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222 Cards in this Set
- Front
- Back
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What is a Joint Tenancy?
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Form a co-owernship between two or more persons of an interest in real property wherey such persons own the interest together and each has exactly the same rights in that interest-right of survivorship
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What are the 4 unities required for joint tenancy?
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PITT
1)poession -right to use whole property 2) Interest-same interest 3) Title - same instrument 4) Time - interest acquired same time |
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What is survivorship?
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On the death of the joint tenancy, interest terminates automatically and the estate is held outright by the surviving joint tenantss.
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How can joint tenancy be terminated?
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1) Severance by conveyance (tenants in common)
2) Mortgage- (Title-destroys unity) (Lien Theory-no severance surviver takes subject to mortgage)one joint tenant cannot unilaterally execute a mortgage over entire interest only his half 3) Lease (c/l=severance) Modern no severance |
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What is a tenancy in Common
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Each co-tenant is the owner of an undivided interest in the whole. Only the unity of possession is required tha teach co-tenant has equal right to use, occupation, and enjoyment of the property. NO RIGHT TO SURVIVORSHIP exists- Upon death passes under his will
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How can a tenancy at common be terminated?
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A tenancy in common can be terminated by a jurdical action of partition, tenants joining to sell or dispose of property
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What is Tenancy by Entirety?
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Similar to joint tenancy except it is created in a husband and wife. Right to survivorship exists and on the death of eaither spouse the survivor takes the whole
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What facts must be considered for Tenancy by Entirety?
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1) The four unities (PITT)
2) can not be unilaterally terminated 3) must be husband and wife 4) severance is limited to divorce, death, mutual agreement, execution by joint creditor |
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What are the rights and duties amoung Co-tenants?
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1) no adverse possession unless ouster
2)out of possession no right to share in profis -rent profits yes 3)Repairs are at the election of co-tenants 4) Any improvements must be recouped only in anaction for partition but recovery is limited to increased value if any 5) Taxes/mortgages share in proportion to ownership share |
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Fee Simple Absolute
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An estate which has the possibiilty of enduring forever with no limitations on inheritance; cannot be divested.
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Fee Simple Defeasible
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An estate which has the potential of infinite duration. However the interest can be terminated on the happening of some event
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Life Estate
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An estate which will terminate on the death of some life, defeasible or absolute freehold estate, current possessory interest with seisin may be present or future interest
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What is Pur Autre vie
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Estate measured by the life of another
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What is an estate for years
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Tenancy where the beginning and the ending of the tenancy is known
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Fee tail
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A fee simple estate with the possibility of enduring forever limited to inheritance to the lineal decendants of the body of the grantee
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Dower
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What the wife will receive folling the death of her husband is a life estate in one-third of all the lands of which he as seised in fee simple or fee tail. (Think dower when question talks about husband dying before wife dies)
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What is a future interest?
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An interest which is capable of becoming present possessor at some future time
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Remainder
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If a future interst capable of becoming possessory immediately upon the natural termination of the preceding freehold estate
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Executory interest
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If a future interest which is not a remainder
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What is a vested remainder?
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Remainder in an ascertained person, with no conditions precedents
1)absolute vested 2) subject to partial divestmenbt 3) subject to total divestment |
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Contingent Remainder
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Remainder to an unascertained person or an ascertained person with a condition precedent
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What is the Shelly's Case
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If one instrument creates a life estate or fee tail and also attempts to create a remainder in favor of the grantee's heirs and where both estates are either legal or equitable, the remainder becomes a remainder in the grantee(shelly=grantee)
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What are the technical rules re: future interest?
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Shelly - Shelly Case
Must -Merger Walk -Worthier Title Down- Destruction of Contigency Remainders Purfoy's - Purfoy's v Rogers Road - RAP |
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What is merger?
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Whenever there are two successive vested estates of the same lan owed by the same person, the smaller of the two estates will be absorbed by the larger and become on.
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What is Worthier Title?
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Prohibits remainder and executive interest in heirs of grantor. They must take by descent and not by purchase. (Worthier = Grantor)
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What is Destructibility of Contingent Remainders?
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IF the contingent remainder did not vest at the expiration of hte preceding freehold estate, then it is destroyed
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Purfoy v. Rogers Case
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Where it can be a contingent remainder it must be a contingent remainder
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RAP
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Prohibits remote vesting unreasonable restraints on alientation - No interest is good unless it must vest, or fail to vest, IF AT ALL within 21 years of some life in being at the creation of the interest.
