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181 Cards in this Set
- Front
- Back
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The Fee Simple Absolute: Creation |
"To A" or "To A and his heirs"
ALTHOUGH today "To A and his heirs" are not strcitly needed |
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The Fee Simple Absolute: Charecteristics |
This is absolute ownership of potentially infinite duration. It is freely devisable (pass by will), decendible (can bass by the statutes of intestacy if there is not will), and alienable (freely transferable during holder's lifetime)
Future Interest: NONE |
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Does a living person have heirs? |
NO! A living person has no heirs, while A is alvive he has only prosepective heirs and they are powerless |
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Fee Tail: Creation |
"To A and the heirs of his body" |
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Fee Tail: Charecteristics |
Virtually abolished today, but historicallyu it meant that the land would only pass to the grantee's lineal blood decendents
TODAY: This is a fee simple absolute |
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The Fee Simple Determinable: Creation |
"To A so long as..."
"To A for so long as..."
"To A during...."
The grantor must use clear durational language and if that condition is violated the grantee automatically forfiets the land |
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Fee Simple Determinable: Characteristics |
Devisable, descendible, and alienable but always subject to the condition
Future Interest: The grantor in these situations has the possibility of reverter (gets the land back if condition is not met)
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How much of your property interest can you convey? |
You can always convey less of what you started with but you cannot convey more |
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Fee Simple Subject to Condition Subsequent: Creation |
"To A, but if X event occurs, grantor reserves the right to reenter and retake"
Requires BOTH that the grantor use
Clear durational language
Carve out the right to renter and reetake (must be EXPLICIT) |
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Fee Simple Subject to Condition Subsequent: Charecteristics |
This estate is NOT automatically terminated upon the occurence of the stated condition BUT the grantor can cut it short if the condition occurs and he so chooses
Future Interest: Right of entry which is the power of termination |
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Fee Simple Subject to Executory Limitiation: Creation |
To A, but if X occurs, then to B
A has: a fee simple subject to B's shifiting executory interest
B has: a shifting executory interest |
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Fee Simple Subject to Executory Limitiation: Characteristics |
Similar to fee simple determinable
If the condition is broken the estate is automatically forfieted in favor of the party designated as opposed to the grantor
Future Interest: Shifiting Executory Interest |
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Effect of words of mere desire, hope, or intentsion |
Insufficient to create a defeasible fee -- the court disfavors restrictions on free land use and there the court WILL NOT find a defeasible fee unless there is clear and explicit durational language |
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Effect of absolute restraints on alienation |
VOID: an absolute restraint on alienation is an absolute ban on the power to sell or transfer that is not linked to a reasonable time limited purpose |
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The Life Estate: Creation |
"To A for life"
A is the life tenent
O has reversion when A's life ends the estate reverts back to Grantor and his heirs
CONTRAST: An instrument that explicitly creates a term of years -- this is a leashold interest and not the creation of a life estate |
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Life Estate pur autre vie |
A life estate measured by a life other than that of the grantee
To A for the life of B |
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Life Estate: Distinguishing Charecteristics |
Life tenant entitled to all ordinary uses and profits of the land
Life tenant must no comit waste and cannot hurt future interest holders
Future Interest: if held by the grantor it is reversion if by a third party it is remainder |
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Waste: Life Tenent: Voluntary or Affrimative Waste |
This is an overt act that causes a drop in value
The life tenant must not consume or exploit natural resources on the property UNLESS PURGE applies
Prior Use -- prior to the grant the land was used for exploitation (the life tenant could continue to exploit unless otherwise agreed)
Limitation: Open Mines -- the life tenent may continue to mine but is limited to the mines already open
Repairs: The life tenet may consume natural resources for repairs and maintence
Grant -- the life tenent may exploit if granted that right
Exploit -- the land is suitable only to exploit (liek it is a quarry) |
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Waste: Life Tenent: Permissive Waste |
Neglect: this occurs when the land falls into disrepair
The life tenet must simply maintain the premises in reasonably good repair
The life tenet is obligated to pay all ordinary takes on the land, to the extent of income or profits on teh land. If no income or profits then the life tenent is require to pay all ordinary taxes to the extent of the premises fair rental value |
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Waste: Life Tenent: Ameliorative Waste |
The life tenent must not engage in acts that will enhance the property's value unless all future interest holders are known and consent |
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Future Interests Capable in Creation by Grantor |
