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442 Cards in this Set
- Front
- Back
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FREEHOLD ESTATES
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Fee Simple Absolute
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"To A and his heirs"
"To A." |
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Duration
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Absolute ownership, of potentially infinite duration
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Transferability
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Devisable, Descendible, Alienable
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What does devisable mean?
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It can pass by will
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What does descendible mean?
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It will pass by the statutes of intestacy if its holder dies intestate (without a will)
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What does alienable mean?
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It is transferrable inter vivos, or during the holder's lifetime
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Is there a future interest in fee simple absolute?
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No.
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Fee Tail
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"To A and the heirs of his body"
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When will you see fee tail on the exam?
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You probably wont. It has been virtually abolished in the US and in NY.
Usually when a fee tail is created it becomes a fee simple absolute |
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Duration
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Lasts only as long as there are lineal blood descendants of grantee
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Transferability
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Passes automatically to grantee's lineal descendants
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Future Interest
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Reversion (if held by grantor);
Remainder (if held by third party) |
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Fee Simple Determinable
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"To A so long as..."
"To A until..." "To A while..." Any other language providing that upon the happening of a stated event, the land is to revert to the grantor |
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Duration
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Potentially infinite, so long as the event does not occur
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Transferability
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Alienable, devisable, and descendible SUBJECT TO THE CONDITION
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Future Interest
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Possibility of Reverter (held by grantor)
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Fee Simple Subject to Condition Subsequent
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"To A, but if X event happens, grantor reserves the right to reenter and retake"
The Grantor must carve out the right of reentry in the language |
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Duration
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Potentially infinite, so long as the condition is not breached and, thereafter, UNTIL the holder of the right of entry timely exercises the power of termination
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Transferability
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Alienable, devisable, and descendible SUBJECT TO THE CONDITION
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Future interest
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Right of Entry/Power of Termination (held by the Grantor)
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Fee Simple subject to an executory limitation
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"To A, but if X event occurs then to B."
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Duration
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Potentially infinite, so long as stated contingency does not occur
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Transferability
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Alienable, devisable, and descendible SUBJECT TO THE CONDITION
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Future interest
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Executory Interest (held by third party)
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Can words of mere desire, hope, or intention create a defeasible fee?
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NO.
Courts disfavor the free use of land The courts will not find a fee defeasible unless clear durational language is used |
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Life Estate
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"To A for life"
"To A for the life of B" |
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Can there be an absolute restraint on alienation?
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NO. They 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 |
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Duration
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Measured by life of transferee or by some other life
(pur autre vie) |
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Transferability
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Alienable, devisable and descendible if pur autre vie AND measuring life is still alive
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Future Interest
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Reversion: If held by grantor
Remainder: If held by third party |
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What is a life tenant entitled to?
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All ordinary uses and profits from the land
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What must a life tenant NOT do
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Commit waste.
He must not do anything to hurt the future interest holders |
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What are the three types of waste?
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1. Voluntary or affirmative waste
2. Permissive Waste, or neglect 3. Ameliorative waste |
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Voluntary or Affirmative Waste
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An overt conduct that causes a drop in value
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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 (such as timber, oil, or minerals) unless one of the 4 exceptions applies
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How do you remember the 4 exceptions?
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PURGE
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What are the four exceptions?
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1. Prior use
2. Repairs 3. Grant 4. Exploitation |
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Prior Use
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If the land was used for exploitation prior to the grant, the life tenant may continue to exploit unless otherwise agreed
Note: Prior Use and the Open Mines Doctrine: If mining was done on the land before the life estate began: the life tenant may continue to mine but is limited to the mines already open. Thus, the life tenant must not open any new mines |
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Repairs
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The life tenant may consume natural resources for repairs and maintenance
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Grant
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The life tenant may exploit if he is granted the right
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Exploitation
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The land is suitable ONLY to exploit
ex: Quary |
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When does permissive waste, or neglect occur
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When the land falls into disrepair
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How does a life tenant avoid causing permissive waste?
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They must simply maintain the premises in good repair
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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 on the land, to the extent of income or profits from the land.
If there is no income or profit, the life tenant 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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Life tenant must not engage in acts that will enhance the property's value, UNLESS
All future interest holders are known and consent |
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Amerliorative waste in NY
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A life tenant MAY make reasonable improvements unless the remainderman object
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FUTURE INTERESTS
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What are the future interests capable of creation in the grantor
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1. Possibility of Reverter
2. The Right of Entry (Power of Termination) 3. The Reversion |
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What is a Reversion?
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The future interest that arises in a grantor who transfers an estate of lesser quantum than she stated with, other than a fee simple determinable or a fee simple subject to condition subsequent
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If your future interest is held by someone other than the grantor, it has to be either
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1. Vested remainder
2. Contingent remainder 3. Executory interest |
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Types of Vested Remainder
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1. Indefeasibly vested remainder
2. The vested remainder subject to complete defeasance 3. Vested remainder subject to oven |
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Types of executory interests
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1. Shifting
2. Springing |
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What is a remainder?
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A future interest created in a grantee 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
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Who is a remainder man?
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Always accompany the preceding estate of a known fixed duration.
(Usually a life estate or a term of years) |
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Can a remainderman every follow a defeasible fee?
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NO, they wait patiently for a present estate to end
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Can a remainder man cur short or divest a prior transferee?
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NO
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When is a remainder a Vested Remainder?
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If it is both created in an ascertained person and is not subject to any condition precedent
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When is a remainder a Contingent remainder?
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IF it is created in an UNascertained person or IS subject to a condition precedent, or both
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In NY what is a future interest in a transfer that is subject to a condition precedent called?
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A remainder subject to a condition precedent
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What is a condition precedent
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A condition that appears BEFORE the language creating the remainder, or is woven into the grant to remainderman
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At common law, how do you destroy a contingent remainder?
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If it is still contingent at the time the preceding estate ended
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What is the law regarding destroying a contingent remainder today?
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O or O's heirs would hold the estate subject to B's springing executory interest
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When would the Rule in Shelly's Case apply?
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O conveys "To A for life, then, on A's death, to A's heirs
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What would happen in this setting under Shelly's Case?
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The present and future interests would merge giving a fee simple absolute to promote alienability.
