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Property

Property

by calbarsucks, Jan. 2014

Subjects: 2009 bar california outline property

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232 Cards in this Set

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	Estates in land	- Present possessory estates - Future interests - Trusts - Concurrent estates
	Present possessory estates	- Fee simple absolute - Fee simple detrminable - Fee simple subject to condition subsequent - Fee simple subject to executory interest - Life estate
	Fee simple determinable	- Terminates upon stated event and AUTOMATICALLY REVERTS - Created by durational language - Can be conveyed but grantee takes subject to condition - Correlating interest in grantor: automatic possibility of reverter Created by: until, while, as long as. A conveys B to his heirs as long as liquor is not sold on the property.
	Fee simple	A conveys Blackacre "to B and his heirs" - words "in his heirs" are the words of limitation
	Fee simple subject to condition subsequent	- Grantor reserves right to terminate upon stated event - Estate does not automatically terminate (grantor must take action) - Words of condition - Correlating future interest in grantor: expressly reserved right of entry. - Created by words provided that, but if, on condition that - A conveys Blackacre to B and her heirs but if liquor is sold on the property, then A has right of re-entry
	Fee simple subject to executory interest	- If fee simple estate terminates upon event and passes to 3P - 3P has executory interest -A conveys Blackacre to B and her heirs but if liquour is sold on property then to C and his heirs. - If event occurs, title passes to 3d person (no reversion to grantor)
	Life estate: How created	- A by Deed - Life estate pur Autre Vie - Dower - Curtesy
	Life estate	Measured by the life of other - the grantee or pur autre vie.
	Rights and Duties of Life Tenant	-Entitled to ordinary use and profits of land. - Cannot injure interests of remainderman or reversioner - Not to commit waste
	Affirmative waste	- Can do it when it's necessary for repair or maintenance of the land - when the land is suitable only for such use - it is permitted by the grantor - Open mines doctrine applies
	Permissive waste	LT obligated to: - preserve land and structure in r/able repair - Pay interest on mortgages - Pay ordinary taxes - Pay special assessments of short duration - NOT obligated to insure premises for remainderman's benefit & not responsible for damages by 3P torts
	Ameliorative waste	- Economically benefits the property. - LT may alter or demolish the buildings if 1) FMV of future interests is not diminished, AND 2) remaindermen do not object OR 3) substantial change in neighborhood deprives property in current form of r/able usefulness.
	Worthless property	LT can ask for particion, proceeds put in trust w/income paid to LT.
	Renunciation of LE	Future interest accellerated
	Future Interests	- Reversionary Interests - Remainders - Executory Interests
	Fee Tail	- A by deed conveys Blackacre to B and the heirs of his body (of his body is the limitation) - In heritance to a particular group of lineal descendants - A conveys blackacre to B and the male heirs of his body.
	Reversionary Interests - Future Interest of Transferor	- Vested and NOT subject to RAP - Possibilities of Reverter, Rights of entry, Reversions
	Remainders - Future Interest in 3P	- Must be expressly created in conveyance - Possessory at natural expiration of prior estate
	Indefeasibly vested remainder	- Not subject to divestment or diminution - Vested = in ascertained person and not subject to condition - Remainderman immediately possesses at end of prior estate
	Vested remainder subject to open	- Certain class of persons that could get bigger
	Vested remainder subject to Total Divestment	- Subject to condition subsequent
	Contingent Remainder	- Subject to condition precedent - Destructibility of contingent remainders: If it fails to vest, the possession back to grantor at expiration of preceding estate until it vests.
	Rule in Shelley's Case	NO LE in A w/ reminder to A's heirs. That's a fee simple absolute.
	Doctrine of worthier title	- Remainder to grantor's "heirs" = reversion in grantor - Does not apply to wills
	Trusts	- Fiduciary relationship w/respect to specific property - Trustee holds legal title subject to beneficiary's enforceable equitably rights - Creator = settlor, owns property at time of creation and intends to create - RAP applies - Created by will, intervivos transfer or declaration
	Charitable trusts	Charitable purpose Indefinite beneficiaries Perpetual Cy pres
	Rule Against Perpetuities	- No interest is valid unless it MUST vest, if at all, not later than 21 years after some life in being at the creation of the interest. If there is ANY possibility the interest might vest more than 21 years after a life in being, interest is void.