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Does RAP apply to Contingent remainders, executory interst, or class gifts?
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No.
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What is the ferile Octogenanan Rule?
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90 year old may be capable of having more children
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Class gift
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If one member of a class cannot take, none can take. Class gifts are considered unitary the intention of the grantor was to give to all memebers of the class as a whole. His intent would be defeated by allowing some members to gake while disallowing others. If invalid gift = void, think reversion
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Adverse Possession (HOAC)
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Adverse possession seeks to bar the original owner from possession and vested perfect title in the adverse possosser as if he/she took by will or deed
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What are the requirements for adverse possession?
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1) Hostile
2) Open and notorious 3) Actual 4) Continuous |
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Hostile
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Possesor must have intended to claim the land as his own, in derogation of the rights of someone else including the true owner
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Open and Notorious
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Possession must be of such a character as to put the right owner on notice that he had better act to protect his property
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Actual
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The using of the land consistent with the character of that particular paracel as the original owner might have
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Continuous
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For the statutory period of 20 yaers at common law. Dependent on the nature of the property.
2) Tacking - where the adverse possossor can tack onto his own period of adverse possession |
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With is the color of title?
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Adverse possessor entered pursuant to some written instrument that purported to convey him title to the land but for some unknown reason and unknown to the claimant the instrument is defective and does not in fact convey anything. This is generally held to satify the hostile intent requirement if ther claimant has a good faith belief in the deed. Adverse possession to entire property
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What is without color of title
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The claim extends only to such part of the land actually occupied
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What happens if the owner is a disability?
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If the owner was under a disability to sue at the time that the adverse possessor went onto the property, the statute of limitatins is tolled as long as that disability continues
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What are some examples of disabilities?
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1)infancy, insanity, imprisonment
2) can not tack disability 3)can not adverse possess against a future interest unless the future interest is created subsequent to the initial adverse possession |
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What are the 5 step approach to Landlord/Tenant Relations?
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1) Common Law/Modern Law distinctions
2) Type of tenancy involved 3) Duties to the landlord 4) Duties to the tenant 5) Assignment/sublease problem |
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Tenancy for Years
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An estate for years is one in which the beginning and end of the estate are fixed from the outset. It may be for days, weeks, or years. The distinguishing characteristic is that the parties usually know precisely when the tenancy will terminate and this tenancy expires automatically at the end of the stated term without either party giving notice
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Tenancy for Years - Statute of Frauds
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1) common law requries 3 years in writing
2) Modern law requires over one year in writing 3) oral does not comply with SOF moving in transforms the estate to a tenancy at will-payment according to schedule turns to periodic tenancy |
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Periodic Tenancy
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Estate which continues from year to year or for successive periods of a year, until termination by proper notice by either party
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How is a periodic tenancy created
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By express agreement By inference of rental payment as specified periods
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How is a periodic tenancy terminated?
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Notice is required. At common law the notice had to be the same length as the rental period, although never to exceed six months. Modern law 30 days
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Tenancy at will
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An estate which is terminable at the will of either party.
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How is a tenancy at will created?
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By an express agreement, operation of law-previous lease terminated
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How do you terminate a Tenancy at will
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1) common law - no notice required
2) modern law- written notice 30 days in CA 3) by operation of law death/reversion |
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Tenancies at Sufference
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Where a tenant who rightfully entered the possession remains wrongfully in possession after the termination of his tenancy. Landlord must step in and evict
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What are the landlords remedies in Tenancies at sufference?
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1) eviction process
2) Consent 3) Hold tenant liable for reasonable rent value under quasi-contract |
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What are the 5 duties of the Landlord?
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1) Delivery of Possession
2) Covenant of quite use and enjoyment 3) Deliver habitable premises 4) Duty to repair 5) Tort Liability |
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Delivery of Possession
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Common Law- tranferred the legal right to possession
2) Modern Law- The landlord has a duty to deliver actual possession as well as a duty to transfer legal right to possession 2) Modern Minority- landlord not in default when previous tenant continues wrongfully to occupy the premises |
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Landlord's Covenant of quiet use and enjoyment
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Is implied in the lease tha the landlord will not interfer with the possessory rights of the tenant
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Landlord's breach of the covenant of quite use and enjoyment
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Actual eviction- tenant physically eviction rental obligation cease
partial physical -landlord enters the premises partially-all rental obligations cease Partial physical eviction by paramount title holder- apportionment of the rental obligation is permitted |
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What is constructive eviction?