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Does the Rule in Shelly's case exist in NY or in the majority?
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NO, it has been abolished
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When does the Doctrine of Worthier Title apply
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Applies when O, who is alive, tries to create a future interest in his heirs
"O, who is alive, conveys To A for life, then to O's heirs" |
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What happens to the contingent remainder?
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The contingent remainder in O's heirs is VOID
Thus, A has a life estate and O has a reversion |
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Is the Doctrine of Worthier Title a rule of construction or a rule of law?
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A rule of construction.
The Grantor's intent CONTROLS. If the grantor clearly intends to create a contingent remainder in his heirs, intent is binding |
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Does the Doctrine of Title exist in NY?
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No, it has been abolished
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Indefeasibly vested remainder
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The holder of this remainder is certain to acquire an estate in the future, with no strings attached
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Vested Remainder subject to complete defeasance
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His taking is not subject to any condition precedent. However his right to possession could be cut short because of a condition subsequent
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How can you tell the difference between a condition precedent and a condition subsequent?
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WHen condition language follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent
If the conditional language appears BEFORE the language creating the remainder, the condition is a condition precedent |
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When is there a vested remainder subject to open?
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A remainder is vested in a group of takers, at least one of whom is qualified to take
HOWEVER, 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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others can still join
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A class is closed when
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No others can join
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How wil you know when the given class has closed?
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The class closes whenever any member can demand possession
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What is an executory interest?
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A future interest created in a transferee (third party), which is not a remainder and which takes effect by either cutting short some interest in another person (shifting) or the grantor r his heirs (springing)
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Shifting executory interest
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It always follows a defeasable fee and cuts short someone other than grantor
"To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs" |
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Springing executory interest
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O conveys: To A, if and when he marries"
A has a springing executory interest |
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THE RULE AGAINST PERPETUITIES
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What is the rule?
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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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4 step technique for assessing potential RAP Problems
STEP ONE |
Determine which future interests have been created by the conveyance.
The RAP potentially applies ONLY to contingent remainders, executory interests, and certain vested remainders subject to open |
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STEP TWO
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Identify the conditions precedent to the vesting of the suspect future interest
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STEP THREE
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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 conditions occurrence
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STEP FOUR
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Ask: Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder can or cannot take?
If so, the conveyance is good. If not (if there is any possibility, however remote, that the condition precedent could or could not occur more than 21 years after the death of a measuring life), the future interest is void |
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Two bright line rules of common law 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 common law RAP
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 |
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"Bad as to one, bad as to all"
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To be valid under RAP, 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 members of the class, the entire class gift is void |
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The charity-to-charity exception
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A gift from one charity to another charity will not violate the RAP
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The "wait and see" or "second look" doctrine
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- Majority reform effort
- Validity of any suspect future interest is determined on the basis of the facts as they now exist at the time the grant is created This eliminates the "what if" or "anything is possible" line of inquiry |
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The Uniform Statutory Rule Against Perpetuities
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Codifies the common law RAP and in addition, provides for an alternative 90 year vesting period
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Cy Pres Doctrine
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"As near as possible"
-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 New York Perpetuities Reform Statute
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Applies the common law rule against perpetuities and has rejected wait and see and cypress, except for charitable trusts and powers of appointment, to be taken up in Trusts
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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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Age contingency is reduced to 21 years
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The common law fertile octogenarian principle is modified by the NY perpetuities reform statute. The NY statute presumes that a woman over the age of:
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55 cannot have a child. The possibility that a person may have a child by adoption is disregarded
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What is the NY "suspension" rule
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The rule against suspension of the absolute power of alienation applies to common law RAP to restriction on power to sell or transfer
In other words, 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 within lives in being plus 21 years |
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CONCURRENT ESTATES
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Three forms of concurrent ownership
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1. Joint Tenancy
2. Tenancy by the entirety 3. Tenancy in Common |
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Joint Tenancy definition
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2 or more own the right of survivorship
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Joint Tenancy distinguishing characteristics
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1. Right of survivorship
2. A joint tenants interest is alienable NOT devisable or descendable |
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What is the right of survivorship?
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When one joint tenant dies, his share passes AUTOMATICALLY to the surviving joint tenant
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How do you create a joint tenancy?
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1. Four Unities
2. Grantor must clearly express the right of survivorship 3. Use of a straw |
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What are the 4 unities?
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Time
Title Identical Interest Right to possess the whole |
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What is a straw?
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When the owner transfers to a middle man, then the middle man transfers back to the owner and the other party so that they can satisfy the 4 unities
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NY Distinctions
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In NY, you don't need the use of a straw, the owner can convey the property to himself and the joint tenant
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Can a joint tenant sell or transfer her interest during her lifetime?
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Yes, and she may do so secretly even without other's knowledge or consent
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When one joint tenant severs the joint tenancy, what kind of tenancy does the buyer revive?
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The buyer is a tenant in common
The other non-transfering joint tenants keep their joint tenancy |
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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 as to the contracting party's interest
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Doctrine of Equitable Conversion
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Equity regards as done that which ought to be done
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Three variations of Severance and Partition
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1. Voluntary agreement
2. Partition in kind 3. Force Sale |
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Voluntary agreement
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Peaceful way to end the relationship with consent of all parties involved
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Partition in kind
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Court action if int he best interests of all, for physical division of blackacre
- Usually in situations where the property is readily divisible |
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Forced Sale
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Court action, if in the best interests of all, where blackacre is sold and the proceeds divided proportionately
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Title Theory of Mortgages Rule
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One joint tenant's execution of a mortgage pr a lien on his or her share will sever the joint tenancy as to that now encumbered share
- Minority of states follow this |
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Lien Theory of Mortgages
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Joint tenant's execution of a mortgage on his or her interest will not sever the joint tenancy
- Majority of states including NY |
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Who recognizes the Tenancy by the Entirety
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- Recognized in 21 states including NY
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How do you create a Tenancy by the Entirety
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Between married parties who share the right of survivorship
Arises presumptively in any conveyance to married partners unless stated otherwise |
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Creditors and the tenancy by the entirety
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If the creditor is only going after ONE of the spouses, then they can't touch this type of tenancy
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NY distinction
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One spouse may mortgage his interest and his cretors may enforce against that interest but ONLY as to the debtor spouses's share.
