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310 Cards in this Set
- Front
- Back
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Name the 4 Present Estates
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1) The Fee Simple Absolute
2) The Fee Tail 3) The Defeasible Fees (3) 4) the Life Estate |
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With respect to each of the 4 Present Estates, what 3 things should you know?
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1) What language will create the estate
2) What are the estate's distinguishing characteristics? (devisable, descendible, alienable) 3) Which future interests, if any, is the estate capable of? |
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Define Devisable, descendible, and alienable
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Devisable: can pass by will
Descendible: will pass by the statutes of intestacy alienable: transferable during the holder's lifetime |
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What language creates a fee simple absolute?
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"To A" or "To A and his heirs" (not needed at common law today)
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A fee simple absolute is a
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1)absolute ownership of potentially infinate duration.
2)It is freely devisable, descendible and alienable 3)There is NO accompanying future interest |
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How is a fee tail created?
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"To A and the heirs of his body"
- Virtually abolished in NY This language becomes a fee simple absolute |
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Name the 3 Defeasible Fees and their NY labels
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1) The Fee Simple Determinable (Fee On Limitation)
2) The Fee Simple Subject to Condition Precedent (Fee on Condition) 3)Fee Simple Subject to Executory LImitation |
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What language creates a Fee Simple Determinable?
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"To A for so long as . . . " "To A during . . ." "To A until . . ."
Grantor MUST use clear durational language |
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If the stated condition is violated in a Fee Simple Determinable, then
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forefiture is automatic
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The future interest created by a Fee Simple Determinable is
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a possibility of reverter in the grantor
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How is a Fee Simple Subject to Condition Subsequent created?
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"To A, but if X event occurs, grantor reserves the right to reenter and retake."
Grantor must use clear durational language AND must carve out the right to re-enter |
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When a Fee Simple Subject to Condition Subsequent is created, and the condition is violated
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the estate is not automatically terminated, but it can be cut short at the grantor's option
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The accompanying future interest in a Fee Simple Subject to Condition Precedent is
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The right of re-entry synonymous with the power of termination.
In NY it is called the right of re-acquisition |
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How is the Fee Simple Subject to Executory Limitation created?
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"To A, but if X event occurs, then to B"
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Distinguish the Fee Simple Determinable from the Fee Simple Subject to Executory Limitation
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If the condition is broken, the estate is automatically forefitted in favor of someone other than the grantor in the Fee Simple Subject to Executory Interest
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What is the accompanying future interest created by the Fee Simple Subject to Executory Limitation?
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The shifting executory interest
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As Concern the dfeasible fees, 2 Important rules of construction?
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1) Words of mere desire, hope or intention are insufficient to create a defeasible fee. Courts disfavor restrictions on the free use of land. Thus, 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 a reasonable, time limited purpose |
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A life Estate is created and defined
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"To A for Life" This is an estate that must be measured in explicit lifetime terms, and NEVER in terms of years
A has a life estate A is known as the life tenant O has a reversion, meaning that at the end of A's lifetime, the estate reverts back to O or O's heirs |
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The life estate pur autre vie is
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a life estate measured by a life other than the grantees, "To A for the life of B"
A has a life estate pur autre vie O has a reversion B has nothing |
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When a life estate is sold by the life tenant, the purchaser has
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A life estate pur autre vie (you can't convey more than you've got)
O has a reversion at the end of the origional life tenant's life |
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A life tenant is entitled to
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all ordinary uses and profit from the land
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the life tenant must not
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commit waste
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Three species of waste:
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1) Voluntary or affirmative waste: overt conduct that causes a drop in value, willful distruction
2) Permissive waste or neglect: land is allowed to fall into disrepair or the life tenant fails to protect the land 3) Ameliorative waste: the life tenant must not engage in acts that will enhance the property's value unless all future interest holders anre known and consent IN NY BY STATUTE, THE LIFE TENANT MAY MAKE IMPROVEMENTS UNLESS THE REMAINDERMEN OBJECT |
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Voluntary Waste and Natural Resources
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the life tenant must not consume or exploit natural resources on the property (timber, oil or minerals) unless one of four exceptions applies:
1) Prior Use 2) Repairs 3) Grant 4) Exploitation |
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Waste and Prior use
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Prior to the grant, the land was used for exploitation. Here, teh Life Tenant may continue to exploit UNLESS otherwise agreed
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The Open Mines Doctrine
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If mining was done on the land before the life estate began, the life tenant may continue to mine but limited to the mines already open. Thus the life tenant must not open any new mines
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Waste and Repairs
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the life tenant may consume natural resources for reasonable repairs and maintenance
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The reversion
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the future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or a fee simple subject to condition subsequent
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Waste and grant
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The life tenant may exploit if granted that right
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Name the three species of vested remainder
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1) the indefeasibly vested remainder
2) the vested remainder subject to complete defeasance/ the vested remainder subject to total divestment 3) the vested remainder subject to open |
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Name the two species of executory interest
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1) the shifting executory interest
2) the springing executory interest |
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Our three tasks in assessing future interests in transferees
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1) we must distinguish vested remainders (3 kinds), from contingent remainders
2) We must distinguish the three kinds of vested remainders from each other and 3) we must distingusih all remainders from executory interests |
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A remainder is
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a future interest created in a grantee that is capable of becoming possessory unpon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
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Remanderman always accompanies a
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preceding estate of known, fixed duration, usually a life estate or a term of years
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Waste and Exploitation
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if the land is suitable only to exploit, the land tenant may do so
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Permissive waste and the obligation to repair
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the lifetenant must simply maintain the premises in reasonably good repair
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A class is closed when
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it's maximum membership has been set swo that persons born later are shut out
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How do you know when a given class has closed?
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Apply the CL rule of convenience: The class closes whenever any member can demand possession.