The possibility of reverter -- created by a fee simple determinable
The Right of Entry, the Power of Termination (which the grantor may use at his discretion) -- created by a fee simple subject to condition subsequent
The Reversion -- the future interest that arises in a grantor when she transfers an estate of lesser quantum then she started with OTHER THAN fee simple determinable or fee simple subject to condition subsequent (if you do a life estate or a lease) |
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Future Interests in Transferees |
If the future intertest is held by someone other than the grantor it must be either
A vested remainder: of which there are three types:
1. the indefeasibly vested remainder
2. the vested remainder subject to complete defeasance
3. the vest remainder subject to open
A contingent remainder
An executory interest of which there are two types:
1. the shifting executory interest
2. the springing executory interest
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What is a Remainder? |
A remainder is a future interest created in a grantee (not the Grantor some other third party) that is capable of becoming possessory upon the expiration of a prior estate created by in the same conveyance in which the remainder was created |
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Remainder: Charecteristics |
ALWAYS accompanies a preceding estate of known fixed duration -- thus generally found with life estates or term of years
Remainderman never follows a defeasible fee -- it always waits for the present estate to run to its natural course
Remainderman cannot cut short or divest a prior transferee. If your present estate is a defeasible fee your future interest is NEVER a remainder |
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Remainder: Vested or Contingent |
A remainder is vested if it is both created in an ascertained person and is not subject to any condition precedent
A remainder is contingent if it is created in an unascertained person or it is subject to a condition precedent or both
NOTE: Living people have no heirs thus if it says to "To A for life then to B and his heirs" there is an unascertained party and the remainder is contingent.
NOTE: "To A for life, then to those children of B who survive A." If A is still alive this would be contingent because we dont know what kids might survive A |
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Remainder: Condition Precedent |
A condition is a condition precedent when it appears BEFORE the languge creating the remainder or is woven into the language of the grant to the remainderman
EXAMPLES:
"To A for life, if B graduates from college, to B"
A has life estate
B has a contingent remainder (if B graduates from college that remainder becomes a indefeasibly vested remainder) |
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Contingent Remainders: The Rule of Destructibility |
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceeding estate ended
TODAY: The rule of destructiblilty is abolished, so the preceding estate may revert back to the grantor and they may hold the estate subject to B's springing executory interest |
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Contingent Remainders: Shelly's Case |
O conveys "To A for life, then, on A's death, to A's heirs." A is alive
Traditionally: the present and future interests merge and give A a fee simple absolute. This was a rule of law, and therefore, applied even if the grantor's intent was explicit that this not happen
Today: the rule is abolished -- if this language then A is given a life estate; A's as yet unknown heirs (since she is alive and therefore has no heirs) are given a contingent remainder; and O has a reversion since A could possibly die without heirs |
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The Doctrine of Worthier Title |
Applies when O, the grantor, is alive, and attempts to create a future interest in his heirs
"To A for life then to O's hiers"
If worthier title did not apply then A would have a life estate and O's hiers (because they are unknown because A is alive) would have a contingent remainder
If worthier title does apply the "to O's hiers" langauge is void and A just has a life estate and O has a reversion
NOTE: as a rule of construction this can be explicitly drafted around |
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Indefeasibly Vested Remainder |
The holder of this remainder is certain to acquire an estate in the future, no strings attached |
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Vested Remainder Subject to Complete Defeasance |
Remainderman exists not subject to any condition precendent BUT his right to possession could be cut short because of a condition subsequent
When conditional language in a transfer follows language that taken alone and set off by commas would created a vested remainder, the condition is a condition subsequent and you have a vested remainder subject to complete defeasance
EXAMPLES:
To A for life, remainder to B, provided however that if B dies under the age of 25, to C
A has a life estate
B has a vested remainder subject to complete defeasance
C has a shifting executory interest |
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Vested Remainder Subject to Open |
A reaminder is vested in a group of takers at least one of whom is qualified to take
Each class member's share is subject to partial diminution because additional members can still join in
EXAMPLE:
To A for life then to B's children. A is alive. B is alive. B has children C and D.
C and D have vested remainders subject to open
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When is a clas open or closed? |
A class is open if others can still join
A class is closed if no other can join
The class closes whenever any member could demand possession
EXAMPLE:
To A for life then to B's children. A is alive. B is alive. B has children C and D.