The non-debtor spouse's rights, including the right of survivorship must not be compromised |
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Tenancy in Common rights
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Each co-tenant owns an individual part and each as a right to possess the whole
Each interest is devisable, descendable and alienable |
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Is there a right to survivorship in Tenancy in Common?
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NO
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RIGHTS AND DUTIES OF CO-TENANTS
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Possession
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- Each co-tenant is entitled to posess and enjoy the whole
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What happens if one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part
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He has committed wrongful ouster
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Absent ouster, is a co-tenant is in exclusive possession liable to other co-tenants for rent?
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NO
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What must a co-tenant who leases all or part of the premises to a third party do?
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Account to his co-tenants providing them with a fair share of the rent income
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Can one co-tenant acquire the other's title through adverse possession?
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NO
Unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period: Cannot acquire title to the exclusion of the others |
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NY distinction
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Co-tenant MAY acquire full title by adverse possession if he is in exclusive possession for 20 continuous years
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Carrying Costs
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Each co-tenant is responsible for his or her fair share of carrying costs (such as taxes and mortgage costs) based upon his or her undivided share
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Repairs
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The repairing co-tenant enjoys right to contribution for reasonable necessary repairs provided that she has notified the others of the need
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During the life of co-tenancy is there a right to contribution for making improvements?
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NO
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What is available for making improvements?
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At Partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts
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What if there "improvement" actually causes a drop in the value?
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The improver at partition will be fully liable for any drop in the value caused by the improvement
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Waste
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A co-tenant must not commit waste
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Partition
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A joint tenant or a tenant in common has a right to bring an action for partition
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LANDLORD/TENANT LAW
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The tenancy for Years is a lease for:
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A fixed period of time
Could be as short as 2 days or as long as 50 years |
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Does a tenancy for years need notice to terminate?
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No notice is needed to terminate because a term of years states from the outset when it will terminate
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What is required if the term of years is greater than one year?
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It must be in writing to satisfy the statute of fruads
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The Periodic Tenancy is a lease which
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Continues for successive intervals until Landlord or Tenant gives proper notice of termination
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How is the Periodic Tenancy created?
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Express or Implied
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Expressly
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to T from month to month, year to year, week to week
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Implied
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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 periodic tenancy measured by the way rent is tendered 3.The holdover |
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What is the holdover?
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In a residential lease, L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease
Implied periodic tenancy arise, measured by teh way rent is NOW tendered |
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NY exception
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The landlord who elects to holdover a tenant creates an implied month-to-month tenancy, unless otherwise agreed
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How do you terminate a periodic tenancy?
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Notice, usually written, must be given
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How much notice is required at common law?
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At least equal to the length of the period itself, unless otherwise agreed
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The one exception
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If the tenancy is from year-to-year or greater, you only need 6 months
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Can parties by private agreement lengthen or shorten the notice provisions?
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YES, freedom of contract
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Must the periodic tenancy end at the conclusion of the natural lease period?
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YES
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The Tenancy at Will is a tenancy for:
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No fixed duration
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How will rent be paid?
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Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat this as an implied periodic tenancy
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The tenancy at will may be terminated by
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Either party, at any time, BUT a reasonable demand to vacate is usually needed
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In NY the landlord terminating a tenancy at will must give a minimum of how many days written notice of termination?
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30 days
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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 least.
We give this wrongdoer a leasehold estate (the tenancy at sufferance) to permit L to recover rent |
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How long does the tenancy at sufferance last?
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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 will create:
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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. Liability to third parties
2. Duty to repair 3. Duty to pay rent |
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T's Liability to Third Parties
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-T is responsible for keeping the premises in good repair
- T is liable for injuries sustained by 3rd parties the T invited, even where the L promised to make all repairs |
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T's Duty to Repair standard
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1. T must maintain the premises and make ordinary repairs
2. T must not commit waste 3. The law of fixtures |
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Voluntary Waste
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Overt Destruction
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Permissive Waste
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Neglect
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Ameliorative Waste
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Changes that increase value
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The Law of Fixtures
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- Walks with the waste doctrine
- When a tenant removes a fixture she commits voluntary waste |
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What is a fixture?
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A once movable chattel that, by virtue of its annexation to realty objectively shows the intent to permanently improve the realty
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Does it matter if the T was the one who installed it
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NO. T must not remove a fixture no matter that she installed it
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Exception
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In the absence of an agreement stating the contrary, T may remove a fixture that she installed so long as tje removal does not cause substantial harm to the premises
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What happens if it is shown that removal would cause substantial harm?
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The fixture stays put
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T's duty to repair when T has expressly covenanted int eh least to maintain the property in good condition for the duration of the lease and there is destruction of the property
(COMMON LAW) |
T was liable for any loss to the property, including loss due to force of nature
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Majority view today
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T is off the hook. T may end the lease when the premises are destroyed with T's fault
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NY view
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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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If the T breaches the duty to pay rent and is in possession of the premises, what are the landlord's options?
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1. Evict through the courts
2. COntinue the relationship and sue for the rent due |
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What happens when the L moves to evict?
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She is nonetheless entitled to rent from the tenant, who is now a tenant at sufferance, vacates.
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What can the landlord NOT do
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Engage in self help such as changing the locks, forcibly removing T, or removing T's belongings
Punishable civilly and criminally |
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T breaches duty to pay rent but is out of possession. What are the landlords options?
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S.I.R.
1. Surrender 2. Ignore 3. Re-let |
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What is surrender?
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L could choose to treat T's abandonment as an implicit offer to surrender which L accepts
T shows by words or conduct that she wants to give up the lease |
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What happens if hte unexpired term is greater than one year?
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Surrender must be in writing to satisfy the statute of frauds
Could be as simple as LL sending a letter to the T saying that they accept |
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What happens if a L chooses to ignore?
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Ignore the abandonment and hold T responsible for the unpaid rent, just as if T were still there
This option is available only in the minority of the states |
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What happens during a re-let
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L re-lets the premises on the wrongdoer tenant's behalf,and hold him or her liable for any deficiency
--> L MUST at least try to re-let (This is a mitigation principal) |
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NY and re-let
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NY generally does not require a landlord to mitigate damages when tenant abandons the premises
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LANDLORD DUTIES
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What are the landlord's duties?