	Application of RAP	- Contingent remainers - Vested remainders subject to open - Executory interests - Rights of first refusal - Powers of appointment
	What happens if RAP violated?	Offensive interest stricken.
	Application of RAP to class gifts	bad as to one, bad as to all
	Rule Against Restraints on Alienation	Restriction on transferability of a legal interest, ok to restrain equitable interests.
	Types of restraints	- Disabling - Forfeiture - Promissory - Absolute
	Disabling	- Attmepted transfers are ineffective. - Disabling restraint on any type of legal interest is void.
	Forfeiture	Attempted transfer forfeits interest
	Promissory	Attempted transfer breaches a covenant
	Absolute	Can't put absolute restraints on fee simples. They are void. Restraints for a limited time and r/able purpose are ok
	Valid restraints	- Forfeiture and promissory restraints on life estates - Forfeiture restraints on transferability of future interests - R/able restrictions in commercial transactions - Rights of first refusal - Restrictions on assignment and sublease of leasehold
	Concurrent estates	1. Joint tenancy 2. Tenancy by the entirety 3. Tenancy in common
	Joint Tenancy	- Right of survivorship to other JT - 4 unities required - All entitled to possess the whole
	What are the FOUR unities?	1. Time 2. Title 3. Possession 4. Interest
	Severance of JT	- TIC results and no more right of survivorship. - Intervivos conveyance by JT - Judgment liens - sever if JT's interest sold at foreclosure - Contract to convey by one JT is severance - Attempt at testamentary disposition void
	Mortgages and JTs	Lien theory: no severance until sold at foreclosure Title theory: severance at time of mortgage
	Tenancy by the entirety	- Marital - Only death, divorce, mutual agreement or execution by a joint creditor of both H & W can sever - Individual spouse cannot convey or encumber
	Tenancy in Common	TICs can have different size shares but all have right to possess whole.
	Rights & Duties of Co-Tenants	- Possession - Rents and Profits - Remedy of partition - Contribution
	Possession	- Each co-tenant has right to possess all - No action for possession unless ousted by other co-T
	Rents and Profits	CoT in possession share rent from 3Ps and exploitation profit Need not share profits from own use unless ouster or K
	Effect of one concurrent owner's encumbering property	May encumber own interest, and bank can only foreclose on mortgaging CoT's share
	Remedy of Partition	- In-kind (physical) or by sale (divide proceeds) - Any CoT can seek at any time - Can place restraints on partition for r/able time
	Expenses for preservation of property - Contribution	1. Repairs: CoT reimbursed for necessary repairs and notify others 2. Improvements: CoT not reimbursed for improvements unless partition 3. Taxes & Mortgages: Contribution allowed if CoT has sole possession. Only entitled to amount over rental value of own use.
	Tenancy for Years	- Fixed period of time - Written lease required unless less than 1 year - Termination is automatic at the end of termination date
	Breach of Covenants in Tenancy for years	LL has right of entry and can terminate lease if T breaches. Surrender by T and LL accepts. If more than one year left of lease, must be written
	Periodic Tenancy	- Successive periods until terminated by notice. - Creation: Express agreement, implication, or operation of law. Terminatation: Automatic renewal until proper notice of termination. Notice = one full period in advance and ends lease at end of period. Year-to-year? Only 6 mos notice required.
	Tenancy at will	- Terminable at will of T or L - Creation: express agreement - Termination? No notice required. By party w/power to do so or by operation of law.
	Tenancy at sufferance	- T wrongfully keeps possession after lease expires - Termination: Eviction w/no notice requirement
	Hold Over Doctrine	- If T keeps possession after lease expires, L may evict or bind T to new periodic tenancy. - Commercial leases may be held to new year-to-year if original lease was for a year or more. - If LL notifies T before lease expires that occupancy after termination will be at an increased rate, T, by holding over, is held to have acquiesced to new terms
	Exceptions to Hold Over Doctrine	- T remains in possession for only a few hours or leaves a few articles of personal property - Delay is not T's fault - Seasonal leases
	Tenant Duty to Repair	- T cannot damage, commit waste on property
	Types of waste for T/LL	- Voluntary - Permissive - Ameliorative
	Voluntary waste	- T intentionally or negligently damgas premises or exploits minerals on the property
	Permissive waste	- T fails to take r/able steps to protect from the elements - T liable for ordinary repairs, except normal wear & tear
	Ameliorative waste	- T alters leased property to increase its value - T must restore/pay to restore
	Destruction of Premises w/o fault	Neither T nor L must repair CL requires T to continue paying rent
	T's liability for covenant to repair	- Residential L obligated to repair under warranty of habitability - Commercial covenant for T to repair is enforceable - T covenants to repair not usually liable to rebuild structual damage or casualty destruction, unless covenant includes these
	Tenants Duties	- Duty to Repair - Duty to Not Use Property for Illegal Purposes - Duty to pay rent at agreed time
	Duty to pay rent at agreed time	- T to pay proportionate amount of agreed rent if lease terminates early - Deposits: L can only keep amount equal to damages - Terminating rent liability: effective surrender = end of T's duty to pay rent
	Landlord Remedies if T on premises and fails to pay rent	- Evict or sue for rent - CL: Breach = right to sue for damages but not evict - Modern Law = termination permitted
	Landlord Remedies when T unjustifiably abandons	- Do nothing - reposses - L duty to mitigate - find new T - T's liability depends if tehre's surrender.