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1)there must be a subtantial inteference of the covenant
2) general rule is that the landlord or his agent must be at fault 3) tenant must vacate the premises to claim constructive eviction |
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Landlord's duty to deliver habitable premises?
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Common law - no duty; unless short term lease furnished
Modern Law- There is an implied covenant of habitability which imposes upon the landlord an affirmative duty to keep residential premises sin a tenantable condition prior to the leasing in regards to lighting, plumbing, and heating |
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Does the covenant to deliver habitable premises apply to commerical leases
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No.
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What the remedies for breach of the duty to deliver habitable premises?
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1) Tenant remains damages and apportionment of rent will be determined
2) Rent abatement 3) Repair and deduct 4) move out under the theory of constructive eviction |
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What is retalitory eviction?
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Common law- landlord could evict with very little use of discretion
Modern Law - the landlord's right to terminate has been limited where he is motivated by a desire to retaliate against the tenant for some act which was not a breach of the lease |
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What is the landlord's duty to repair?
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Common law- no duty.
Modern Law The court have implied a continuing covenant of habilitability. Landlord is required to keep the premises in such repair. |
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What are the remedies for breach of duty to repair?
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1) constructive eviction
2) Repair and deduct 3) Rent abatement |
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Landlord's tort liability?
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Common Law- no tort liability
Exceptions: 1)Latent defects 2) Common passage way and common areas 3) public areas (make safe known unsafe conditions) 4) Protection |
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Landlord's tort liability under modern law?
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THe landlord is liable for injuries sustained as a result of his failure to remedy unsafe conditions
1) implied covenant may establish tort duty |
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What are the 2 duties of the Tenant?
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1) Pay rent
2) Duty to repair/doctrine of waste |
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Pay rent means:
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1) Supervening illegality/frustration of purpose- withdraw terminate his rent liablity
2) destruction of the premises- total destruction or partial destruction of a material part of the premises through the fault of landlord - no duty to pay rent 3)Eminent domain_ if the leased premises are totally condemned for the entire rental period the tenant is relieved of his rental obligation |
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What are the 2 landlord remedies re: tenant breach of duty to pay rent?
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1) bring suit evict
2) abandonment |
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Abandonment- the landlord has 4 options.
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1) Common law - premises lay idle and sue for rentsas it comes due
2) relet premises 3) accept the tenant's abandonment which is surrender - requires writing 4) Landlord can sue under breach of contract |
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Tenant's duty to repair?
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Tenant has a duty to make ordinary repairs
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Affirmative Waste
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Intentional/negligent damage to property in the way of destruction, alteration or exploitation
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Permissive Wast
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Failure to take reasonable measures to protect the premises form damage.
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Ameliorating Waste
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Change - may be permitted to a set off for money owed to landlord
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Fixtures
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Personal property = becomes real property
Common Law - any improvement was a gift - no longer personal property Modern Law- tenant can remove any chattel he installs so long as he pays for removal damage, unless removal causes irreparable harm |
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Trade Fixtures
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exception, in that they are fixtures for the purpose of carrying on a trade or business may be removed although the tenant must repair any and all damage caused by the removal
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Absent an expressed agreement in the lease can a tenant freely assign ans sublet?
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Absenet an express agreement in the lease, a tenant may freely transfer his interst in the leaasehold in whole or in part
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Assignment
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A complete transfer of all interst in a leasehold
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Sublease
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A partial tranfer of an interst in a leasehold.
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Subleas conflict
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Where the lease reserves a contingent reversionary interest, a right of entry for failure to pay rent
c/l = creates an assignment M/L=sublease |
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What are the elements of an assignment and/or sublease
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1) Privity of contract: a legal relationship between landlord and tenant (signing of lease)
2) Privity of estate- where landlord has a reversionary right and lesee has a right to possession. (moving onto the premises) |
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What is the general rule for the duty to pay rent?