The class closes either at: B's death (B can have no more children) or at A's death (when B's children could demand possession)
EXCEPTION:
Womb rule -- if class closes when there is a child in teh womb then he will share in the class
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Executory Interest |
Future interest created in an transferee (a third party) which takes effect by either cutting short some interest of another person (shifting) or in the grantor or his heirs (sprining)
Giving someone a fee simple and then attaching a condition on it which, if fufilled, cuts short that person's possessory interest |
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Shifting Executory Interest |
Always follows a defeasible fee and cuts short someone other than the Grantor
EXAMPLE:
To A and her heirs, but if B returns from Canada, then to B
B has a shifting executory interest (he will be cutting off A's possession if he returns from canda)
A has a fee simple subject to B's shifting executory interest (A's possession is subject to B's fullfillment of the condition)
This is not a remainder BECAUSE a remainder can never follow a defeasible fee |
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Sprining Executory Interest |
"To A, if an when he marries" A is not married.
A has a sprining executory interest (he will be cutting short the grantor's possesory interest if and when he marries)
Grantor has a fee simple subject to A's sprining executory interest (grants possession may be cut short upon fullfillment of condition) |
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Rule Against Perpetutities ("RAP") |
Certain kinds of future interests are void if there is any possibility no matter how remote that a given interest may vest more than 21 years after the death of a measuring life |
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When does RAP apply? |
Determine which future interests have been created by the conveyance. RAP potentially applies only to CONTINGENT REMAINDERS, EXECUTORY INTERESTS, and certain VESTED REMAINDERS SUBJECT TO OPEN.
RAP does NOT apply to: any future interest in the grantor or any indefeasibly vested remainders or a vested remainder subject to defeasence |
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Applying RAP |
Identify the conditions precedent to the vesting of the suspect future interest
Find a measuring life. Look for the person alive at the date of the conveyance and ask whether that person's life or death is releveant to the condition's occurence
ASK: Will we know with certainty, within 21 years of the death of the measuring life, if our future interest holders can or cannot take?
If yes, then good
If no, even if the chance is absurdly remote, then void |
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RAP EXAMPLE |
To A for life, then to the first of her children to reach the age of thirty. A is 70, her only child B is 29.
Future Interest: Contingent Remainder
What is the condition precendent: B reach 30.
Measuring Life: A (B cannot be the measuring life because the grant is not B specific, it is specfiic only to A and then to rest of her children)
Will we know with certainty, within 21 years of our measuring life, if a future interest holder can take?
NO! B could die tomorrow and then A could have another child but die having that kid. So there is a chance, even though seemingly impossible, that the given future interest could vest 21 years after her death |
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When does a gift to an open class violate the RAP |
A gift to an open class that is conditioned on the mmebers suriving to any age beyond 21 violates the common law RAP.
"Bad as to one bad as to all" to be valid you must show that hte condition precedent to every class members taking will occur in perpetuities period. If not the entire class gift is void |
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When do executory interests violate RAP? |
Executory interests violate RAP when there is no time limit on the time within which the interest must vest
EXAMPLE
To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs
A: fee simple subject to B's shifting executory interest
B: shifting executory interest
Measured Life: A
At A's death there is no indication that the land will vest to B within 21 years so violates RAP
Result: offending language is striken so left with To A and his heirs so long as the land is used for farm purposes
A has a fee simple determinable
O has the right of reverter
If the language cannot be striken and the grant is no longer gramatically itanct than the whole conditional clause is striken and A gets a fee simple absolute |
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Charity to Charity Exception |
A gift from one charity to another will not violate RAP |
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Wait and See or Second Look Doctrine |
The validity of any suspect future interest is determined on the bassis of the facts as they exist now and not at the end of hte measure life |
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The Uniform Statutory Rule Against Perpetuities |
Provides for an alternative 90 year vesting period of the grant's creation |
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Cy Pres Doctrine |
In both the wait and see and USRAP reform efforts of the RAP
If a given disposition violates the rule a court may reform the grant in a way that most closly matches the grantors interest while complying with RAP |
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NY REFORM OF RAP |
Rejects the wait and see and cy pres doctrine
REFORMS:
If an interest would be invalid because it is made to depend on any person's having attained an age in excess of 21 then the age contingency is reduced to 21
The common law fertile octogenenarian principle (a women is fertile no matter how old she is) is reduced to the age of 55 (adoption doesn't count as having children)
Suspension rule: An interest is void if it suspends the power to sell or transfer property for a period longer than the life in being and 21 years |
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The Joint Tenancy |
Two or more people own the land with the right of survorship |
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The Joint Tenancy: Charecteristics |
