay rent?

Back 129

1. If T breaches this duty and is in possession of the premises: L's only options are to evict through the courts or continue relationship and sue for rent. If the L moves to evict, she is nonetheless entitled to rent from T until T, who is now a TS, vacates.
2. ***L MUST NOT engage in self help, such as changing the locks, forcible removing the T, or removing any of T's possessions. Self help flatly prohibited and is punishable civilly and criminally. NY: self help flatly prohibited, entitles T to treble damages.
3. If T breaches duty but is out of posession, remember SIR, Surrender, Ignore, Re-let:
a) Surrender: L treats T's abandonment as an implicit offer of surrender, which L accepts. T shows by words or actions that she wants to give up the lease. If the unexpired term is greater than one year, surrender must be in writing b/c S/F. Writing req surmountable if L sends T letter.
b) Ignore the abandonment and hold T responsible for the unpaid rent just as if T were still there. Only available in minority.
c) Re-let the premises on the wrongdoer T's behalf, and hold him or her liable for any deficiency. Majority: T must at least try to re-let. This is mitigation. NOTE: NY generally doesn't require L to mitigate damages when T abandons the premises.

Front 130

*Landlord/Tenant Law*: What are L's duties?

Back 130

1. Duty to deliver posession:

Maj Eng Rule: L must put T in actual possession

Min US rule: L must put T in legal possession

2. The implied covenant of quiet enjoyment. T has a right to quiet use and enjoyment. 2 ways to breach

a) Wrongful eviction

b) ***constructive eviction. Far more likely to see.***

SI N G:

SUBSTANTIAL INTERFERENCE (attributable to L's action or failure to act),

NOTICE (T must notify L of problem, and L must fail to fix it), and

GOODBYE T must vacate if not fixed.

3. ***The implied warranty of habitability*** Applies only to residential leases. IWH is not waivable, else unconscionable.

- Premises must be fit for basic human habitation. Bare living requirements must be met.
- When IWH breached: M 3R:

- Move,

- Repair and deduct,

- Reduce rent,

- Remain and sue.

4. No retaliatory eviction

Front 131

*Landlord/Tenant Law*: Assignment by L

Back 131

T's consent not required. Assignee L and T in privity of estate. Assignee L and T not in privity of K. Original L and T remain in privity of K. Assignee L liable to T on all covenants that run w/ the land. Original L remains liable on all covenants in the lease.

Front 132

*Landlord/Tenant Law*: Assignment by T

Back 132

L's consent may be required by lease.

1. Both original T and A are liable to L for rent

- Original T and L no longer in privity of estate, but remain in privity of K.

- Original T remains liable for rent and all other covenants in the lease.

- AT and L in privity of estate. AT and L not in privity of K.

2. ***NY: Unless express right given in lease, residential T may not assign w/o L's written consent

- L can unreasonably w/h consent and T's sole remedy is release from estate

Front 133

*Landlord/Tenant Law*: Sublease by T

Back 133

- Incomplete X-fer of balance of lease

- Only original T liable to L for rent

- Sub-T not in privity w/ L

- ***NY: Res building (4+ units)--consent to sublease can't be unreasonably withheld (unlike Assignment)

Front 134

*Landlord/Tenant Law*: What is L's liability in tort to T?

Back 134

CLAPS

1. Common areas

2. Latent defects - knowledge and failure to disclose

3 Assumption of repairs: L who voluntarily assumes repair must complete w/ reasonable care

4. Public use: knows T won't repair, so liable for any defects

5. Short term lease of furnished dwelling: L liable for defective condition that prox harms T

Front 135

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is an easement?

Back 135

An easement is 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. Unless grant specifically limits the interest, easement is presumed to be of perpetual duration.

Front 136

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the different types of easements?

Back 136

1. Affirmative easements: Most are this. P - I - N - G: Prescription, Implication, Necessity, Grant.
2. Negative Easements: Can be created only by writing signed by the grantor. Refers to something that another landowner might to do on own land that would restrict any of the following on the other's land: L - A - S - S, Light, Air, Support, and Streamwater.

Front 137

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by prescription created?

Back 137

C O A H: use that is Continuous, Open and notorious, Actual under a claim of right, that is Hostile for required statutory period. NY: the appropriate statutory period is 10 years.

Front 138

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by implication created?

Back 138

Implied from existing (prior) use: at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended. Elements: 1) The previous use was apparent and 2) the parties expected that the use would survive division b/c its use is reasonably necessary to the dominant land's use and enjoyment.

Front 139

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by necessity created?

Back 139

When the division of a tract deprives one lot of means of access out. Landlocked.