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The Womb rule
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A child in the womb at the time a member of the class can take can share in the class gift
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Shifting executory interest
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Always follows a defeasible fee and cuts short someone other than the grantor
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What is an executory interest
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It is a future interest created in a third party transferee, 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)
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Permissive waste and the obligation to pay all ordinary taxes
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The life tenant is obligated to pay all ordinary taxes onthe land, to the extent of income or profits from the land. If there is no income or profit, the lifetenant is required to pay all ordinary taxes to the extent of the premises fair rental value
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Ameliorative waste
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The life tenant must not engage in acts that will enhance the property's value unless
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Springing executory interest
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Cuts short O the grantor
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NY has abolished the distinction between executory interests and contingent remainders. Instead contingent remainders and executory interests are called
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remainders subject to a condition precedent
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The life estate's accompanying future interest
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If held by O, the granter it is caled a reversion.
If held by a third party, it is a remainder |
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Future Interests (6)
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Created in the Grantor:
1) The Possibility of Reverter 2) The Right of Entry, or the Power of Termination 3) The Reversion Future Interests in Transferees 4) A vested Remainder (3) 5) A contingent remainder 6) An Executory Interest (2) |
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The Possibility of Reverter
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Grantor's future interest accompanying the fee simple determinable
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The Right of Entry, Power of Termination
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Grantor's Future Interest accompanying the fee simple subject to condition subsequent
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remainderman never follows a
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defeasible fee, but waits for the proceeding estate to finish its natural course
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Remainderman cannot cut short or divest a
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prior transferee. If your present estate is a defeasible fee, your future interest is NOt a remainder, but an executory interest
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Remainders are either
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vested or contingent
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A remainder is vested if it is both
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created in an ascertained person and is not subject to any condition precedent
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A remainder is contingent if
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it is created in an unascertained person or is subject to a condition precedent or both
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IN NY, any future interest in a transferee that is subject to a condition precedent is called a
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remainder subject to a condition precedent
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The Rule of Destructibility of Contingent Remainders
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At CL, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
Today, the Destructibility rule has been abolished. The rule of destructibility of contingent remainders has been abolished in NY |
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The Rule in Shelley's Case
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AT CL, the rule would apploy only in one setting: O conveys "To A for life, then on A's death to A's heirs." A is alive. Interests merged into a fee simple absolute.
Today the rule in Shelley's Case has been virtually abolished. Thus, A has a life estate, A's unknown heirs have a contingent remainder, O has a reversion since A could die without heirs The Rule in Shelley's Case has been abolished in NY |
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The Doctrine of Worthier Title/ The Rule against a remainder in grantor's heirs
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Abolished in NY, but still viable in most states. Applies when O, who is alive, tries to create a future interest in his heirs (a person who is alive has no heirs). Instead O has a remainder
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The indefeasibly vested remainder
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The holder of this remainder is certain to acquire an estate in the future with no conditions attached
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"To A for life, remainder to B." A is alive. B predeceases A.
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B's future interest passes by will or intesticy
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A vested remainder subject to complete defeasance/vested remainder subject to total divestment.
In NYa "remainder vested subject to complete defeasance" |
A remainderman exists, but right to possession culd be cut short because of a condition subsequent
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The vested remainder submect to open
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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 because additional takers can still join in |
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A class is open if
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it is possible for others to enter
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State the Four Step Technique for assessing Potential RAP Problems
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1) Determine which 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, with certainty, within 21 years of the death of our measuring life, if our future interest holders can or cannot take? |
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The Rule Against Perpetuities potentially applies ONLY to
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contingent remainders, executory interests, and certain vested remainders subject to open.
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The Rule Against Perpetuities does NOT apply to
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any future interest in O the grantor, indefeasibly vested remainders, vested remainders subject to complete defeasance
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How do you choose a measuring life?
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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.
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"Bad to One, Bad as to All."
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To be valid, it must be shown that the condition precedent to every class member's taking will occur within the perpetuities period. If it is possible that a disposition might vest too remotely with respect to any member of the class, the entire class is void.
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If we will know, with certainty within 21 years of the death of our measuring life if our future interest holders can or cannot take
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the conveyance is good
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If we will not know with certainty, within 21 years of the death of our measuring life, if our future interest holders can or cannot take
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the future interest is void
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State Two bright line rules of CL RAP
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1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the CL RAP
2)Many shifting executory interests violate the RAO. An executory interest with no limit on the time within which it must vest vioates the RAP. |
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Charity to Charity Exception
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A gift from one charity to another does not violate the RAP
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The fertile Octogenarial Rule
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presumes that a person is fertile no matter his or her age.
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The cy pres doctrine
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"as near as possible"
Applies to both the wait and see and USRAP If a given disposition violates the rule, a court may reform it in a way that most closely matches grantor's intent while complying with the RAP |
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The "wait and see" or "second look" doctrine
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Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist at the end of the measuring life.
This eliminates the "what if" or "anything is possible" line of inquiry |
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The reduction of any offensive age contingency to 21 years
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applies to both the wait and see and the USRAP
If the disposition was over 21, reduce to 21 |
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The Uniform Statutory Rule Against Perpetuities (USRAP)
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Codifies the common law RAP and, in addition provides for an alternative, 90 year vesting period.
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NY Perpetuities Reform Statute
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NY applies the CL RAP and has rejected wait and see and cy pres except for charitable trusts and powers of appointment
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Under the NY perpetuities reform statute, where an interest would be invalid because it is made to depend on any person's having to attain an age in excess of 21 years
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the age contingency is reduced to 21 years
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The reduction of any offensive age contingency to 21 years
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applies to both the wait and see and the USRAP
If the disposition was over 21, reduce to 21 |
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The common law fertile octogenarian principle is modified by the NY perpetuities reform statute, which presumes that
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a woman over the age of 55 cannot have a child. The possibility that the person may have a child by adoption is disregarded
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State the Rule Against Perpetuities
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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
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NY suspension rule
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The rule against suspension of the absolute power of alienation applies to the CL RAP to restrictions to 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 |
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For a conveyance to be valid under the suspension rule
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there must be persons in being who could join together in a conveyance of the full fee simple title within lives in being plus 21 years
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Name the 3 forms of concurrent estates
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1- The Joint tenancy
2- The tenancy by the entirety 3- The Tenancy in common |
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The Joint Tenancy is defined as
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2 or more own with the right of survivorship
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Distinguishing Characteristics of the Joint Tenancy
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`- The rights of survivorship- when one JT dies, his share passes automatically to the surviving JT
2- A JT's interest is alienable, not devisable nor descendable |
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How is a Joint Tenancy Created?