	Liability based on surrender	- If no S, T liable for difference between promised rent and fair rental value or rent from new tenant - If S, T free from any rent liabilty since abandonment. L retaking possession himself = acceptance of surrender.
	LL duties	- Subject to modification by statute, lease or implied warranty of habitability, L generally has no duty to repair or maintain premises - L's duty to deliver actual possession - Quiet enjoyment - L and paramount title holder won't interfere w/T's QE and possession
	Breach of Quiet Enjoyment	1. Actual eviction: exclude T from entire premises, no duty to pay rent. 2. Partial eviction: T physically excluded from part of premises. -- If L evicts --> no rent due --- If 3P evicts --> only pay for part still possess
	Constructive Eviction (SING)	- Substantial - Interference - Notify - Go (w/in reasonable time)
	Implied warranty of habitability	- Applies only to residential leases - Not waivable
	Remedies for br/implied warranty of habitability	- Terminate lease - Make repairs and offset costs against rent - Abate rent to amount equal to fair rental value w/defects - Remain in possession, pay full rent and sue for damages
	Retaliatory Eviction	presumed if w/in 90-180 days of T reporting L's code violations
	Consequences of assignment	- Assignee and L in privity of estate - Liable to each other for covenants running w/land - Rent covenant runs --> Assignee pays rent directly to L - If assignee reassigns, his privity of estate ends and he has no liability for subsequent assignee - T and L remain in privity of K
	Consequences of Sublease	- Sublessee not in any privity with L - T in privity w/ L
	Landlord's remedies w/ sublesees	Terminate lease for breach, sublease ends with lease
	Rights of sublessee	Can only enforce implied warranty of habitability against LL
	Covenants against assignment and Sublease	- Strictly construed against LL - Waiver if LL aware of A/S and does not object - If consent to 1 A/S, waives future - Transfer in violation of lease: Transfer not void but LL may terminate lease or sue for damages
	Assignment by Landlords	- T's consent not req'd - Rights of A'ee against T - T owes rent to new LL - Covenants run - Liability of A'ee to T - Must perform covenants that run - Original L remains liable, too
	Condemnation of Leaseholds	- If entire leasehold taken by eminent domain. T's liabilty for rent extinguished. - Lessee entitled to compensation - If temporary or partial taking, T not discharged from paying rent, but entitled to compensation
	LL Tort Liability for concealed or hidden dangers	- L must disclose hidden dangers he knows/ should know of - Once disclosed, no liability to T/other's harmed
	LL Tort Liability for public use lands	LL liable to public if at time of lease he: - Knows/should know of a dangerous condition - Has reason to believe T may admit public before repairing the condition AND - Fails to repair
	LL tort liability for repairs	If L agrees to repair/repairs --> owes duty of r/able care and liable for failure to repair or negligent repair
	LL tort liability for furnished short-term residence	Liable for ANY defect
	Fixtures	Fixture incorporated and lose identity as chattel OR identifiable but removal damages. Passes w/ Ownership.
	Common ownership cases	- person owns land and chattel - item is fixture if objective intention was to make item part of the realty.
	Intention to make fixture determined by:	1. Nature of article 2. Manner of attachment 3. Amount of damage removal would cause 4. Adaption of the item to the use of the realty
	Constructive Annexation	Uniquely adapted to the property even though not physically attached.
	Fixtures w/ LL/T	- Agreement controls - If no agreement, T may remove if it will not damage the property or destroy the chattel and T repairs damage caused by removal.