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1. Duty to deliver possession
2. Implied covenant of Quiet Enjoyment 3. Implied Warrant of Habitability |
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Duty to deliver possession
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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 gets damages |
|
|
Who does the implied covenant of quiet enjoyment apply to?
|
Both residential and commercial leases
|
|
|
What is the implied covenant of quiet enjoyment?
|
T has a right to quiet use and enjoyment of the premises without interference from L
|
|
|
What happens when there is a breach by actual wrongful eviction?
|
This occurs when L wrongfully evicts T, or excludes T from the premises
|
|
|
What happens when there is a breach of constructive eviction?
|
1. Substantial interference
2. Notice 3. Get Out |
|
|
Substantial Interference
|
Due to L's actions or failures.
Could mean a choice problem, doesn't have to be permanent |
|
|
Notice
|
T must notify L of the problem and L must fail to respond meaningfully
|
|
|
Goodbye
|
T must vacate within a reasonable time after L fails to remediate
|
|
|
Is the landlord liable for acts of other tenants?
|
Generally, no
|
|
|
Two exceptions
|
- Must not permit a nusiance on sight
- Must control all common areas |
|
|
Who does the implied warranty of habitability apply to?
|
ONLY to residential leases
|
|
|
Is the implied warranty of habitability waivable?
|
NO
|
|
|
Standard for Implied Warranty of Habitability
|
The premises must be fit for basic human dwelling
Bare-living requirement |
|
|
The appropriate standard may be supplied by:
|
Housing code or case law
|
|
|
The sorts of problems to trigger breach of the implied warranty of habitability include
|
No heat in winter, no running water, not plumbing, ect.
|
|
|
When the implied warranty of habitability is breached, what are the T's options?
|
1.Move out and end the lease
2. Repair and Deduct 3. Reduce Rent 4. Remain in Possession |
|
|
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
|
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 her good faith |
|
|
Remain in Posession
|
And pay rent and affirmatively seek money damages
|
|
|
If T lawfully reports L for housing code violations L is barred from:
|
Penalizing the T
For example: raising rent, ending the lease, harassing the T |
|
|
THE ASSIGNMENT VS. THE SUBLEASE
|
_
|
|
|
What is it called when a T transfers their interest in whole?
|
Assignment
|
|
|
What is it called when a T transfers their interest in part?
|
Sublease
|
|
|
In the lease, can L prohibit T from assigning or subletting without the L's prior written approval?
|
YES
|
|
|
What happens after the 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
|
|
|
What is the rule in NY?
|
Unless the lease provides otherwise, a residential T may not assign without the L's written consent.
L can unreasonably withhold consent to assign, and T's sole remedy is to seek release from the lease. However, a T in a residential building having four or more units has the right to sublease subject to L's written consent, and the consent cannot be unreasonably withheld. If it is, it is deemed consent. |
|
|
In an assignment what is the relationship between the L and T2?
|
L and T2 are liable to each other for all of the convenants in the original lease that run with the land
L and T2 are not in privity of contract unless T2 assumed all promises in the original lease |
|
|
In an assignment, what is the relationship between the L and T1
|
They are no longer in privity of estate
They ARE still in privity of contract L and T1 are secondarily liable to each other |
|
|
In a sublease what is the L's relationship with T2?
|
- No privity of estate
- No privity of contract |
|
|
In a sublease what is the L's relationship with T1?
|
L and T1 relationship remains fully intact
|
|
|
LANDLORD TORT LIABILITY
|
_
|
|
|
Common Law of Caveat Lessee
|
Let T beware
In tort for personal injuries, the L was under NO duty to make the premises safe |
|
|
Exceptions:
|
1. Common areas
2. Latent defects rule 3. Assumption of repairs 4. Public Use Rule 5. Short term lease |
|
|
Latent Defects Rule
|
L must warn the T of hidden defects that L knows about or should know about
(simply a duty to warn, not a duty to repair) |
|
|
Assumption of Repairs
|
L who voluntarily makes repairs must complete them with reasonable care
|
|
|
Public Use Rule
|
L who leases public space (such as a convention hall or museum) and 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
|
|
|
Short term lease of furnished dwelling
|
L is liable for any defects on sight
|
|
|
SERVITUDES
|
_
|
|
|
Easement definition
|
The grant of nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land called the servient tenement
|
|
|
Common Examples
|
The privilege to lay utility lines on another's land
|
|
|
Two types of easements
|
1. Affirmative
2. Negative |
|
|
Affirmative Easement
|
The right to do something on servient land
|
|
|
Negative Easements
|
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Organized in 4 categories |
|
|
4 Categories of Negative Easements
|
Light
Air Support Stream water from an artificial flow |
|
|
How are negative easements created?
|
Can only be created expressly by writing signed by the grantor
|
|
|
When is an easement appurtenant?
|
When it benefits the holder in his physical use or enjoyment of his property.
It takes 2 parcels. |
|
|
Difference between a dominant tenement and a servient tenement in an easement appurtenant
|
Dominant tenement gets the benefit
Servient tenement bears the burden |
|
|
When is an easement 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
|
|
|
Is there a dominant tenement and a servient tenement in an easement in gross?
|
NO.
The servienet land is burdened |
|
|
How does an easement appurtenant pass?
|
Automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance
Burden of easement also passes automatically unless the new owner is a bona fide purchaser without notice of the easement |
|
|
How do you create an affirmative easement?
|
1. Prescription
2. Implication 3. Necessity 4. Grant |
|
|
By Grant requirements
|
An easement to endure for more than one year must be in a writing that complies with the formal elements of a deed
This is because of the Statute of Frauds. Called a deed of easement |
|
|
By Implication requirements
|
(Also known as the easement implied from existing use)
1. Previous use must be apparent AND 2. Parties expected that it would continue because it is reasonably necessary to the dominant land's use and enjoyment |
|
|
By Necessity requirements
|
The landlocked setting.