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1- The 4 unities:
Time: at the same time Title: by the same title/instrument Interest: with identical shares Possession: the right to possess the whole 2- Grantor must clearly express the right of survivorship. 3- Use of a straw- if O wants to create a JT with T, he must convey to the straw, who then conveys it back to O and T to meet the four unities |
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The use of the straw in NY
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By statute, NY has dispensed with the need for a straw. It is ok for O to convey to himself and T as JT with right of survivorship
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How is a Joint Tenancy Severed?
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Sale
Partition Mortgage |
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How does a sale impact a Joint Tenancy?
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A JT can sell or transfer her interest during her lifetime- even secretly without the other's knowledge or consent
One joint tenant's sale severs the joint tenancy as to the seller's interest because it disrupts the 4 unities Thus, buyer is a tenant in common |
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What happens if there are more than 2 Joint Tenants and one sells?
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The Joint Tenancy remains in tact as between the non-transferring joint tenants
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In equity, a joint tenant's mere act of entering into a contract for the sale of her share will
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sever the joint tenancy because of the doctrine of equitable conversion ***
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Equitable conversion provides that
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equity regards as done that which ought to be done
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Name the three types of partition
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voluntary agreement
Partition in kind Forced Sale |
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a voluntary agreement is
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a peaceful way to terminate
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A patrician in kind is a
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court action for physical division if in the best interest of all
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a Forced sale
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property is sold and the proceeds divided proportionately
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Title theory of mortgages
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One joint tenant's execution of a mortgage or lien on his or her share will sever the joint tenancy as to that now encumbered share (minority)
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Lien theory of mortgages
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a joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy Majority
NY follows this theory |
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Tenancy by the entirety is created
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between married partners who share the right of survivorship
In states to recognize the tenancy by the entirety, it arises presumptively to married partners unless stated otherwise Recognized in NY |
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Effect of creditors on the tenancy by the entirety
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Created within the bonds of marriage, creditors of only one spouse cannot touch a tenancy by the entirety
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How does NY handle creditors on the tenancy by the entirety?
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One spouse may mortgage his interest and his creditors may enforce against that interest, BUT ONLY as to the debtor spouse's share. Further, the non-debtor spouse's rights, including the right of survivorship must not be compromised
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Unilateral conveyance of a tenancy by the entirety
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Neither tenant, acting alone, can defeat the right of survivorship by unilateral transfer to a third party
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Three features of the tenancy in common
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1- each co-tenant owns an individual part and each has a right to possess the whole
2- each interest is dividable, descentable, and alienable. There are no survivorship rights between tenants in common 3- the presumption favors the tenancy in common |
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Possession rights of co-tenants
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Possession: each co-tenant is entitled to possess the whole.
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Wrongful Ouster
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If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part
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Rent and the co-tenancy (each co-tenant and third parties)
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Rent from co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to the other for rent
Rent from third parties: a co-tenant who leases all or part of the premises must account to his co-tenants, providing them their fair share of the rental income |
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Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period
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cannot acquire title to the exclusion of the others.
The hostility element of adverse possession is absent HOWEVER, a recent CoA case determined that a co-tenant may acquire full title by adverse possession if he is in exclusiive possession for 20 continuous years-a theory of implied ouster |
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Carrying costs between co-tenants
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Each co-tenant is responsible for his or her fair share of carrying costs such as taxes, mortgage interest payments, etc based upon his undivided share
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Repairs and co-tenancy
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the repairing co-tenant enjoys a right to contribution for necessary and reasonable repairs, provided that she has the need
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Improvements during the co-tenancty
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there is no right to contribution for improvements
However, at partition, the improving co-0tenant is entitled to a credit equal to any increase in value caused by her efforts. Attendantly , at partition, the so-called "improver" bears full liability for drop in value caused by the efforts. A co-tenant can bring a waste action during the life of the co-tenance |
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A co-tenant must nto commit
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waste
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A joint tenant or tenant in common has a right to bring an action for
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partition
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The Four Leasehold or Nonfreehold Estates
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The tenancy for years
The Periodic Tenancy The Tenancy at Will The Tenancy at Sufferance |
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The Tenancy for Years, Estate for Years or the Term of Years is a lease for
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a fixed period of time- as short as one day
When you know the termination date from the start you have the tenancy for years |
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Because a term of years states from the outset when it will terminate:
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no notice is needed to terminate
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A term of years greater than one year
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must be in writing to be enforceable because of the statute of frauds
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The Periodic Tenancy is a lease which
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continues for successive intervals until landlord or tenant give proper notice to terminate
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The peridoic tenancy can be created
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expressly "L conveys to T from week to week, or year to year, or month to month . . ."
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The periodic tenancy can also arise by implication in any one of 3 ways:
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1- Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals
2- An oral term of years in violation of the statute of frauds creates an implied period tenancy measured by the way rent is tendered 3- Th holdover: in a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease |
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In NY, the landlord who elects to holdover a tenant creates an
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implied month-to-month periodic tenancy unless otherwise agreed
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How to terminate a periodic tenancy
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Notice, usually written must be given
At Common Law the notice must at least be equal to the length of the period itself unless otherwise agreed. However, if the tenancy is from year-to-year or greater, only 6 months notice |
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Freedom of contract
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by private agreement, the parties may lengthen or shorten these common law prescribed notice provisions
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Te periodic tenancy must end at the
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conclusion of a natural lease period
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The Tenancy at will is a tenancy for
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no fixed duration.