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The general rule is that the original landlord or successor can sue any person for rent who is either in privity of contract or estate, privity by covenant or contractual obligations
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What is the assignment relationship between Landlord/Tenant
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Original tenant remains liable for the rent in the event that the assignee fails to pay rent because the original tenent is still in privity of contract with the landlord
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What is the assignment relationship between Landlord/Assignee
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The assignee comes into privity of estate and is personally liable to the landlord for the rent regardless if mentioned or not in the lease. The assignee is liable only for the rent accuring during the tenancy
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What is the only way a tenant can be released from privity of contract?
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Novation
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Is a subleasee personally liable to the landlord for rent?
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Subleasee not personally liable to the landlord for rent. There is no privity of estate or contract between them
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How does the landlord terminate a sublease relationship?
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Landlord can terminate and oust for failure to pay rent to the sublessor
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Does the original tentant (subleasee) remain in privity of contract and estate with landlord?
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Original tenant remains in privity of contract and estate with the landlord and therefore is totally responsible to the landlord. (3rd party bene)
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Are covenants against assignments and subletting strictly construded agains the landlord?
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Yes, covenants are strictly construed against the landlord. A covenant not to assign is not a prevention against the sublease.
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Rule in Dumpor's Case
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The landlord's express consent to one assignment or sublease destroy's the convenant as to all further restrictions. One waiver is a waiver for all.
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Covenants running with the land
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A covenant is a promise to do or refrain from doing a certain thing, and it may therefore be negative or affirmative
1) intent that the convenant run with the land to successors in interest 2) the covenant must touch and concern the land 3) there must have been privity of estate |
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Rule in Spencer Case
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If the covenant concerns a thing which is not in exisitence at the time the covenant is made, but is to be built or created thereafter the covenant will not bind the assigns unless they are expressly mentioned
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Assumption Of covenants
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Assumption of covenants of the master lease by one who is under no obligation to do so will bind through privity of estate
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Sufficient memorandum (DDIP)
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1) all memos must be signed by the party to be charged
2) all terms must be defined and certain a) description of land location b) indenification of parties c) purchase price d) matter of payment If memo is insufficient - sue for specific performance |
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Doctrine of partial performance
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The doctrine of partial performance permits certain oral contract to be taken outside the purview of the statute provided certain elements are met:
1) partial payment 2) possession 3) valuable improvements |
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Estoppel to plead statute
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Hardship alone may remove an oral contract from the statute under the theory of estoppel
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Detrimental reliance
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The plaintiff must establish reliance which caused a change in possession
2) unreasonable result would occur by the non-enforcement of the contract |
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Modification
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All modifications from the original contract must be in writing
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Time is of the essence
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Generally time is not of the essence unless expressly stated in the contract
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Implied - marketable title
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In every contract for the sale of land is a covenant that the title is reasonably free from title defects
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Quitclaim Deed
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Although the title must be marketable, the buyer takes the risk in obtaining only those rights from the seller had at that point in time
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Adverse possession
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Generally will not render the title unmarketable. The problem her is that one cannot convey color of title.
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Land Sale Contract
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Title is still in the vendor until law day. Law day is where the grantor must come forward and deliver marketable title
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Defects which render a title unmarkeable
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1) encumbrances
2) mortgagaes 3) assessments 4) dower 5) easements 6) covenants currently in breach 7) zoning - limited circumstances |
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Doctine of equitable conversion
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At the moment the contract occurs, equitable conversion will vest equitable title of the land in the buyer, leaving the seller holding bare title as security for the buyer who holds the balance of the purchase price as security for the seller
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Problems with Equitable Doctrine
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1) Vendor dies - personal property go to administrator of his will
2) Vendee dies - real property will go to heirs |
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Risk of Loss
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Who should bear the risk of loss when the property is damaged or destroyed when the contrsct is in the executory stage?