If grantor conveys a portion of his land with no way out except over part of grantor's remaining land |
|
|
By Prescription:
|
Adverse possession:
Continuous use for statutory period Open and Notorious Use Actual Use Hostile use, without owner's consent |
|
|
What is the appropriate statutory period on NY?
|
10 years
|
|
|
How is the scope of the easement determined?
|
It is set by the terms that created it.
|
|
|
Termination of an Easement
|
1. Estoppel
2. Necessity 3. Destruction 4. Condemnation 5. Release 6. Abandonment 7. Merger doctrine 8. Prescription |
|
|
Estoppel
|
The servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced
|
|
|
Necessity
|
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 won't end when the need ends |
|
|
Destruction
|
Destruction of the servient land, other than through the willful conduct of the servient owner will end the easement
|
|
|
Condemnation
|
Condemnation of the servient estate by eminent domain will end the easement
|
|
|
Release
|
A written release, given by the easement holder to the servient holder
|
|
|
Abandonment
|
The easement holder must demonstrate by physical action the intent to never use the easement again
|
|
|
Merger Doctrine
|
(Also known as the Unity of Ownership)
The easement is extinguished when title to the easement and title to the servient land become vested in the same person |
|
|
What happens if complete unity of title is achieved and then later there is separation of title?
|
The easement is not revived
|
|
|
Prescription
|
The servient owner may extinguish the easement by interfering with it in accordance with the elements of Adverse Possession
|
|
|
THE LICENSE
|
_
|
|
|
Definition of the license
|
A mere privilege to enter another's land for a delineated purpose
|
|
|
Are licenses subject to the statute of frauds?
|
NO, you do not need a writing
|
|
|
Are licenses freely revocable?
|
Yes, at the will of the licensor unless estoppel applies to bar revocation
|
|
|
3 typical instances of a license
|
1. Ticket cases
2. Neighbors talking by the fence 3. Estoppel |
|
|
What kind of license do tickets create?
|
A freely revocable license
|
|
|
What does an oral easement create?
|
A freely revocable license
|
|
|
When will estoppel bar revocation?
|
Only when the licensee has invested substantial money, or labor, or both in reasonable reliance on the license's continuation
|
|
|
What does the profit entitle its holder to do?
|
To enter the servient land and take from it the soil, or some substance of the soil
|
|
|
What does the profit share?
|
All of the rules of easement
|
|
|
What is a covenant?
|
A promise to do or not do something related to the land
|
|
|
How is it different from an easement?
|
Because unlike the easement, it is not the grant of a property interest but rather a contractual limitation or promise regarding land
|
|
|
Two types of covenants
|
1. Negative
2. Affirmative |
|
|
Negative covenant
|
(Known as restrictive covenants)
A promise to refrain from doing something related to the land |
|
|
Affirmative Covenant
|
A promise to do something related tot eh land
|
|
|
How do you know whether to construe the given promise as a covenant at law or as an equitable servitute?
|
On the basis of the remedy that the plaintiff seeks
|
|
|
If P is seeking $ damages
|
Construe at law as covenant
|
|
|
If P is seeking Injunction
|
Construe in equity
|
|
|
What happens in a covenant parlance?
|
One tract is burdened by the promise, and another is benefited
|
|
|
What is the first question you have to ask in a parlance question?
|
Does the burden of A's promise to B run from A to A-1?
|
|
|
Elements to determine of the burden has run
|
1. Writing
2. Intent 3. Touch and Concern 4. Horizontal and Vertical Privity 5. Notice |
|
|
Writing
|
The original covenant is in writing
|
|
|
Intent
|
The original parties (A and B) intended that the covenant would run
Courts are generous in finding the requisite intent |
|
|
Touch and Concern the Land
|
The promise must affect the parties' legal relations as land owners and not simply as members of the public at lard
- Covenants to pay money to be used in connection with the land and covenants not to compete do touch and concern the land |
|
|
Horizontal and Vertical Privity
|
You need BOTH for the burden to run
|
|
|
What is horizontal privity?
|
The nexus between the original parties A and B
Requires that they be in succession of estate, meaning that they were in a grantor/grantee, or landlord/tenant, or motgagor/mortgagee relationship This is hard to establish and is often absent |
|
|
What is vertical privity?
|
Refers to the nexus between A and A-1.
It simply requires some non-hostile nexus such as contract, devisee, or decent. |
|
|
When is the only time that vertical privity will be absent?
|
If A-1 acquired her interest through adverse possession
|
|
|
Notice
|
A-1 must have had notice of the promise when seh took
|
|
|
What is the second question you have to ask?
|
Does the benefit of A's promise to B run from B to B-1?
(Does B-1 have standing?) |
|
|
Requirements to see if A's promise to B runs from B to B-1
|
1. Writing
2. Intent 3. Touch and concern 4. Vertical Privity |
|
|
Writing
|
The original promise from A to B was in writing
|
|
|
Intent
|
The original parties intended that the benefit would run
|
|
|
Touch and Concern
|
The promise affects the parties as landowners
|
|
|
Vertical Privity
|
Some non-hostile nexus between B and B1
|
|
|
What is an equitable servitude
|
A promise that equity will enforce against successors
|
|
|
What is an equitable servitude accompanied by?
|
Adjunctive Relief
|
|
|
How do you create and equitable servitude that will bind successors?
|
Writing
Intent Touch and Concern Notice |
|
|
Do you need privity to bind successors?
|
NO
|
|
|
What is the result if the common scheme doctrine applies?
|
The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant
|
|
|
Two elements of the Implied Equitable Servitude or General or Common Scheme doctrine
|
1. When the sales began the subdivider had a general scheme of residential development, which included defendant's lot
2. The defendant lotholder had notice of the promise contained in the prior deeds |
|
|
Three forms of notice that are potentially imputed to the defendant
|
1. Actual notice
2. Inquiry notice 3. Record notice |
|
|
Actual notice
|
Defendant had literal knowledge of the promises in the prior deeds
|
|
|
Inquiry notice
|
Neighborhood conforms to commonly imposted restrictions.