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Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court
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to treat as an implied periodic tenancy
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The tenancy at will may be terminated by
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either party at anytime BUT a reasonable demand to vacate is usually required
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IN NY the landlord terminating a tenancy at will must give
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a minimum of 30 days written notice of termination
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The tenancy at sufferance is created when
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T has wrongfully held over past the expiration of the lease. We give this worngdoer a leasehold estate to permit L to recover rent
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Te tenancy at sufferance lasts
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only until L either evicts T or elects to hold T to a new tenancy
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In NY, landlord's acceptance of rent subsequent to the expiration of the term will create a
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an implied month-to-month periodic tenancy unless otherwise agreed
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Tenants duties:
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1- To third parties
2- To repair 3- To pay rent |
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T's liability to third parties
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A matter of Tort Law:
T is responsible for keeping the premises in good repair T is liable for injuries sustained by third parties T invited, even where L expressly promised to make all repairs |
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T's duty to repair when the lease is silent
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T must maintain the premises and make ordinary repairs
T must not commit waste |
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The law of fixtures
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Walks with waste doctrine
When a tenant removes a fixture he commits voluntary waste A fixture is a once moveable chattel that, by virtue of its annexation to the realty objectively shows the intent to permenantly improve the realty T must not remove a fixture no matter that she installed it. Fixtures pass with ownership of the land |
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How to tell when a tenant installation qualifies as a fixture
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Express agreement controls: any agreement between l and T on point is binding
In the absence of agreement, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture, the fixture stays put. |
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T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease
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At CL, historically, T was liable for any loss to the premises including loss due to force of nature
Today the majority view: T may terminate the lease if the premises are destroyed without T's fault IN NY, absent tenant's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of tenant, tenant may quit the premises and surrender possession without any further duty to pay rent |
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T breaches the duty to pay rent and is in possession of the premises
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The Landlord's only options are to evict through the courts or continue the relationship and sue for rent due. If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance, vacates
Landlord MUST NOT engage in self-help such as changing the locks, forcibly removing the tenant, removing any of T's possessions. |
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Self help is
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flatly outlawed and is punishable civally and criminally.
In NY, self-help is flatly prohibited and entitles tenant to treble damages |
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Tenant breaches the duty to pay rent and is out of possession (wrongfully vacates with time left on lease)
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1- Surrender: L could choose to treat 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 to satisfy the Statute of Frauds
2= Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there. This option is available only in a minority of states 3- Re-let the premises on the wrongdoer tenant's behalf an dhold him or her liable for any deficiency |
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Majority rule on breach of duty to rent and out of possession
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L must at least try to re-let: the mitigation principle
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NY's rule on abandonment
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Does not require LL to mitigate damanges
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Landlord's Duties:
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1- duty to deliver possession
2- the implied covenant of quiet enjoyment 3- the implied warranty of hability 4- retalitory eviction |
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Landlord's duty to deliver possession
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the majority rule requires that L put T in physical possession of the premises. thus, if at the start of T's lease a prior holdover T is still in possession, L has breached and the new T get's damages
The minority rule: does not oblige L to put T in physical possession, Requires L to give legal possession |
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The implied covenant of quiet enjoyment
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Applies to BOTH residential and commercial leases. T has a right to quiet use and enjoyment of the premises without interference from L
Breach by actual wrongful eviction Breach by constructive eviction |
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Breach by actual wrongful eviction occurs
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When L wrongfull evicts T or excludes T from the premises
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Breach by constructive eviction
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1- Substantial Interference: due to L's actions or failure to act
2- Notice: T must notify L of the problem and L must fail to act meaningfully 3- T must vacate w/in a reasonable time after L fails to fix the problem (SING= Substantial Interfernece Notice Goodbye) |
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Is the landlord liable for acts of other tenants?
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Generally, No
2 exceptions 1- L must not permit a nuisance on sight 2- L must control common areas |
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The implied warranty of hability
|
Applies only to residential leases
Non-waivable The standard: premises must be fit for basic human habitation, bare living requirements |
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The appropriate standard of implied warranty of hability may be supplied by
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local housing code or case law
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T's entitlements when the implied warranty of hability is breached:
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Move out and end the lease (but doesn't have to)
Repair and deduct, allowable by statute in a growing number of jurisdictions. T may make the reasonable repairs and deduct their cost from future rent Reduce Rent, or withhold all rent until the court determines fair rental value. Typically T must place withheld rent into an escrow account to show good faith Remain in possession, pay rent and affirmatively seek money damages |
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Retailtory eviction
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If T lawfully reports L for housing code violations, L is barred from penalizing T, by for example raising rent or endign the lease or harrassing T or taking any other reprisals
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In the absence of some prohibition in the lease, a T may freely transfer his or her interest
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in whole, accomplishing an assignment or in part, accomplishing a sub-lease
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In the lease, L can prohibit T from assigning or subletting without L's
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prior written approval.
However, once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right |
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IN NY, unless the lease provides otherwise assignemnt or sublease
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a residential T may not assign without L's written consent. L can unreasonably withhold consent to assign, and T's sole remedy is to seek release from the lease. By contrast, in NY, a T in a residential building having four or more units has the right to sublease subject to L's written consent. Consent to sublease cannot be unreasonably withheld. Unreasonably withheld consent is deemed consent.
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The assignment
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Transfer the entire remaining term on lease
L and T2 are in privity of estate, each are liable to each other for all of the covenants in the original lease that "run with the land" L and T2 are NOT in privity of contract unless T2 expressly assumed all promises in the original lease L and T1 are no longer in privity of estate, however they remain in privity of contract. Thus L and T1 are secondarily liable to each other |
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The sublease
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L and sublessee are in neither privity of estate nor privity of contract. Share no nexus
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Landlord's Tort Liability- the common law of caveat lessee
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Tenant beware. In tort, L is under no duty to make the premises safe
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5 exceptions to the common law caveat lessee
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1- Common Areas- L must maintain all
2- Latent defects rule: L must warn T of hidden defects that L knows about or should know about *a duty to warn, not a duty to repair* 3- Assumption of repairs: A L who volunteers to make repairs must complete them with reasonable care 4- Public use rule: L who leases public spaceand who should know because of the nature of the defect and the length of the lease, that T will not repair is liable for any defects on the premises (convention hall) 5- Short term lease of furnished dwelling: L is liable for any defects on site (CLAPS) |
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Servitudes
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1- Affirmative Easements
2- Negative Easements 3- Real Covenants 4- Equitable Servitudes 5- Reciprocal Negative Servitudes |
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What do we need to know about servitudes?