Majority rule - absent any statute, the risk of loss falls on the vendor Minority - Absent any statute the risk of loss falls on the vendor CA - If the vendee takes either title or goes into possession he assumes the risk of loss. If neither one occurs the risk of loss still remains on the vendor |
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Insurance issues
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Even in the event the property is destroyed by fire and the vendee was under the obligation to insure the property until the contract became executed, the vendor will not be allowed to recover the insurance proceeds and still hold the vendee liable for the purchase price
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Option
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If the option is exercised before either the owner of the vendee dies then the rule of equitable conversion applies. IF the optionis exercised after the owner dies the will takes precedent and his heir has the same rights and duties as if the vendee dies before the option is excercised
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Doctrine of Related Back
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The English view - relates back to the time of execution thus the property would pass as personal property to the administator
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Mortgage
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A device to secure payment of a debt by the borrower (mortgagor/debtor) to the lender (mortgagee) who may either be the seller of the property or a bank or other third party. ON default the mortgage has the right to sell the property at a judicial foreclosure in order to satisfy the debt from the sale proceeds
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Deed of trust
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A land security devise in which the debtor (trustor) transfers title to a third party (trustee) typically designed by the lender (bene). On default the beneficiary asks the trustee to sell the property to satisfy the debt by either
1) judicial foreclosure sale 2) private sale |
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Installment land contract
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The debtor is the purchasewr of the land who signs a contract with the vendor, agreeing to make regular installment payments until the full contract price accursing interest has been paid.
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Sale - leaseback
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A landowner needing to raise money may sell her land to another for cahs and may then lease the land back for a long period of time.
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Effect of a transfer by the mortgagor
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1) If the mortgagor transfer property "subject: to the mortgage, the new transfee is not personally liable on the mortgage.
2) if the transferee "assumes the mortgage" then the new transferee is personablly liable on the mortgagae (debt) |
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Effect of tranfer by the mortgagee
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The transferee on the mortgagee's interest "stands in the shoes of the original mortgagee
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Risk of loss
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Who should bear the risk of loss when the property is damaged or destroyed when teh contract is in the executory stage:
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Risk of loss - Majority Rule
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Absent any statute, the RISK of loss falls on the vendee
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Risk of loss - Minority Rule
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Absent any statute, the RISK of loss falls on the vendor
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Risk of loss - California
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Uniform vendor and Purchaser act: the the vendee takes either title or goes into possession he assumes the risk of loss. If neither one occurs, the risk of loss still remains with the vendor
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Insurance Interest
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In the event the property is destoryed by fire and the vendee was under the obligation to insure the property until the contract became executed, the vendor will noo tbe allowed to recover the insurance proceeds and still hold the vendee liable for the purchase price
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Doctine of related back
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Relates back to the time of execution thus the property would pass as personal property to administator
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Effect of transfer by the morgagor
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If the morgagor transfers property, subject to the mortgage the new transferee is not personally liable on the mortgage (debt)
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Effect of transfer by the mortgagee
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The transferee of the morgagee's interest "stands in the shoes" of the original mortgagee
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Rights on default
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1) On default the mortgagee may foreclose on the property and sell it to satisfy the debt.
2) On default priorty to the proceeds is primarily determined by time (junior) later intersts in the land are destroyed by the foreclosure sale. Senior( ealier) interest remain and the property is taken "subjec" to the senior interests 3) If there are insufficient proceeds to pay off the mortgage the mortgagee may get a deficiency judgment against the mortgagor personally |
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Redemption
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The purcahser of the property succeeds to the rights of all parties at the first sale.
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Effect of recording
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Since most state statutes make morgages recordable intersts in land for which the mortgagee has paid value the protection of the recording acts typically to apply to mortgages
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Deed Mental Check list
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1) content
2) delivery 3) recording act 4) Covenants of title 5) title insurance |
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What is a deed?
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A deed today is the normal and ordinary way of transfering an interest in real estate
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Contents
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1) deed must be evidenced by writing and signed by the grantor.
2) the deed must ID both the grantor and grantee 3) the land must be conveyed by operative words "I hereby.." 4) the deed must contain an adequate description of the land |
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Deliver of the deed
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One cannot make a conditional delivery to the grantee in writing. The delivery must be absolute. The intent rather than mere physical possession is the controlling factor. Grantor must have the present intent to tranfer title. Look to the grantor's words or conduct. Parol evidence is always permittted to prove intent or lack of intent
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There are three methods of delivery
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1) delivery to grantee
2) Escrow -delivery to a third party a) commerical b) Donative escrow 3) Doctrine of related back 3) |
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Doctrine of related back
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Setting: escrow agreement exists and the grantor dies before all conditons have been met. Should the vendee continue to perform? The doctrine states that upon the fulfillment of all the conditions title will revert back to the point in time the deed wad deposited in escrow and transaction will occur
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Cases where doctrine applies
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(to avoid rule that mut pass before dealth)
1) grantee dies 2) if grantor becomes incompetent Rational- to do justice and equity |
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Recording acts = general rule
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All prior interest in the land are void if not duly recorded as to the subsequent takes who purchase for value
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What is duly recorded?