	Fixtures and Life tenants	Same as LL/T
	Fixtures w/ Licensee or trespasser and landowner	- Licensee treated like tenant - Trespasser cannot remove fixtures absent statutory allowance
	3P cases w/fixtures	- 3P lien on land to which chattel affixed. - Generally no 3P right to affixed chattels - 3P lien on chattel to affixed land - Right to chattel if record the lien
	Non-possessory rights to another's land	1. Easements 2. Prescription 3. Profits 4. Real Covenants 5. Equitable servitues 6. Party walls and common driveways
	Easements	- Perpetual duration unless expressly limited - Affirmative (holder entitled to make affirmative use of servient tenement)
	Easement appurtenant	- Requires 2 tracts - servient and dominant - Runs w/dominant whether stated in conveyance or not - Also runs w/servient unless GFP with no notice of easement
	Easement in Gross	Right to use/enjoy servient tenement independently of possession of another tract.
	Creation of easement	- Express grant - Express reservation - Implication
	Express grants of easement	- Written and signed by servient owner unless for less than a year - Complies w/ deed requirements
	Express reservation	Can only reserve right for Grantor himself for special purposes
	Implication	By operation of law By necessity By prescription
	Creation by operation of law: Easement implied from existing use	- Prior to division of single tract - Apparent and continuous use on servient - R/ably necessary for enjoyment of dominant and - Parties intended the use to continue
	creation by operation of law: implied w/o existing use	- Subdivision plat: lots sold in subdivision w/reference to recorded plat/map showing streets leading to lots, buyers have implied easement to use street to access their lots Profit a prendre: implied easement over surface to extract
	Easement by prescription	Acquired by USE that is: 1. Open and Notorious 2. Adverse 3. Continuous and uninterrupted 4. For statutory period
	Scope of the easement	To meet needs of dominant tenement. S may not interfere w/easement, and D must make repairs
	Termination of an easement	- Stated conditions in easement grant - Merger - Written release by easement holder to servient owner - Abandonment (PERMANENT) - Estoppel - detrimental reliance - Prescription - Necessity (Ease by necessity ends when necessity ends) - Condemnation & destruction of servient estate
	Licenses	- License permits entry on another's land, but not an interest in land - Only a privilege, revocable at any time - Can be oral - Any attempt to transfer L results in its revocation
	When is a license irrevocable?	- Licensee invests substantial money or labor - License becomes easement by estoppel lasting until holder receives a benefit from easement enough to reimburse expenditures Also, license coupled with interest
	Profits	- Holder entitled to take something from servient land - All rules governing creation, alienation, and termination of easements apply. - Profit may also be terminated by misuse
	Real Covenants - requirements for burden to run	- Writing - Intent of original parties to run - Notice - Horizontal privity (shared interest in land between original parties) - Vertical privity (successful in interest as original party) - Touch & concern
	Real Covenants - requirements for Benefit to Run	- Writing - Intent of original parties - Vertical privity - Touch and concern
	Remedy in covenants	Damages only
	Termination of real covenant	Written release, merger, or condemnation
	Creation of equitable servitudes	- Written unless an implied reciprocal negative servitude. If some deeds in subdivision have negative covenants binding on all parcels provided there was a common scheme and notice of the covenants
	Requirements for the burden or benefit for an equitable servitude to run	- Writing - Intent - Notice - Touches and concerns
	Equitable defenses to enforcement	- Person seeking enforcement is also violating (unclean hands) - Benefited party acquiesced in a violation - Estoppel - Laches - Neighborhood has changed signficiantly that enforcement inequitable
	Termination of equitable servitude	Written release, merger, condemnation
	Party walls and common driveways	- belong to each owner to the extent it rests on her land - Imply mutual cross-easements of support - Each party can use and neither can unilaterally destroy
	Creation of party walls and common driveways	- Written agreement for express creation - Irrevocable license can arise from detrimental relianc on oral - Can also result from implication or prescription
	Running of covenants of party walls and common driveways	- If wall or common driveway owners agree to be mutually responsible for maintaining, burdens & benefits run.
	Adverse Possession Reqs	- Actual entry giving exclusing possession that is - Open and Notorious - Hostile and - Continuous
	Actual and exclusive possession	- Not sharing w/true owner or public - Occupy portion under color of title --> constructively possess whole - Multiple people can obtain title by AP as TICs.