Front 140

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by grant created?

Back 140

By a writing signed by a grantor (the holder of the servient tenement), unless its duration is brief enough (1 year or less) to be outside a state's S/F. Grant must comply w/ all the formal requisites of deed.

Front 141

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the difference b/t an easement appurtenant and an easement in gross?

Back 141

1. An easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property. 2 parcels of land must be involved: The dominant tenement which derives the benefit, and the servient land which bears the burden. A grants B easement to use A's land to get to B's land. B has an easement appurtenant. B's land is the dominant tenement, and A's land is the servient tenemant. It takes two.
2. An easement is in gross if it 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. Ex: Right to place billboard on another building lot, swim in a pond, lay power lines on another's land.

Front 142

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the difference of transferability b/t an easement appurtenant and an easement in gross?

Back 142

1. An easement appurtenant passes automatically w/ the dominant tenement, regardless of whether it is even mentioned in the conveyance.
2. An easement in gross is not transferable unless it is for commercial purposes. A's easement in gross to swim in B's lake is not transferable, but Starkist's EiG to use B's lake to fish is transferable.

Front 143

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is the scope of an easement set?

Back 143

By terms of grant or condition that created it.

Front 144

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How may an easement be terminated?

Back 144

9 ways: END CRAMPS.
1. Estoppel, servient owner materially changes her position in reasonable reliance on easement holder's assurance that the easement will no longer be needed
2. Necessity, easement expires b/c the need ends (EXCEPT: an easement attributable to necessity that was nonetheless created by express grant won't end automatically once the necessity for it does),
3. Destruction of the servient land, other than throught the willful conduct of the servient owner,
4. Condemnation of the servient estate by eminent domain,
5. Release, a written release given by the easement holder to the servient owner,
6. Abandonment, where the easement holder must demonstrate by physical action the intent to never use the easement again (build a wall, non-use not enough),
7. Merger doctrine (AKA unity of ownership), when title to the dominant estate with the easement and title to the servient estate become vested in the same person (once this happens, the easement is extinguished. A later separation of title will not automatically revive the easement),
8. Prescription, servient owner may extinguish the easement by interfering with it in accordance with the elements of AP through COAH,
9. Stated condition occurs, where the original express easement grant specified when or under what conditions the easement would terminate .

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a license?

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License privileges its holder to go upon the land of another. But unlike an easement, a license is not an interest in land, it is merely a privilege revocable at the will of the licensor. Personal to the licensee, and therefore inalienable. Any attempt to transfer license results in revocation by operation of law. Note: a failed attempt to create an easement results in a license, e.g., grantor orally grants an easement for more than one year (neighbor A talking by fence to neighbor B grants easement to B, easement NG b/c S/F, but grantee still has a license (license not subject to S/F).

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: When does a license become irrevocable?

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2 circumstances:
1) Estoppel: If Lee invests substantial $ or labor in reliance on license, Lor estopped from revoking. License becomes an easement by estoppel, which lasts until holder receives sufficient benefit to reimburse him for expenditures.
2) License coupled w/ interest: irrevocable as long as interest lasts, e.g., vendee of a chattel may enter seller's land to remove chattel, FI holder may enter and inspect land for waste.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a profit?

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Entitle the holder of the benefit to take some resources (soil, timber, fish) form the servient estate. Implied in every profit is an easement entitling benefit holder to enter servient estate and take resources. Profit shares all rules of easements. Profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a real covenant?

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A real covenant is a covenant that runs with the land at law. RC, normally found in a deed, is a written promise to do something on the land (build a fence) or a promise not to do something on the land (not to build a multi-family dwelling). RCs run w/ land at law, which means that subseqent owners may enforce or be burdened by the covenants.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How to know whether to construe the given promise as a covenant or as an equitable servitude?

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On the basis of the remedy that ∏seeks. When ∏ seeks $ damages, construe as a covenant (at law). When ∏ seeks injunction, construe as an ES (enjoin = equity).

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What parlance is used to distinguish the 2 tracts?

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One tract is burdened by the covenant, and the other tract is benefitted by it. If A promises B that A will not build for commercial purposes on A's property, A's parcel is burdened by the promise, and B's parcel is benefited by it.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the requirements for the burden of an RC to run?