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1) to be deposited in the proper recording office
2) the instrument must be properly executed 3) the instrument must be acknowledged |
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What is a BFP
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In order to be a BFP one must be a subsequent purchaser who by acting in good faith purchases for valuable consideration without notice (exception race statute)
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What constitutes a NOTICE (3)
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1) Actual notice - first hand information of a prior purchaser
2) Constructive notice - if the prior purchaser records his deed and it falls within the chain of title the BFP is changed with notice whether the recording instrument is searched or not 3) Inquiry notice - Essentially deals with activities on the particular land in question. |
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Types of recording statutes (4)
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1) Notice
2) race 3) race notice 4) common law |
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Notice Statute
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The essential requirement here is at the time the BFP purchased he was without notice as to any prior purchasers
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Race Statute
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Recording first takes priorty irrespective of notice as to prior purchaser
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Race Notice Statute
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All deeds are invalid which are not duly recorded as to subsequent takers who pruchase for value consideration and without notice and record first
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Common Law
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First in time first in right
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What are the two methods of recording indexes?
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1) grantor-grantee/grantee-grantor
2) tract index - here all transactions are recorded according tot he particualr piece of property in question |
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Chain of tile problems - wild deed
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B granted a deed from A (grantor) who is not connected to the chain of title
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Chain of title problems - Sheler Rule
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A non BFP who takes form a prior purchaser for value without notice will be sheltered by the BFP
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There are three methods of delivery
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1) delivery to grantee
2) Escrow -delivery to a third party a) commerical b) Donative escrow 3) Doctrine of related back 3) |
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Doctrine of related back
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Setting: escrow agreement exists and the grantor dies before all conditons have been met. Should the vendee continue to perform? The doctrine states that upon the fulfillment of all the conditions title will revert back to the point in time the deed wad deposited in escrow and transaction will occur
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Cases where doctrine applies
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(to avoid rule that mut pass before dealth)
1) grantee dies 2) if grantor becomes incompetent Rational- to do justice and equity |
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Recording acts = general rule
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All prior interest in the land are void if not duly recorded as to the subsequent takes who purchase for value
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What is duly recorded?
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1) to be deposited in the proper recording office
2) the instrument must be properly executed 3) the instrument must be acknowledged |
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What is a BFP
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In order to be a BFP one must be a subsequent purchaser who by acting in good faith purchases for valuable consideration without notice (exception race statute)
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What constitutes a NOTICE (3)
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1) Actual notice - first hand information of a prior purchaser
2) Constructive notice - if the prior purchaser records his deed and it falls within the chain of title the BFP is changed with notice whether the recording instrument is searched or not 3) Inquiry notice - Essentially deals with activities on the particular land in question. |
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Types of recording statutes (4)
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1) Notice
2) race 3) race notice 4) common law |
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Notice Statute
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The essential requirement here is at the time the BFP purchased he was without notice as to any prior purchasers
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Race Statute
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Recording first takes priorty irrespective of notice as to prior purchaser
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Race Notice Statute
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All deeds are invalid which are not duly recorded as to subsequent takers who pruchase for value consideration and without notice and record first
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Common Law
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First in time first in right
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What are the two methods of recording indexes?