Right of Survivorship: when one joint tenant dies his share goes to the surviving joint tenants
Right to use whole
Alienable (can sell or transfer) but it is not devisable or decendable because of the right of survivorship |
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The joint Tenancy: Creation |
T-TIP: The four unities
Joint tenants must take thier interests in the SAME
Time
Title
Identical Shares
Possess the whole
Grantor must clearly express the right of survivorship (JT is disfavored) |
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The Joint Tenancy: Straw |
To satisfy the four unities may have to use a straw. Transfer the land to straw so that you can artifically create the four unities
NY DISTINCTION: do not need to use straw and simply convey to the JTs |
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The Joint Tenancy: Severance |
SPAM
Sale Partition and Mortgage |
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The Joint Tenancy: Severance and Sale |
A JT can sell or transfer her interest during her lifetime CAN do this in secret
A sale disrupts the four unities so the buyer becomes a tenant in common while the JT remains intact between the other JT
In equity a JT mere act of entering into a K for the sale of her share with as to the K parties interest, destroy it. So JT is destroyed as soon as you enter into the agreement |
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The Joint Tenancy: Severance and Partition |
By voluntary agreement peaceful way to end it
By partition in kind a court action for the physicial division of the land if in the best interest of all (generally rural with a lot of land)
By forced sale a court action if in the best interest of all where teh land is sold and the proceedes are divided accordingly (only one building no way to really parititon) |
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The Joint Tenancy: Severance and Mortgage |
On JT's execution of a mortgage lien on his or her share will sever the JT as to that now encumbered share only in the minority of states
NEW YORK and most states follow the lien theory whereby a JT executing a mortgage does not destroy the JT |
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The Tenancy by the Entierty |
A marital interest between married partners with the right of surviorship
Arise presumptively in any conveyance to married partners unless stated otherwise |
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The Tenancy by the Entierty: Charecteristics |
Very protected form of co-ownership
Creditors of only one spouse cannot tocuht this tenancy. In NEW YORK you could mortgage your interest but creditors may enforce against that interest only (that of the debtor spouse) and not the whole thing. Non-debtor's spouse's rights (including the right of survorship) cannot be compromised
No unilateral transfer: neither tenant acting alone can transfer thier right to a third party |
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The Tenancy in Common |
Each co-tenant owns an individual part of the land BUT has the right to possess the whole
Each interest is severable, devisable and descendible (no right of survivorship)
The presumption favors tenancy in common |
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Rights and Duties of Co-Tenants: Possession |
Each co-tenant is entitled to posses and enjoy the whole
If one co-tenant wrongfully excludes another from possession of the whole or any part he has committed wrongful ouster |
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Rights and Duties of Co-Tenants: Rent from other co-tenants |
Absent ouster, a co-tenant in exclusive possession is not liable to others for rent |
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Rights and Duties of Co-Tenants: Rent from third parties |
A co-tenant who leases all or part of the premises to a third party must account to his co-tenants providing fair share of rent income. if he does not you must bring an action for accounting |
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Rights and Duties of Co-Tenants: Adverse Poessision |
Co-tenant cannot require possession of the whole through AP unless he has ousted his co-tenants
NY DISTINCTION: Exclusive Possession for 20 years is implied ouster |
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Rights and Duties of Co-Tenants: Carrying Costs |
Each co-tenant is responsible for his fair share of the carrying costs (mortgage, taxes) based on thier individual shares |
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Rights and Duties of Co-Tenants: Repairs |
The repairing co-tenant has a right to contribution for reasonably necessary repairs provided that she has told the others about the need |
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Rights and Duties of Co-Tenants: Improvements |
During the lifetime of the co-tenant there is no right to contribuiton for "improvements"
However, at partition, the improving co-tenant is entitled to a credit equal to any increase in valuse she caused OR any decrease in value she causes |
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Rights and Duties of Co-Tenants: Waste |
A co-tenant must not commit waste |
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Rights and Duties of Co-Tenants: Partition |
A co-tenant has a right to bring an action for partition |
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Tenancy for Years |
Lease for a fixed period of time (could be a month, week, years or whatever). Remember the SOF -- if a term is longer than one year it must be in writing
When you know the termination date of the lease then you have a tenancy for years
There is no need for a notice to terminate since from the outset you are aware of when it will end |
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Periodic Tenancy |
The lease continues for successive intervale until lessor gives notice to terminate |
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Periodic Tenancy Implied |
Land is leased with no mention of duration but a provision is made for the payment of rent at regular intervals
Holdover: in a residential lease if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease a periodic tenancy arises by the way rent is now tendered |