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1- Method of creation
2- Parties Bound 3- Remedy |
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Easements are defined as
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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
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Distinguish between affirmative and negative easements
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Most easements are affirmative: the right to do something on the servient land
Negative easement entitles it's holder to prevent the servient landowner from doing something that would otherwise be permissible. |
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Easements defined
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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
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Affirmative easement
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the right to do something on serviant land
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Negative easement
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entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
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4 categories of negative easements
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Light
Air Support Stream water from an artificial flow Senic view (minority |
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Negative easements can only be created
|
expressly, by writing signed by the grantor.
There is no natural or automatic right to a negative easement |
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The easement is appurtenant when
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it benefits its holder in his physical use or enjoyment of his property
It takes 2 parcels! |
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A dominant tenement
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derives the benefit of an easement appurtenant
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A servient tenement
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bares the burden of the easement appurtenant
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The easement is in gross if it
|
confers upon its holder only some personal or pecuinary advantage that is not related to his use or enjoyment of his land.
Servient land is burdened, but there is no benefited or dominant tenement (billboard, swim, lay powerlines) |
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The appurtenant easement passes
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automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance
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If the purchaser of the servient estate is a bonafide purchaser without notice of the easement
|
the burden of the easement does not pass with the servient estate
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transferring an easement in gross
|
an easement in gross is not transferable unless it is for comercial purposes
(easement to swim in lake- personal, not transferrable, Starkist to fish for company, transferable because it is commercial) |
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Creation of an affirmative easement
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(PING)
Prescription Implication Necessity Grant |
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Easement by grant
|
for an easement to endure for more than one year, it must be in a writing that complies with the formal elements of a deed.
This is because of the statute of frauds. The writing to evidence the easement is called a deed of easement |
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easement by implication (aka the easement implied from existing use)
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Previous was apparent AND
The parties expected that it would survive division because it is reasonably necessary to the dominant land's use and enjoyment |
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easement by necessity
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landlocked setting.
An easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except part of his remaining land |
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easement by prescription
|
satisfies the elements of adverse possession:
continuous use for the statutory period Open and notorious Actual use Hostile without consent |
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The scope of an easement is set by
|
the terms of the grant or the conditions that created it
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Termination of an easement (8)
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(END CRAMP)
Estoppel Necessity Destruction Condemnation Release Abandonment Merger Prescription |
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Termination by Estoppel
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the servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will no longer be enforced
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Termination of easement by necessity
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Easements created by necessity expire as soon as the need ends.
However, if the easement attributable to necessity was nonetheless created by express grant, it doesn't end when the need ends |
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Destruction of the servient land, other than through the willful conduct of the servient owner
|
ends the easement
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Condemnation of the servient estate
|
terminates the easement by eminent domain
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A written release given by the easement holder to the servient owner
|
terminates the easement
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Abandonment terminates the easement when
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the easement holder demonstrates the intent to never use the easement again by physical action
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Merger doctrine or unity of ownership
|
the easement is extinguished when title to the easement and title to the servient land become vested in the same person
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If complete unity of title is achieved, the easement is
|
Extinguished. Even though there may be later separation of title, the easement is not automatically revived.
To recreate the easement, it all starts from scratch |
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The servient owner may extinguish the easement by
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interfering with it in accordance with the elements of adverse possession
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The License defined
|
A mere privilege to enter another's land for some delineated purpose
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Licenses are not subject to
|
the statute of frauds. Thus, you do not need a writing to create a license
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How are licenses revoked?
|
Licenses are freely revocable, at the will of the licensor, unless estoppel applies to bar revocation
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License case: ticket
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Tickets create a freely revocable license
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License case: neighbors talking by the fence
|
does not create an easement byt a freely revocable license
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Estoppel will apply to bar revocation only when the licensee has
|
invested money or labor or both in reasonable reliance on the license's continuation
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The Profit entitles its holder to
|
enter the servient land and take from it the soil or some substance of the soil: minerals, timber or oil
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The profit shares
|
all the rules of easements
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The covenant defined
|
The covenant is a promise to do or not do somethign related to the land. It is unlike the easement because it is not the grant of a property interest, but rather a contractual limitation or promise regarding land
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Covenants can be negative or restrictive covenants
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The restrictive covenant is a promise to refrain from doing something related to land (I promise not to build for commercial purposes on my land)
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Covenants can be affirmative
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The affirmative covenant is a promise to do something related to the land (to maintain our common fence, to tend to our common garden)
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How to know whether to construe the given promise as a covenant or as an equitable servitude
|
on teh basis of the remedy your plaintiff seeks:
Money- construe as a covenant injunction- construe as an equitable servitude |
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In covenant parlance, one tract of land is
|
burdened by the promise and another is benefited
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When will the covenant run with the land?
|
When it is capable of binding successors
1- Does the burden of A's promise to B run from A to A-1? Do the burden side first b/c it is harder for burdens to run than benefits 2- Does the benefit of A's promise to B run from B to B-1? |
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The elements necessary for the burden to run
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1- Writing: the original promise
2- Intent: the original parties intended that the covenant would run, courts are generous in finding the requisite intent 3- Touch and concern the land: the promise must affect the parties' legal relations as landowners |
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Covenants to pay money to be used in connection with the land (homeowners' association fees) and covenants not to compete
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do touch and concern the land
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Horizontal and vertical privity
|
both are needed for the burden to run
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Horizontal privity refers to
|
the nexus between the original parties
It requires that they be in succession of estate, meaning that they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship. Horizontal privity is hard ti establish. Its likely absence is the reason the burden wont run |
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Vertical privity refers to
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the nexus between A and A-1.