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1) grantor-grantee/grantee-grantor
2) tract index - here all transactions are recorded according tot he particualr piece of property in question |
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Chain of tile problems - wild deed
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B granted a deed from A (grantor) who is not connected to the chain of title
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Chain of title problems - Sheler Rule
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A non BFP who takes form a prior purchaser for value without notice will be sheltered by the BFP
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Chain of title problem- Clean hands or wash through doctrine
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A non BFP cannot convey to a BFP and then have that BFP reconvey back. The rationale is since the non BFP had prior notice he cannot be sheltered from a subsequent purchaser who acts in good faith and purchases for value consideration and without notice
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Chain of title problems - Stand on your owne BFP for value
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Where a BFP for value and without notice takes from a non BFP who has notice of a prior conveyance the subsequent purchaser can stand in his own right as a BFP for value
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Chain of title problems - Estoppel by deed
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after acquired title doctrine (find better def)
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General warranty
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warrants against all title defects arising before and during the time grantor had title (contains all six covenants)
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Special warranty
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Only warrants the defects arising during the grantor's possessoin. If contains all six covenants. Grantor guarantees that he has done nothing to make the title defective
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Quitclaim deed
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Here the vendor conveys only those rights he had at that particular point in time
1) no covnenats 2) no implicaton the property is free and clear |
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Covenant of seisin (breach at outset)
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The covenant of seisin is a present covenant whereby the grantor has an indefeasible estate both of quality and quantity and consisting on both title and possession
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Covenants against encumbrances (breach at outset)
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Like seisin it is a present covenant. It is an oustanding legal interest which diminishes the value or restricts the use of the land but does not affect the estate granted
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The right to convey (breach at outset)
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This is a present covenant where the grantor has the power to make the conveyance. The guarantee grantee that grantor owns what he purports to convey
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Quiet use and enjoyment (breach in future)
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a future covenant where the grantor guarantees to the grantee that the right to peaceful and quiet possession, without interference from the vendor or anyone else claiming paramamount title
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Covenant for further assurance (breach in future)
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Usually a promise by the grantor that he will not make any future conveyances that would divest the title held by the grantee
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General warranty (breach in future)
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covenant to defend grantee against all lawful claims which would evict actually or contructively
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Present breach
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1) all covenants breached at outset
2) eviction not necessary 3) statute of limitations run immediatley 4) Majority - covenant don't run to subsequent grantee's 5) damages usally purchase price (seisin) plus interest |
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Future breach
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1) breach in future
2) breach by eviction (can be constructive) 3) statutue of limitations runs from time of eviction 4) covenants run with the land as long as privity of estate exists |
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Damages on future convenants
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1) majority - limits damages to purchase price at time land bought plus interest and cost to defend title
2) Minority - buyer gets damages equal to value of land at time of eviction |
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Lawyer - Title Policies
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A wants to buy Blackacre from O. He hires a lawyer to search the records. In addition to giving A his opinion as to the title, the lawyer furnishes the abstract of the record to a title insurance company on the basis of this abstractt the compnay insures title
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Title - Plant policies
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Many title insurance companies have a separate title plant, which a tract index and carry out their own indenpendent title search. The lawyer does not search title for them
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Affirmative easement
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The right to make an affirmative use of another's land
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Negative easement
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This restricts one's right usually in hisuse of his ownland, ie light air, view, lateral/subjacent support, and free flow of water. Note negative easements cannot arise by implication or prescription and are always appurtenant
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Easement Approach
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1) creation
2) characteritics 3) scope 4) termination |
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Creation of an easment
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Express - since an easement is an interest in land, it falls within the purview of the statute of frauds, and therefore must be in writing
a) statute of fraud b) doctrine of part performance c) sufficient memorandum |
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Easement by grant
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1) dominant estate-grantee
2) servient estate - grantor |
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Easement by reservation
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1) dominant estate -grantor
2) servient estate -grantee |
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Implication
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Easement by implication are created by operation of law and thereafore do not fall within the purview of the statue of fraud.
elements: 1) common grantor 2) easement was in existence prior to the severance of title 3) apparent 4) Continuous 5) reasonably necessary |
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Implication - Necessity
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Usually involves a landlock situation where there is no reasonable means of ingress or egress to the property
1) common grantor 2) necessity (strick/reasonable) 3) continuous - as long as necessity exists |
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Prescription (HOAC)
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An easement by prescription is based on the theory of adverse possession
1) Hostile 2) Open and nortorious 3) actual 4) continuous for a statutory period of time |
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Hostile
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The use must be without the owner's consent which indicates an indifference toward his rights as a property owner
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Open and notorious
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It must be open and put the world on notice
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Actual
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Use must be made in order to determine the scope of the prescriptive easement
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Continous for a statutory period of time
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At common law, 20 years, continious does not have to mean everyday but rather use which is natural with the way the original owner would have used the property