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If the following 6 reqs met, any of the promisor's successors in interest (SIIs) to the burdened estate will be bound by the covenant as if she had expressly agreed to it herself [always analyze the burden side first, law makes it harder for the burden to run than for the benefit to run]:
1. Writing - original promise b/t Por and Pee must have been in writing.
2. Intent - covenanting parties must have intended that covenantor's SIIs would be bound by terms of Covenant. Intent may be inferred from circs surrounding the creation of the RC, but is usually found in language of conveyance itself.
3. Notice - Under modern recording acts, to be bound by RC, a subsequent PV must have had actual, inquiry, or record notice of the arrangement at the time of the purchase [**b/c notice req arises under rec acts, it will only protect Ps for V**].
4. Horizontal Privity - at time Por entered into covenant w/ Pee, the 2 must have shared some interest in the land independent of the covenant (e.g., Gor-Gee, L-T, Mee-Mor). ***Horizontal privity concerns only the original parties. Even if SIIs are trying to enforce covenant, you must look only to the original covenanting parties to determine horizontal privity***
5. Vertical privity - To be bound, SII to the Cor must hold the entire durational interest held by the Cor at the time he made C [A and A1 must have some non-hostile nexus to each other, A1 must have become SII through K, devise, descent. Only time VP will be absent is if A1 acquired her interest through AP]
6. Touch and Concern - The promise must affect the parties' legal relations as landowners, and not simply as members of the public community.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the requirements for the benefit of an RC to run?

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If the following 4 reqs met, the promisee's SIIs may enforce the covenant:
1. Writing - original promise b/t Por and Pee must have been in writing.
2. Intent - Covenanting parties must have intended that the covenantee's SIIs would be able to enforce the covenant.
3. Vertical privity - the benefits of a covenant run to the assignees of the original estate or any lesser estate, i.e., any succeeding possessory estate may enforce the benefit. ***Horizontal privity not required for the benefit to run. Thus, where HP is lacking, Pee's SIIs can enforce the covenant against the Por, but not against Por's SIIs***
4. T&C - the benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee and her successors in their use and enjoyment of the land.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are some specific examples involving real covenants that run with the land?

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Negative Cs T&C land if they restrict holder of the servient estate in his use of that parcel of land, i.e., covenant not to compete. Affirmative Cs T&C land if they require holder of servient estate to do something, which increases his obligation in connection w/ his enjoyment of the land, i.e., promise to homeowner's association fees. Racially restrictive covenants are unenforceable.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What remedies are available for breach of real covenant?

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Damages only. See above question RE: difference in real covenant and equitable servitude.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How may a real covenant be terminated?

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As w/ all other nonpossessory interests, a covenant may be terminated by: (i) a written release, (ii) the merger of the benefited and burdened estates, or (iii) the condemnation of the burdened property.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is an equitable servitude?

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ES is a covenant that equity will enforce against the assignees of the burdened land who have notice of the covenant, regardless of whether it runs w/ the land or at law. Usual remedy is an injunction.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an ES created?

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Remember WITNES:
1. Writing - generally but not always required that original promise was in writing. May arise by implication from common scheme of development of a residential subdivision.
2. Intent - Original parties intended that promise would be enforceable by and against assignees (for both burden and benefit).
3. T&C - Promise affects parties as landowners, of and pertaining to Blackacre (for both burden and benefit).
4. Notice - Assignees of burdened land had notice of the promise (for burden only).
NOTE: PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the implied equitable servitude?

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The general/common scheme doctrine. Landowner A subdivides land into 50 lots, and sells most of the lots (in example, 90%) through deeds that contain covenants restricting use to residential purposes. A then sells one of the remaining lots to a commercial entity, B, by deed containing no such covenant. B now seeks to build a convenience store on his lot. Can he be enjoined from doing so? Yes, if the 2 elements of the general/common scheme doctrine apply. Under this doctrine, court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant. It's an implied ES. Elements:
1. When the sales began, subdivider A had a general scheme of residential development, which included ∆'s lot.
2. ∆ lotholder B had notice of that promise contained in the prior deeds. Three forms of notice imputed to ∆, A I R:
A: Actual notice, meaning D had literal knowledge of promises in prior deeds.
I: Inquiry notice, meaning neighborhood seems to conform to the common restriction. Lay of the land.
R: Record notice, meaning the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents. I and R are forms of constructive notice. NOTE: W/ respect to record notice, courts are split. Some take the view that subsequent buyer is on record notice of contents of prior deeds transferred to others by a common Gor. Others take the better view that subsequent buyer doesn't have record notice of the contents of those prior deeds transferred by common Gor. NY = latter view.

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Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are equitable defenses to the enforcement of an ES?

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1. *Changed conditions: changed circumstances alleged by the party seeking release from the terms of an ES must be so pervasive that the entire area/subdivision has changed. Limited or piecemeal change is never enough.*
2. Unclean hands
3. Benefited party acquiesced in a violation of the servitude by one burdened party.
4. Estoppel: A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned.
5. Laches.