It simply requires some non-hostile nexus, such as contract, devise, descent The only time that vertical privity will be absent is if the interest was acquired through adverse possession |
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For the covenant to run with the land notice requires
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A-1 had some form of notice of the promise when she took
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For the benefit of A's promise to B to run from B to B-1, does B-1 have standing?
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Writing
Intent Touch and Concern Vertical privity |
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Equitable Servitudes defined
|
A promise that equity will enforce against successors. it is accompanied by injunctive relief
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To create an equitable servitude that will bind successors
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1- writing: generally, but not always, the original promise was in writing
2- Intent: the original parties intended that the promise would be enforceable by and against assignees 3- touch and concern: promise affects the parties as land owners 4- Notice- the assignees of the burdened land had notice of the promise PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS |
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The implied equitable servitude - general or common scheme doctrine
|
the court will imply a reciprocal negative servitude to hold teh unrestricted lot holder to the restrictive covenant
1- when the sales began, the subdivider had a general scheme of residental development which included defendants lot 2- the defendant lotholder had notice of that promise contained in prior deeds |
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there are three forms of notice potentially imputed to defendant
|
Actual notice- D had literal knowledge of the promises in the earlier deeds
Inquiry notice: neighborhood conforms to the common restriction , the lay of the land Record notice, the form of notice sometimes imputed to buyers on the basis of publically recorded documents |
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With respect to record notice, the courts are split some take the view that a subsequent buyer is
|
on record notice of the contents of prior deeds transferred to others by a common grantor
The BETTER VIEW taken by other courts is that the subsequent buyer does not have record notice of the contents of those prior deeds transferred to others by the common grantor (less burdensome to the D's title search) |
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Equitable defenses to enforcement of an equitable servitude
|
Changed conditions: must be so pervasive that the entire area or subdivision was changed (mere pockets of limited change are not good enough)
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Adverse Possession, the basic concept
|
Possession, for a statutorily prescribed period of time can, if certain elements are met, ripen into title
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The elements of adverse possession are
|
For possession to ripen into title it must be:
1- Continuous, uninterrupted for the statutory period ( In NY, 10 years) 2- Open and Notorious: the sort of possession the usual owner would make under the circumstances 3- Actual: the entry must be literal 4- Hostile: the possessor doesn't have the true owner's permission to be there For the multistate: possessor's subjective state of mind is irrelevant For NY: the possessor must have a good faith belief (albeit a mistaken one) that the land that he is occupying is indeed his |
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One adverse possessor may tack on to his time with the land his predecessor's time, so long as
|
there is privity, which is satisfied by any non-hostile nexus, such as blood, contact, deed and will.
Tacking is not allowed when there has been an ouster. |
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The statute of limitations will not run against a true owner who is afflicted by a disability at
|
the start of the adverse possession.
Common disabilities include insanity, infancy, imprisonment |
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|
Every conveyance of real estate consists of a two-step process
|
Step 1: The land contract, which endures until step 2.
Step 2: The closing, where the deed becomes our operative document |
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|
The land contract and the statute of frauds standard
|
The land contract must be in writing, signed by the party to be bound, describing land, state some consideration
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|
When the amount of land recited in the land contract is more than the actual size of the parcel the remedy is
|
specific performance with a pro rata reduction in purchase price
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|
The one exception to the statute of frauds in a land contract
|
The doctrine of part performance. If on your facts, you have two of the following three, the doctrine is satisfied and equity will decree specific performance of an oral contract for the sale of land:
1- Possession 2- B pays all or part of the price and/or 3- B makes substantial improvements |
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|
The problem of the risk of loss
|
apply the doctrine of equitable conversion: equity regards as done that which ought to be done.
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|
In equity, once the land contract is signed;
|
B owns the land subject to the condition that he pays the purchase price at closing
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|
If in the interim between contract and closing, Blackacre is destroyed through no fault of either party
|
B bares the risk of loss unless the contract says otherwise.
IN NY SO LONG AS BUYER IS WITHOUT FAULT, THE RISK OF LOSS REMAINS WITH SELLER UNTIL BUYER HAS TITLE OR TAKES POSSESSION. |
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|
Two implied promises in every land contract
|
1- Seller promises to provide marketable title at the closing.
2- Seller promises not to make any false statements of material fact: The majority of states now also holde sellers liable for failing to didsclose latent defects, seller is liable for material loss and material omission. If the contract contains a general disclaimer of liability disclaimer will not excuse seller from liability it is fraud to fail to disclose |
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|
Marketable title standard
|
title free from reasonable doubt, free from lawsuits and threat of litigation
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|
3 circumstances will render title unmarketable
|
1- adverse possession: if even part of the title rests on adverse possession, it is unmarketable. seller must be able to provide good record title
2- Encumbrances: marketable title means an unencumbered fee simple. Thus servitudes and mortgages render title unmarketable, unless buyer has waived them. 3- Zoning violations: property cannot violate a zoning ordinance. |
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|
Seller has the right to satisfy an outstanding mortgage or lein
|
at the closing. Thus, buyer cannot claim title is unmarketable because it is subject to a mortgage prior to closing, so long as the parties understand that the closing will result in the mortgage being satisfied or discharged
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|
The land contract contains no implied warranties of
|
fitness or hability. Common law norm is caveat emptor- buyer beware.
One impt exception: the implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor. |
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|
At the closing, the controlling document is now
|
the deed which passes legal title from seller to buyer, must be lawfully executed and delivered
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|
How does the deed pass legal title from seller to buyer
|
Lawfully executed and delivered
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|
Lawful execution of a deed means
|
1-must be in writing an dsigned by grantor. The deed need not recite consideration nor must consideration pass to make a deed valid
2- the description of the land does not have to be perfect. The law requires only an unambiguous description and good LEAD (lawful execution and delivery |
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|
The delivery requirement could be satisfied
|
when grantor physically or manually transfers the deed to the grantee. It is permissible to use the mail, an agent, or a messenger
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|
Delivery does not necessarily require
|
actual physical transfer of the deed itself.
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|
|
The standard for delivery is a
|
legal standard and is a test solely of present intent.