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Appurtenant (Easement)
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a) elements
1)must involve two pieces of land 2) the intent here is to benefit the land not the personal individually b) dominante estate: land that is enhanced by the use of the easement c) servient estate: those whose use is curtailed by the easement |
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Appurtenant (Easement)
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a) elements
1)must involve two pieces of land 2) the intent here is to benefit the land not the personal individually b) dominante estate: land that is enhanced by the use of the easement c) servient estate: those whose use is curtailed by the easement |
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In Gross (Easement)
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a) elements
1) must involve one piece of land (no dominante estate) 2) the intent here is to enhance the individual's right rather than some specific piece of land b) exclusive (bene has the sole right to enjoyment c) non-exclusive (use enjoyed by bene and servient owner examples - public telephone, gas lines, cable lines |
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In Gross (Easement)
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a) elements
1) must involve one piece of land (no dominante estate) 2) the intent here is to enhance the individual's right rather than some specific piece of land b) exclusive (bene has the sole right to enjoyment c) non-exclusive (use enjoyed by bene and servient owner examples - public telephone, gas lines, cable lines |
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Termination of Easement
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1) condition rearch
2) written release 3) merger 4) abandonment 5) adverse use prescription 6) destruction of the servient estate 7) estoppel 8) necessity 9) improper or excessive use 10) recording acts 11) condemnation |
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Condition reached
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Easement may terminate when a condition of time or an event has been reached
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Written release
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must be in writing to satisfy the statute of fraud
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Merger
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Appurtenant easement is terminated when dominate estate acquires the servient estate in fee
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Termination of Easement
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1) condition rearch
2) written release 3) merger 4) abandonment 5) adverse use prescription 6) destruction of the servient estate 7) estoppel 8) necessity 9) improper or excessive use 10) recording acts 11) condemnation |
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Abandonment
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Words alone are not sufficient however, non use accompained with a manifested intent to abandon will sufficient, the railroad quits running its train or removes its tracks
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Adverse use by prescription
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The easement may be terminated by adverse use for the prescription period eg X builds a wall across Y's easement for the statutor period
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Destruction of the servient estate
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This involves an easement within the structure eg a stairway. If the structure is destroyed by no fault of the servient tenant, the easement is also destroyed
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Estoppel
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If the servient estate has relied on the non-use to his detriment, the easement may be extinguished eg X builds a garage on train tracks relying on abandonment which was expressed by dominant tentant
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Necessity
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Easement ends when necessity ends for easement by necessity only
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Improper or excessive use
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Does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse. Reasonable use of hte easement may continue
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Condition reached
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Easement may terminate when a condition of time or an event has been reached
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Written release
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must be in writing to satisfy the statute of fraud
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Merger
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Appurtenant easement is terminated when dominate estate acquires the servient estate in fee
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Abandonment
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Words alone are not sufficient however, non use accompained with a manifested intent to abandon will sufficient, the railroad quits running its train or removes its tracks
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Adverse use by prescription
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The easement may be terminated by adverse use for the prescription period eg X builds a wall across Y's easement for the statutor period
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Destruction of the servient estate
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This involves an easement within the structure eg a stairway. If the structure is destroyed by no fault of the servient tenant, the easement is also destroyed
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Estoppel
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If the servient estate has relied on the non-use to his detriment, the easement may be extinguished eg X builds a garage on train tracks relying on abandonment which was expressed by dominant tentant
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Necessity
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Easement ends when necessity ends for easement by necessity only
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Improper or excessive use
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Does not terminate the easement. The appropriate remedy for the servient owner is an injunction against the misuse. Reasonable use of hte easement may continue
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Recording Act (servient estate)
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This situation deals with the conveyance of the servient estate. IF the BFP takes without notice he will take free from the encumbrance for express easements only and only if easements recordable
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How are PROFITS created?
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1) express profits must be in writing
2) profits can be created by prescription |
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Appurtenant - Profit
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Passes with dominent tenant (divisible). When the dominant estate is subdivided, the profit may be used by each of the transferees; servient estatr must not be surcharged(overburdened) by transfer of profit or it will be extinguished
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Gross - Profit
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Exclusive the sole right exists tothe dominant tenent even the owner of the servient estate cannot take from the profit
2) may be assigned but not divisible (apportioned) |
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Termination of Profit
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Excessive use of a profit extinguishes profit
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What is a license?
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Privilege to go upon the land of the licensor (prevents trespass and my be oral or written)
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Revocation of a license
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A license since it creates no binding interest in land is revocable at will
1) death of licensor 2) death of licensee 3) attempted assignment of a license |
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Irrevocable license
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A license may be irrevocable eg X builds a pier and rents boats when a license allowed him to use the lake in renting the boat.
1) when the license involves a substantial investment with reliance the landowner may be estopped from revocoking the license |