Lay of the land |
|
|
Record notice
|
The form of notice sometimes imputed to buyers on the basis of the publicly recorded documents
|
|
|
NY view on record notice
|
Subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor
|
|
|
Equitable defenses to enforcement of an equitable servitude
|
1. Changed Conditions
2. Adverse Possession |
|
|
Changed conditions
|
Changed circumstances alleged by the party seeking release from the term of an equitable servitude must be:
So pervasive that the entire area has changed |
|
|
What is never good enough to satisfy a changed condition?
|
Mere pockets of limited change
|
|
|
ADVERSE POSSESSION
|
_
|
|
|
What is the basic concept of adverse possession?
|
Possession, for a statutorily prescribed period of time can, if certain elements are met, ripen into title
|
|
|
Elements of Adverse Possession
|
1. Continuous
2. Open and Notorious 3. Actual 4. Hostile |
|
|
Continuous
|
Uninterrupted for the statutory period
|
|
|
Open and Notorious
|
The sort of possession the usual owner would make
|
|
|
Actual
|
A literal entry
|
|
|
Hostile
|
Possessor doesn't have the owner's consent to be there
|
|
|
Is the possessor's subjective state of mind relevant?
|
MBE: NO
NY: Possessor must have a good faith belief that hte land he is occupying is indeed his |
|
|
In NY, what is considered to be "bad faith"
|
If the claimant knows that he is occupying someone else's land
|
|
|
Tacking
|
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, contract, deed, will. |
|
|
When is tacking NOT allowed
|
When there has been ouster
|
|
|
Disabilities
|
The statute of limitations will not run against a true owner who is afflicted by a disability at the start of the adverse possession
|
|
|
What do common disabilities include?
|
Infancy, insanity, imprisonment
|
|
|
LAND CONVEYNACING
|
_
|
|
|
2 step process for the conveyance of real-estate
|
1. The land contract which endures until step 2
2. The closing, where the deed becomes our operative document |
|
|
What is the standard for a land contract?
|
1. Must be in writing
2. Signed by the party to be bound 3. Describe the property 4. State some consideration |
|
|
What happens when the amount of land recited in the land contract is more than the actual size of the parcel?
|
Remedy is specific performance with a pro rata reduction in price
|
|
|
Exception to the requirement of a writing
|
Doctrine of Part Performance
|
|
|
What is the Doctrine of Part Performance?
|
Allows for an equity decree of specific performance of an oral contract for the sale of land if 2/3 elements are met
1. B takes possession 2. B pays all or part of the price AND/OR 3. B makes substantial improvements |
|
|
What doctrine applies for the risk of loss?
|
The Doctrine of Equitable Conversion:
Equity regards as done that which ought to be done |
|
|
What is the effect of the Doctrine of Equitable Conversion?
|
Once the contract is signed, B owns the land, subject to the condition that he pay the purchase price at closing
Thus, if in the interim between contract and closing the property is destroyed through no fault of either party, B bears the risk of loss unless the contract says otherwise |
|
|
NY and the Doctrine of Equitable Conversion
|
So long as the buyer is without fault, the risk of loss remains with the seller until buyer has title or takes possession of the property.
|
|
|
Two implied promises in every land contract
|
1. Seller promises to provide marketable title at closing
2. Seller promises not to make any false statements of material fact |
|
|
Standard for providing marketable title at closing
|
TItle free from reasonable doubt (litigation or threat of litigation)
|
|
|
Three circumstances that 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 (Servitudes and mortgages render the title unmarketable unless the buyer has waived them) 3. Zoning violations (title is unmarketable when the property violates a zoning ordinance) |
|
|
Does the seller have the right to satisfy an outstanding mortgage or lien at the closing with the profits of the sale?
|
YES, thus a 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
|
|
|
Standard for the seller promising not to make any false statements of material fact
|
Majority of States:
Sellers are liable for failure to disclose latent material defects. Liable for material lies AND omissions |
|
|
If a contract contains a general disclaimer of liability (for examples, "property is sold as is"
|
Disclaimer won't relieve the seller from liability for fraud or failure to disclose
|
|
|
What happens if the contract contains no implied warranties of fitness or habitability
|
Common Law norm is caveat emptor
"Buyer Beware" |
|
|
Exception
|
The implied warranty of fitness and workmanlike construction applies tot eh sale of a new home by a builder vendor/seller
|
|
|
What happens at the closing?
|
The deed passes legal title from the seller to the buyer
|
|
|
What is the controlling document at the closing?
|
the deed
|
|
|
How does the deed pass legal title from seller to buyer?
|
Must have a lawful execution of a deed
|
|
|
What is the standard?
|
1. Must be in writing
2. Signed by a grantor 3. Description of the Land 4. Delivery |
|
|
Does the deed have to site consideration
|
NO, the deed does not have to recite consideration, and consideration is not needed to make a deed valid
|
|
|
Description of the land
|
Does not have to be perfect.
Requires only an unambiguous description and good lead |
|
|
How is the delivery requirement satisfied
|
When the grantor physically transfers the deef to grantee
|
|
|
What methods of delivery are permissible to use
|
Mail, an agent, or a messenger
|
|
|
Does delivery require a physical transfer of the deed itself?
|
NO.
Legal standard: Did the grantor have the present intent to be bound irrespective of whether or not the deed itself was handed over |
|
|
What happens if the recipient expressly rejects the deef
|
Defeats delivery
|
|
|
If a deef, absolute on its face, is transferred to grantee with an oral condition, what happens?
|
The oral condition drops out and delivery is done
|
|
|
Is delivery by escrow allowed?
|
YES
|
|
|
How do you accomplish delivery by escrow?
|
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 to the grantee |
|
|
What is the main advantage of delivery by escrow?
|
If the grantor dies or becomes incompetent or is otherwise unavailable before the express conditions are met, title still passes from escrow agent to grantee once the conditions are met
|
|
|
Three types of deeds
|
1, Quitclaim
2. General Warranty 3. Statutory Special Warranty |
|
|
Quitclaim Deed
|
- Contains no covenants.