	Hostile	- Enter w/o owner's permission - CoTs if Ouster
	Continuous Possession	- Intermittent periods of occupancy aren't enough unless seasonal - Must be type of use owner would make - Can tack possession of previous APers if in privity
	Disability and AP	SOL does not start running if owner under diability when COA first arose.
	Adverse Possession and Future Interests	SOL does not run against holder of future interest until it becomes possessory
	Effect of Covenants in True Owner's Deed	- If APer uses the land in violation of restrictive covenant in the owner's deed for the limitations period, she takes free of restriction - If possessor's use complies with covenant, takes subject to restriction
	Land that cannot be adversely possessed	Government owned land and land registered under a Torrens system.
	Statute of Frauds in Land Sale Contracts	Must contain essential terms: parties, description of land, price Part performance can satisfy -- possession, substantial improvements, payments
	Doctrine of Equitable Conversion	- Rights shift at signing of K - B owns real property interest - S owns personal property interest and holds bare legal title in trust for B - Risk of loss - on B when K signed, although insurance payments to S credited against price B must pay - Passage of title on death: S's interest in $$ passes as personal property, B's interest passes as real property
	Marketable Title	- Free of questions that present unr/able risk of litigation - Warranty implied in all Ks
	Defects in chain of title	- Title acquired by AP - Future interests held by unborn/unascertained persons
	Encumbrances	Liens, mortgages, restrictive covenants, easements, and significant encroachments
	Time of marketability	- Closing or last payment of installment K - S liable on K up until closing, then liable on the deed
	What does B have to do if Title not Marketable?	- Must notify before closing if going to recover. If closing occurs, K and deed merge and S's liability on K warranty ends.
	What if S doesn't cure?	Rescission, damages, specific performance with abatement, quiet title
	Time of performance	1. W/in r/able time of closing date 2. Time is of the essence when the K terms say so, when parties intend, or when one party notifies the other.
	What is the liability when time is of the essence?	- Breach if no performance on closing - Party late in tendering performance liable for incidental losses.
	Tender of Performance	- B's duties to pay and S's duty to convey = concurrent conditions - No breach until one party tenders performance and other does not - Closing date extends until one party tenders performance
	When is tender excused?	When the other party repudiates or when impossible to perform
	Remedy for br/sales K	Damages or specific performance
	Warranty of Fitness or Quality	- New construction only when builder = S
	Liability for Defects in Existing Land or Buildings	1. Misrepresentation: S liable for defects about which knowingly or negligently made false statement to B if B relied and the misrep materially affected property value 2. Active concealment 3. Failure to disclose: Defect not apparent and would cause B to reconsider purchase if known and S knows B unlikely to discover upon ordinary inspection
	Disclaimers of Liability	General disclosures are noe effective against 3 liability theories. Disclosure re: specific defects is effective.
	Formalities required in Deed	Written, signed by grantor, identify parties and land
	Intervivos gift requirements	- Donative intent - Delivery - Acceptance
	Defective deeds	- Void deed set aside even if BFP has propert. (forged, never delivered, obtained by fraud) - Voidable deed set aside only if property has not passed to BFP. Executed by minors, incapacitated, fraud, duress, UI, mistake, breach of FD
	Fraudulent Conveyances	- Set aside unless conveyed to BFP for value - Fraudulent if made with 1. actual intent to hinder, delay, or defraud grantor's creditor OR 2. W/o receiving r/ably equivalent value for the transfer and debtor was insolvent or bc insolvent as a result of transfer
	Description of land conveyed	- Must give good lead to property's identity. If it's not sufficient, the grantor retains title. You can use parol evidence to clarify
	Reformation of Deeds	- if does not represent parties' agreement bc of 1) mutual mistake, 2) scrivener's error, 3) unilateral mistake caused by misrepresentation or other inequitable conduct
	Delivery of deed	Title passes on delivery. Grantor must have intent to make deed presently effective.
	Retention of interest by Grantor or Confidential Delivery	- Retention of control or interest indicates lack of intent to pass title. - Express condition of grantor's death on title passing creates future interest if executed and delivered. - Conditions not contained in deed are ineffective.
	Transfer to 3P w/o conditions	- Valid delivery when grantor gives deed to 3P w/ instructions to give it to grantee - If grantor fails to give instructions, validity of will depends on whether 3P could be considered grantor's agent. If yes, then NO delivery.