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|
Recipients express rejection of the deed
|
defeats delivery
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|
If a deed, absolute on its face, si transferred to grantee with an oral condition
|
the oral condition drops out, it is not proveable, delivery is done.
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|
Delivery by escrow
|
is ok.
Grantor may deliver an executed deed to a third party, known as an escrow agent, with instructions that the deed be delivered to grantee once certain conditions are met. Once the conditions are met, title passes automatically to grantee. |
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|
The advantage of escrow
|
If grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met, title still passes from escrow agent to grantee.
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|
|
Covenants for title and the three types of deed:
|
Quitclaim
The general warranty deed The statutory special warranty deed |
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|
The quitclaim deed
|
contains no covenants. Grantor isn't even promising that he has title to convey. This is the worst deed buyer could hope for. Any problems post closing, grantor is off the hook.
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|
|
The general warranty deed
|
the best deed a buyer could hope for. Warrants against all defects in title including those due to grantor predecessors.
Typically contains 6 covenants |
|
|
6 covenants of a general warranty deed
|
Present covenant- if breached at the time the deed is delivered, the statute of limitations for breach of a present covenant begins to run at the instant of delivery
1- the covenant of seisin: grantor owns the estate he now claims to convey 2- the covenant of right to convey: grantor has the power to make the transfer under no temporary restrains on alienation, no disability (sound mind, requisite age, right to convey) 3- the covenant against encumbrances: no servitudes or leins or mortgages Future covenant: not breached, if evern, until grantee is disturbed in possession. Thus, the statute of limitations for breach of a future covenant will not begin to run until that future date: 4- the covenant for quiet enjoyment: grantee won't be disturbed in possession by a third party's lawful claim of title 5- The covenant of warranty: grantor will defend grantee if there are lawful claims of title brought by others 6- the covenant for further assurance4s: grantor will do what is needed in the future to perfect title |
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|
The statutory special warranty deed
|
Provided for by statute in many states, this deed contains two promises that grantor makes only on behalf of himself (no representations on behalf of his predecessors in interest)
1- He hasn't conveyed the property to anyone other than the grantee, not a double dealer And Property is free from encumbrances made by grantor IN NY, the special warranty deed is called a bargain and sale deed. |
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|
The Recording System: 2 brightline rules
|
1- If B is a bona fide purchaser, and we are in a notice jurisdiction, B wins, regardless of whether or not she records before A does.
2- If B is a bona fide purchaser and we are in a race-notice jurisdiction B wins if she records properly before A does NY is a race-notice jurisdiction. |
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|
A bona fide purchaser is one who
|
1- purchases Blackacre for value and
2- without notice that someone else got there first |
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|
Three forms of notice that a buyer may potentially be charged with are:
|
Actual
Inquiry Record |
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|
Actual notice:
|
literal knowledge of a previous BFP prior to closing
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|
|
Inquiry notice
|
1- Whether he looks or not, on inquiry notice of whatever an exam of property would show. The buyer of realestate has a duty to inspect before transfer of title, to see, whether anyone else is in possession. If another is in possession, B has inquiry notice regardless of whether buyer actually bothered to inspect or not.
2- If a recorded instrument makes reference to an unrecorded transaction, grantee is on inquiry notice of whatever a reasonable follow up would show |
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|
Record notice
|
If at the time B takes, A's deed was recorded properly within the chain of title, B is on record notice
|
|
|
The Notice Statute:
|
A conveyance of an interest in land shall not be valid against any subsequent purchaser for value without notice thereof, unless the conveyance is recorded.
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|
|
The race notice statute:
|
Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value wihtou notice thereof, whose conveyance is first recorded
|
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|
Three chain of title problems
|
1- The Shelter Rule
2- The Problem of the Wild Deed 3- Estoppel by Deed |
|
|
The Shelter Rule
|
One who takes from a BFP will prefvail against any entity that the transferor or BFP would have prevailed against. In other words, teh transferee "takes shelter" in teh status of her transferor, and thereby "steps into the shoes " of the BFP even though she otherwise fails to meet the requirements of BFP status.
The shelter rule aims to protect the second BFP by making it easier to transfer successfully |
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|
The Problem of the wild deed
|
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 existance.
O-A, A-B but A did not record, wild. O-C, C wins |
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|
Estoppel by deed
|
One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if later acquires the interest that he had previously transfered.
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|
|
What is a mortgage?
|
A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt
|
|
|
A mortgage is the union of two elements:
|
1- a debt
2- a voluntary transfer of a security interest in debtors land to secure the debt |
|
|
Equitable mortgage
|
Exchanging deed for credit
If creditor later sells, creditee must proceed agaist creditor for fraud to recover proceeds from the sale |
|
|
Once a mortgage has been created, what are the parties rights
|
Unless and until foreclosure, debtor mortgagor has title and the right to possession
Creditor mortgagee has a lein |
|
|
The creditor-mortgagee can transfer his interest by:
|
1- endorsing the note and delivering it to the transferee or
2- by executing a separate document of assignment |
|
|
If the mortgage note is endorsed and delivered, the transferee is eligible to become
|
a holder in due course. this means that he takes the note free of anypersonal defeases that could have been raised against the original creditor.
Personal defenses" include lack of consideration, fraud in the inducement unconsciounability, waiver, estoppel. thus the holder in due course may foreclose the mortgage despite the presence of any such personal defenses |
|
|
the holder in due course is still subject to real defenses that the maker might raise. Real Defenses include
|
MAD FIFI4
Material Alteration Duress FIF: Fraud in the Factume- a lie about the instrument Incapacity Illegality Infancy Insolvency |
|
|
To be a holder in due course of a note, the following criteria must be met:
|
1- the note must be NEGOTIABLE, made payable to the named mortgagee
2- the ORIGINAL NOTE must be indorsed, signed by the named mortgagee 3- the ORIGINAL NOTE MUST BE DELIVERED to the transferee. a photocopy i sunacceptable 4- the transferee must take the note IN GOOD FAITH, without notice of any ILLEGALITY And 5- the transferee must pay VALUE for the note, meaning some amount that is more than nominal |
|
|
Who is personally liable on the debt if debtor-mortagagor sells?
|
Both debtor-morgagor and buyer.