Grantor isn't even promising that he has the title to convey. This is the worst deed buyer could hope for But, grantor did promise int he land contract to provide marketable title AT CLOSING. Any problem post closing and the grantor is off the hook. |
|
|
General Warranty Deed
|
The best deed a buyer could hope for
Warrants against all defects in title, including those due to grantor's predecessors Generally contains 6 covenants |
|
|
What are the 6 covenants that are generally in a General Warranty Deed
|
1. Covenant of sesin
2. Covenant of the right to convey 3. Covenant against encumbrances 4. Covenant for quiet enjoyment 5. Covenant of warranty 6. Covenant for further assurances |
|
|
Which of these covenants are present covenants?
|
1. Covenant of sesin
2. Covenant of the right to convey 3. Covenant against encumbrances |
|
|
What does it mean to be a present covenant?
|
A present covenant is breached, if ever, at the time of delivery
Thus, the statute of limitations for breach of a present covenant begins to run the instant of delivery |
|
|
Which of the covenants are future covenants?
|
4. Covenant for quiet enjoyment
5. Covenant of warranty 6. Covenant for further assurances |
|
|
What does it mean to be a future covenant?
|
A future covenant is not breached, if ever, 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 |
|
|
Covenant of Seisin
|
Grantor owns this estate
|
|
|
Covenant of the right to convey
|
- Grantor has the power to transfer
- She is under no restraint or disability |
|
|
Covenant against encumbrances
|
There are no servitudes or mortgages on the property
|
|
|
Covenant for quiet enjoyment
|
Grantee wont be disturbed in possession by a 3rd party's lawful claim of title
|
|
|
Covenant of warranty
|
Grantor will defend grantee against lawful claims of title asserted by others (if there is, even though to his knowledge there isn't)
|
|
|
Covenant for further assistance
|
Grantor will do what is needed to perfect the title
(Good faith cooperator) |
|
|
The Statutory Special Warranty Deed
|
Provided for by statute in many states, deed contains 2 promises that the grantor makes ONLY ON BEHALF OF HIMSELF (not his predecessors)
1. Grantor promises she hasn't conveyed this estate to anyone other than the grantee AND 2. The estate is free from encumbrances made by the grantor |
|
|
What is this called in NY?
|
Bargain and Sale deed
|
|
|
THE RECORDING SYSTEM
|
_
|
|
|
O conveys blackacre to A. Later O conveys blackacre to B. O skips town. Between A and B:
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
|
|
|
O conveys blackacre to A. Later O conveys blackacre to B. O skips town. Between A and B:
If B is a bona fide purchaser and we are in a RACE-NOTICE jurisdiction |
B wins IF she recorded properly before A does
|
|
|
Who are recording acts made to protect?
|
Bona fide purchasers and mortgagees (creditors)
|
|
|
What makes someone a bona fide purchaser?
|
1. Buys blackacre for value
AND 2. Without notice that someone else got there first |
|
|
What is required to buy for value?
|
Substantial pecuniary consideration
|
|
|
Three forms of notice that a buyer may potentially be charged with
|
1. Actual
2. Inquiry 3. Record |
|
|
Actual Notice
|
Prior to closing, B learns about A
|
|
|
Inquiry notice
|
B is on notice of whatever an exam of the property would show
|
|
|
What does the buyer of real estate have a duty to do before transfer of title?
|
Duty to inspect, to see, for example, if anyone has possession.
If someone else IS in possession, B has inquiry notice regardless of it she actually bothered to inspect or not |
|
|
What happens when the recorded instrument makes reference to an unrecorded transaction
|
Grantee is on inquiry notice for whatever a follow up would show
|
|
|
Record Notice
|
B is on record notice of A's deed if at the time B takes, A's deed was recorded properly within the chain of title.
Doesn't matter if B didn't bother to check the records |
|
|
The Notice Statute
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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 BASICALLY: If, at the time B takes, he is a BFP, he wins. It won't matter that A records first. The last BFP to enter wins! |
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Race Notice Statute
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A conveyance of an interest in land shall not be valid against any subsequent purchaser for value without notice thereof,
Whose conveyance is first recorded BASICALLY: To prevail B must 1) Be a BFP and B must 2) win the race to record |
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How is the chain of title established in most states?
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By a grantor/grantee index
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The Shelter Rule
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One who takes from a BFP will prevail against any entity that the transferor BFP would have prevailed against
The transferee takes shelter in the status of her transferor |
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The problem of the Wild Deed
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If a deed, entered on the records (A to B) has a grantor unconnected to the chain of title (O to A), the deed is a wild deed.
It is incapable of giving record notice of its existence |
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Estoppel by deed
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One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires the previously transferred interest
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MORTGAGES
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What is a mortgage?
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The conveyance of security interest in land intended by parties to be collateral for the repayment of a debt
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What two elements is the mortgage a union of?
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1. Debt
2. Voluntary transfer of a security in debtor's land to secure the debt |
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Who is the debtor?
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The mortgagor
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Who is the creditor?
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The mortgagee
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Does a mortgage have to be in writing?
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Usually yes, to satisfy the statute of frauds
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What is the legal mortgage
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Evidenced by a writing
- The note, the mortgage deed, security interest in land, deed of trust, sale lease back |
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The equitable mortgage
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When O hands Creditor a deed to a property that is absolute on its face
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Between O and the Creditor is parol evidence allowed to show the parties' true intent?
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YES, freely admissible
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What happens if the Creditor proceeds to sell the property to a bona fide purchaser?
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The bona fide purchaser owns the land
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What is O's remedy in that situation?
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Proceed against the creditor for fraud and the sale proceeds
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Once a mortgage has been created, what are the debtor-mortgagor's rights?
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Unless and until foreclosure, debtor-mortgagor has title and the right to possession
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What are the creditor-mortgagee's rights?
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Has a lien, the right to look to blackacre if there is a default
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Can all parties to a mortgage transfer their interests?
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Yes, the mortgage automatically follows a property transferred note
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How can a creditor-mortgagee transfer their interest?
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1. Endorsing the note and delivering it to the transferee
OR 2. Executing a separate document of assignment |
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If the note is endorsed and delivered, what is the transferee eligible to become?
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A holder in due course
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What does it mean to be a holder in due course?
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He takes the note free of any personal defenses that could have been raised against the original creditor
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What are some potential personal defenses?
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Lack of consideration, fraud in the inducement, unconsionability, waiver
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Is the holder in due course still subject to any "real defenses" that the maker might raise?
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Yes
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What are the real defenses?