	Transfer to 3P with Valid Conditions (Commercial Transfer)	- Valid conditional delivery when grantor gives to 3P w/ instructions to give it to grantee when conditions occur. - Parol evidence admissible to show delivery conditional
	Grantor's Right to Recover under conditional delivery through 3P	If condition not met and no enforceable K to convey, then Grantor may recover deed from 3P
	Breach of Escrow Condition under conditional delivery through 3P	title does not pass if grantee wrongfully gets deed from 3P before condition met and grantee cannot pass title.
	Transfer to 3P w/ Conditions (Donative Transfer)	Delivery is irrevocable
	Acceptance	Required by grantee to complete conveyance. Relates back to day of delivery
	Dedication	- Transfer of land to gov't - Must be accepted
	Covenants in general warranty deed	- Seisin - Right to convey - Against encumbrances - Quiet enjoyment - warranty - further assurances
	Covenant of Seisin	Grantor has the state she proposes to convey
	Covenant of right to convey	Grantor has the authority to grant
	Covenant against encumbrances	Physical or title encumbrances
	Covenant for Quiet Enjoyment	Grantee wil not be disturbed by 3P's lawful claim of title
	Covenant of Warranty	Grantor agrees to defend against r/able claims of title by 3P and compensate grantee for any loss sustained by claim
	Covenant for further assurances	Grantor will perform acts r/ably necessary to perfect title
	Breach of Warranty?	Sisin, Convey, and encumbrances breached ONLY at conveyance. QE, warranty, and assurances breached upon 3P claim
	Remote Grantees	Can sue up the line if there are successive conveyances by general warranty deed and last grantee is evicted by lawful claim.
	Statutory special warranty deed	Two implied assurances against acts of grantor: 1. That grantor has not conveyed same estate or any interest therein to anyone other than grantee. 2. Estate is free from encumbrances made by grantor.
	Quitclaim deeds	Grantor conveys whatever interest he has.
	Estoppel by deed	- If grantor purports to convey property she does not then own, subsequent acquisition of the estate will automatically inure to grantee. - BFP prevails over original grantee
	Recording acts, generally	Protect BFPs and protect grantee from BFPs Recording = notice --> no subsequent BFP
	Notice statutes	- Subesequent BFP w/o notice prevails over prior grantee that didn't record. - BFP prevails whether recorded or not
	Race-Notice Statutes	BFP prevails if no notice and BFP records before prior grantee
	Race Statutes	Whomever records first, regardless of notice.
	Transfers from BFP - SHELTER RULE	Person who takes from BFP will prevail against any interest BFP would have prevailed against. Even if transferee had actual notice of prior unrecorded conveyance.
	Purchaser under installment land K	Protected to extend of payment made.
	What kinds of notice are there?	- Actual - Record notice (chain of title) - Inquiry notice
	Record Notice	- recorded so that one searching could r/ably find - Held to this notice even if doesn't search - Deed in chain refers to instrument outside - notice
	Valuable consideration	Some pecuniary value.
	Conveyance of will by ademption	- Gift fails if testator does not own it a death - Land under executory K, beneficiary gets $$ from the sale - If property destroyed and insurance paid after T's death, benny gets $$ - If property condemned and JC paid after testator's death, benny gets JC
	Conveyance of Will and Lapse/anti-lapse statutes	If benny dies before testator, gift fails unless there's an anti-lapse statute.
	Crops (emblements)	- Conveyance of land generally includes all crops growing on it. Exceptions: - Crops already harvested or severed from the land - Crops planted by tenant during term of tenancy (tenancy must be of uncertain duration and terminated w/o tenant's fault)
	Types of security interests in real estate	- Mortgages - Deed of trust - Sale-leaseback
	Mortgage	- Debtor/note-maker is mortgagor - Lender is mortgagee - Remedy for default = foreclosure
	Deed of Trust	- Debtor/notemaker is trustor, gives trust to a 3P trustee who is usually closesly connected to lender (benny) - Lender instructs trustee to foreclose if default
	Sale-Leaseback	Owner sells property and then leases it from buyer
	Transfer by mortgagee	- Must transfer with Note
	Transfer of note w/o mortgage	- Mortgage automatically follows the note.
	Methods of transferring the note	Indorse and deliver. - This method makes transferee holder in do course if they meet reqs. Also can do it through separate written assignment
	What are the reqs for holder in due course?	- Note negotiable in form - Original note indorse and signed by named payee - Original note delivered to transferee - Transferee takes note in good faith and must pay value for it.