Buyer is primarily liable debtor-mortgagor remails secondarily liable |
|
|
If buyer takes property "subject to mortgage" who is personally liable?
|
Only O. Buyer assumes no personal responsibility.
But if recorded, teh mortgage remains on the land. Thus if O does not pay, the mortgage may be foreclosed |
|
|
A mortgagee must foreclose by
|
proper judicial action. The land is sold and the proceeds go to satisfying the debt.
|
|
|
If the proceeds from foreclosure sale are less thant he amount owed
|
mortgagee brings a deficiancy action against debtor
|
|
|
If there is a surplus from a foreclosure sale
|
Junior leans (creditors with lesser priority_ are paid off in order of their priority
|
|
|
Effect of foreclosure on junior leinholders
|
interests are terminated, but they should be able to proceed for a deficiency judgment. But, once foreclosure of a superior claim has occurred, with the proceeds distributed appropriately, junior lienholders can no longer look to the property for satisfactions
|
|
|
Those with interests subordinate to those of the foreclosing party are
|
necessary parties to the foreclosure action
|
|
|
Recording statutes apply to both
|
mortgages and deeds. Thus a later buyer takes subject to a properly recorded lein. Buyer is on record notice
|
|
|
Who is personally liable on the debt if debtor-mortagagor sells?
|
Both debtor-morgagor and buyer.
Buyer is primarily liable debtor-mortgagor remails secondarily liable |
|
|
If there is a surplus from a foreclosure sale
|
Junior leans (creditors with lesser priority_ are paid off in order of their priority
|
|
|
Effect of foreclosure on junior leinholders
|
interests are terminated, but they should be able to proceed for a deficiency judgment. But, once foreclosure of a superior claim has occurred, with the proceeds distributed appropriately, junior lienholders can no longer look to the property for satisfactions
|
|
|
If buyer takes property "subject to mortgage" who is personally liable?
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Only O. Buyer assumes no personal responsibility.
But if recorded, teh mortgage remains on the land. Thus if O does not pay, the mortgage may be foreclosed |
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As a creditor, you must
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record. Until you properly record your mortgage, you have no priority
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Once recorded, priority is determined by the norm of
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first in time, first in right
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The purchase money mortgage
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A mortgage given to secure a loan that enables the debtor to acquire the encumbered land
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Subordination agreements
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are all owed by private agreement or senior creditor may agree to subordinate his priority to a junior creditor
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Redemption in equity is recognized
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up to the date of sale.
At any time prior to the foreclosure sale, debtor has the right to redeem teh land and freethe mortgage |
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Once a valid foreclosure has taken place
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the right to equitable redemption is cut off
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How is the right of equitable redemption exercised
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by paying off the missed payment or payments plus interest plus costs
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What if the mortgag or note contained an acceleration clause?
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An acceleration clause permits the mortgagee to declare the full balance due in the even tof default. If the mortgage contains an acceleration clause the full balance, plus accrued interest plus costs must be paid to redeem
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May a debtor/mortgagor waive the right to redeem in the mortgage itself?
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No.
this is known as clogging the equity of redemption, prohibited, repugnant to public policy |
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Statutory redemption gives the debtor-mortgagor
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a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically 6 months to 1 year)
Where recognized, the statutory redemption applies only after foreclosure the amount to be paid is usually the foreclosure sale price, rather than the amount of the original debt Not recognized in NY |
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In most states to recognize statutory redemption, the mortgagor will have the right
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to possess the property during the statutory period
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When a mortgagor redeems in statutory redemption, the effect is to
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nullify the foreclosure sale, the redeeming owner is restricted to title
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If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable
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only if negligent
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In order for strict liability to attach to the excavator's actions, the plaintiff must show that
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the improvements on hisland did not contribute to his land's collapse, it would have happened in the natural state
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The two major systems for determining the allocation of water in watercourses, such as streams rivers and lakes
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1- The riparian Doctrine
2- the prior appropriation doctrine |
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The riparian doctrine
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the water belongs to those who own the land bordering the water.
These people are known as riparians, who share the right to reasonable use of the water Thus, one riparian will be liable if his or her use unreasonably interferes with the other's use |
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The prior appropriation doctrine
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The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner
Rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Thus a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water includign use for agriculture is sufficient to create the appropriation right |
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Groundwater, also known as percolating water: water beneath the surface of the earth that is not confined to a known channel entitles the surface owner
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to make reasonable use, however the use must not be wasteful
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Surface Waters: Those which come from rain, springs or melting snow and which have not yet reached a natural watercourse basin
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The common enemy rule: surface water is a nuisance, evil to be eradicated
A landowner may change drainage or make any other changes/ improvements on his land to combat the flow of the surface water. Many courts have modified the common enemy rule to prohibit no unnecessary harm to other's land |
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The possessor of land has the right to be free from
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Tresspass: invasion of land by tangible physical objects, to remove a tresspasser bring an ejectment action
And Private nuisance: does not require tangible physical invasion. Thus, odors and noise could give rise to a nuisance but not trespass action |
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Eminent domain defined
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Government's 5th Amendment power to take private property for public use in exchange for just compensation
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Explicit takings
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Acts of government condemnation- the gov't condemns your land to make way for a public highway
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Implicit or regulatory takings
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a governmental regulation that, although not intended to be a taking, has the same effect
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The remedy for a regulatory taking
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Government must either
1- compensate owner for the taking or 2-Terminate the regulation and pay the owner for damages that occurred while it was in effect |
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Zoning defined
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Pursuant to its police powers government may enact states to reasonably control land use
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The variance:
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The principal means to achieve flexibility in zoning
Granted or denied by administrative action |
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The nonconforming use:
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A once lawful, existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation is paid. Otherwise it would be deemed an unconstitutional taking
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Unconstitutional exactions defined
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Exactions are those amenities government seeks in exchange for granting permission to build
To pass constitutional scrutiny, these exastions must be reasonably related by there nature and scope to the impact of the proposal |