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1. Material Alteration
2. Duress 3. Fraud in the Factume ( A lie about the instrument) 4. Incapacity 5. Illegality 6. Infancy 7. Insolvency |
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What is required to be a holder in due course of the note?
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1. Note must be negotiable, made payable to the named mortgagee
2. The original note must be indorsed, signed by the named mortgagee 3. Original note must be delivered to the transferee (A photocopy is NOT acceptable) 4. Transferee must take the note in good faith without any notice of illegality AND 5. The transferee must pay value for the note, meaning some amount that is more than nominal |
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Do recording statutes apply to mortgages as well as deeds?
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Yes
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Who is personally liable on the debt if O the debtor-mortgagor sells Blackacre to B
If B assumed the mortgage? |
O and B are both personally liable
B is primarily liable O is secondarily liable |
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Who is personally liable on the debt if O the debtor-mortgagor sells Blackacre to B
If B takes "subject to the mortgage" |
B assumes no personal liability
O is personally liable HOWEVER, if recorded, the mortgage remains on the land. Thus, if O does not pay, the mortgage may be foreclosed |
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How can a mortgagee foreclose?
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Forclose by proper judicial action
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What happens at a foreclosure?
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The land is sold and the proceeds go to satisfying the debt.
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What if the proceeds from the sale of Blackacre are less than the amount owed?
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Mortgagee brings a deficiency action against the debtor
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What if there is a surplus?
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Junior liens are paid in order of priority and then any remaining surplus goes to the debtor
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What is the order in which the foreclosure profits are distributed
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1. Attorney's fees, foreclosure expenses, any accrued interest on the first mortgage
2. FIrst Mortgage 3. Junior Liens in order of priority IN FULL before moving on to the next junior lien |
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What happens to the interests junior to the mortgage?
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Foreclosure terminates interests junior to the mortgage but will not affect senior interests
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Those with interests subordinate to those of the foreclosing party are called
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Necessary parties to the foreclosure claim
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Is the debtor-motgagor a necessary party?
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Yes
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Is the buyer personally liable on the senior debt?
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NO
However, if the senior mortgage is not paid, sooner or later the senior creditor can and will foreclose on the land |
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As a creditor, what must you do to obtain priority?
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1. Record
2. Once recorded, priority is determined by the norm of first in time, first in right |
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What if a mortgage is given to secure a loan that enables to debtor to acquire the encumbered land?
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They get to ignore the first in time, first in right and they are first priority on the land they financed
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When is redemption in equity recognized until?
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Up to the date of sale
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What are the debtor's redemption rights up to the date of sale?
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Can redeem the land and free it of the mortgage by paying off the missed payment(s), interest, and costs
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What if the mortgage or note contained an acceleration clause?
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They must pay the full balance plus accrued interests and costs
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May a debtor/mortgagor waive the right to redeem in the mortgage itself?
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NO.
That is known as clogging the equity of redemption and is prohibited |
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Statutory Redemption
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(NOT recognized in NY) (Only in about 1/2 the states)
Gives the debtor/mortgagor a statutory right to tedeem for some fixed period after the foreclosure sale has occurred (typically 6 months to a year) The amount to paid is usually: Foreclosure sale price The mortgagor will also usually have the right to possess the property during this time |
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LATERAL SUPPORT
If land is improved by buildings, and an adjacent landowner's excavation causes the improved land to cave in, when will the excavator be liable? |
ONLY if they were negligent
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When does strict liability attach to an excavator's actions?
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When the plaintiff shows that because of the defendant's actions, plaintiff's improved land would have collapsed even its natural state
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WATER RIGHTS
2 main doctrines |
1. The Riparian Doctrine
2. The Prior Appropriation Doctrine |
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Riparian Doctrine
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- Water belongs to those who own the land bordering the water course
- Known as riparians, who share the right of reasonable use of the water - One riparian is only liable if his or her use unreasonably interferes with the others use |
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Prior Appropriation Doctrine
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- Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he is a riparian owner
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In the Prior Appropriation Doctrine, how are rights determined?
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Priority of beneficial use.
First in time, first in right. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriation right. |
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What is groundwater?
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Also known as percolating water.
Water beneath the surface of the earth that is not confined to a known channel. |
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Who is entitled to used ground water and how?
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Surface owner is entitled to make reasonable use of ground water however the use must not be wasteful.
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What is surface water?
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Those which come from rain, springs, or melting snow, and which have not reached a natural watercourse or basin
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What is the rule for surface water?
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A landowner MAY change drainage or make any other changes/improvements on his land to combat the flow of surface water.
Many courts have modified this rule to prohibit unnecessary harm to other's land |
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POSSESSOR'S RIGHTS
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What rights does the possessor have?
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To be free from trespass and nusiance
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What is trespass
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Invasion of land by physical object
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How do you remove a trespasser?
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Bring an ejectment action
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What is a private nuisance
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Substantial and unreasonable interference with another's use and enjoyment of the land
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What happens in a case of a hypersensitive plaintiff?
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They lose.
Courts do not consider hypersensitivity |
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What is Eminent Domain?
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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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What is an explicit taking?
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Acts of governmental condemnation
Ex: they take your land to make a public highway |
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What is an implicit or regulatory taking?
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Governmental regulation that, although not intended to be a taking, has the same effect
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How must the government remedy a regulatory taking?
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1. Compensate owner
OR 2. Terminate the regulation and pay the owner for damages that occurred while it was in effect |
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What is zoning?
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Pursuant to its police powers, government may create statutes to reasonably control land use
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What is a variance?
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-Principal means to achieve flexibility in zoning
Must show 1. Undue hardship AND 2. Variance won't decrease neighboring property values |
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Who grants or denies a variance?
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Administrative action, usually by a zoning board
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What is nonconforming use?
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A once lawful, existing use now deemed nonconforming by a new zoning ordinance
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What is the rule for nonconforming use?
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Cannot be eliminated all at once, unless just compensation is paid.
Otherwise it could be deemed impermissible unconstitutional exaction |
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What is an unconstitutional exaction?
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Those amenities that the government seeks in exchange for getting permission to build.
Exactions must be reasonably related both in natures and in scope to the impact of the proposed development |