	Benefits of holder in due course status	Holder in due course takes the note free of any personal defenses of the maker, but is still subject to real defenses.
	Transfer by mortgage where grantee takes subject to mortgage: assumption	Grantee primarily liable and original mortgagor secondarily liable as surety.
	Due on sale clauses	Allows lender to demand full payment of loan if breach
	If you don't take it by assumption, what then?	Then you take it subject to, and the grantee is not personally liable.
	Lien theory	Mortgagee cannot take possession instead of foreclosing
	Title Theory	Can take possession instead of foreclosure
	Intermediate theory	Can take possession instead of foreclosure
	Redemption	Mortgagor can redeem property before foreclosure by paying amount due.
	Priorities of mortgage	- Determined by time mortgage recorded - Foreclosure destroys junior interest
	Modification of priority	- By recording statute if a prior mortgagee fails to record - Subordination agreement between Sr and Jr mortgagee - Modification of a senior mortgage - Granting of optional future advances by a mortgagee w/ notice of jr lien
	Purchase $$ mortgages	- Given eithre to seller as part of purchase price or to 3P lender. - Priority over non PMMs even if nonPmm recorded first.
	Proceeds of foreclosures sale	- Applied first to the expenses of sale, atty fees, and court costs - Next to principal and accrued interest of foreclosed loan - Then to jr interests - Last to mortgagor
	Deficiency judgments	If sale is not enough, personal COA against mortgagor
	Installment Land Contracts	- Remedy is forfeiture - Waiver: ----- cases hold that a vendor's pattern of receiving late payments constitutes a waiver of the right of strict performance -------- To reinstate strict performance, vendor must send purchaser notice of his intention and allow r/able time to make up late payments
	Lateral support	- Right to have the land supported in its natural state by enjoining land. - If land in natural state, SL if cause adjacent land to subside - If land w/buildings SL if land would collapse in natural state; otherwise show negligence
	Subjacent Support	Underground occupant of land must support the surface and its buildings. Liability for subsequently erected buildings requires negligence
	Water Rights	Riparian Natural flow R/able use
	Riparian	Water belongs to landowners bordering water. - Natural flow v. r/able use
	Natural Flow Theory	Cannot cause substantial or material diminution of quality, quantiy, or velocity of water
	R/able Use Theory	All owners share right of r/able use Do not interfere w/ otehrs - Balance Utility against harm.
	natural v. artificial use	natural trumps artificial under either theory
	Prior appropriation doctrine	First in time prevails as long as for beneficial use
	Groundwater (rights to diffuse underground water recovered through wells)	Absolute ownership doctrine: as much as you want for whatever purpose. R/able use doctrine: export only if no harm to others w/rights to aquifer Correlative rights doctrine (CA approach): R/able amount for own use. Owners of overlaying land own underground basin as JTs Appropriative rights Doctrine: First to use prevails
	Surface waters	- Can use water on your property for any purpose - Liability for redirecting water that causes damages
	Natural Flow theory to surface water	Cannot alter natural drainage
	Common enemy theory	Can take action to get rid of water Cts prohibit unnecessary damage to others' land
	R/able use approach to surface water	Balance utility v. harm
	Rights in airspace	To a r/able height
	Right to exclude - remedies of possessor	Trespass, private nuisance, continuing trespass, ejectment or unlawful detainer
	Cooperatives	Title held by corp that leases individual spaces to shareholders
	Condominiums	Each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas
	Zoning ordinances	- Limited by due process and equal protection claus and takings clause - Cities and counties can exercise zoning only if authorized by state enabling act.
	nonconforming use w/ zoning reg	use existing when ordinance passed that does not conform to law cannot be automatically eliminated.
	Special use permit	Must obtain for intended use
	Variance	Departure from ordinance granted by gov't
	Zoning ordinance and Takings	If it decreases too much is taking. - Denial of all economic value = taking - Denial of nearly all economic = balancing test
	Balancing test for zoning taking	Social goals of regulation, diminution in value, and owner's r/able expectation for use of the property.
	Exactions	- Demand in exchange for zoning approval that landowner give up some land for public purpose.
	When are exactions unconstitutional?	unless gov't proves: 1. demands rationally connected to add'tl burden project will place on public (essential nexus) AND 2. Dedication is r/ably related in nature and extent to the impact of the proposed development (Rough Proportionality)
	Remedy for takings and exactions	JC or terminate ordinance and pay damages

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