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Periodic Tenancy: Termination |
Must provide notice, usually written, at least equal to the period itself unless otherwise agreeed SO if it is for a week then one week, a month one month BUT a year only six months notice (can be contractually modified). Termination takes effect at the end of the next lease period
Periodic tenancy will end regardless at the conclusion of the natural lease period |
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Tenancy At Will |
Tenancy for no fixed duration
Unless explicitly states a tenancy at will becomes a periodic tenancy with the payment of regular rent
Can be terminated at any time by any part but a reasonable demand to vacate is usually needed. In NEW YORK if you are terminating a tenancy at will must give a minimum of 30 days written notice of termination |
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Tenancy at Sufferance |
Created when T has wrongfully held over past the expiration of the lease, because he has this leashold interest still must pay rent to L
Lasts only until eviction or elects to hold T to new tenancy
NY DISTINCTION: Landlord's acceptance of rent subsequent to teh expiration of the term will create an implied month-to-month periodic tenancy |
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Tenant's Duties |
T's Liability to third parties T's Duty to repair T's duty to pay rent |
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T's laibility to third parties |
T is responsible for keeping the premises in reasonably good repair
Liable for injuries suffered by third parties that the T invited even where L promised to make the repairs that caused the injury |
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T's Duty to Repair |
Maintanence: T must maintain and make routine repairs other than those due to ordinary wear and tear
Must not commit waste |
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Law of fixtures |
THINK WASTE
When a T removes a fixture she commits voluntary waste, therefore she cannot remove them even if she insalled them. Fixtures pass with the ownership of the land
Fixture is a once movable chattel that, by virtue of its annexation to reality, objectively shows the intent to permanently improve the place (furnance, custom storm windows, some lighting)
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What is a fixture? |
Anything the K between L and T calls a fixture
T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises. If the removal does cause substantial damage then in objective judgment T has show the intent to instal a fixture and it must stay |
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T's Duty to Repair and Natural Disasters |
If T has expressly covenanted in the least to keep the property in good condition then
at common law, historically, T was liable for any loss of property including loss due to a force of nature
today, the majority view, T may end the lease if the premises are destroyed w/o T's fault
NY DISTINCTION: In NY, unless you try to fix the destroyed premises, if the premises is destroyed by no fault of T then you can quit the premisses, surrendering possession, and no longer need to pay rent |
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T's Duty to Pay Rent: If Breached and in possession |
The landlord could either evict through the court or continue to rely on the lease and sue for rent damages. If L moves to evict she is still entitled to rent from T until the T vacates
Landlord CANNOT engage in self help (change locks, move thier stuff to the curb). This is prohibited and will result in civil and criminal punishment |
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T's Duty to Pay Rent: If Breached and not in possession |
SIR
Surrender: L could choose to treat T's abandonment as an implied offer of surrender which L accepts. If the unexpired term of the lease is greater than one year surrender MUST be in writing
Ignore: Hold T responsible for the unpaid rent just as if he was still there (minority view)
Re-Let: Try to lease the premises to someone else and hold T liable for any deficiency (in majority of states have to do this to mitigate damages NOT NY) |
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Landlord's Duty: Duty to deliver possession |
English Rule (majority rule): L put T in physical possession of the premises. If at start of lease old T is still in possession L has breached and is laible for new T for damages
American Rule (minority): Need only to give legal title to new T and not actual (signing the lease and handing him the keys) |
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Landlord's Duty: Implied Covenant of Quiet Enjoyment |
Commercial and Residential Leases
T has the right to quiet use and enjoyment of the premises absent interefernce by L.
Breached by wrongful evicition or constructive eviction
L is not liable for the actions of other tenants EXCEPT: L must not permit nuisance on site and L must control common areas |
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Constructive Eviction |
SING
Substantial Intereference: due to L's action or failure to act -- permant or chronic problem
Notice: T must notify L of the problem and L must fail to act meaningfully
Goodbye: T must vacate within a reasonable time after L fails to fix the problem |
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Landlord's Duty: Implied Warranty of Habitability |
Residential Leases
Premises must be fit for basic human habitiation (no heat in winter, no plumbing, no running water)
Remedies for T: M R^3
Move: Move out and end the lease (but you dont have to)
Repair and Deduct: (if permitted by statute) Make reasonable repairs and deduct cost from rent
Reduce Rent: Reduce or withold rent until court can determine reasonable rental value. Should put the rent you aren't paying in escrow to show good faith
Remain in Possession: Do nothing, pay rent, then seek damages |
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Retaliatory Eviction |
L cannot evict a T because a T lawfully reported L for a housing code violation
CANNOT raise rent, end lease, harass T or take any other reprisals |
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Assignment of Lease |
If there are no restriction in the K then T is free to transfer her ENTIRE interest in the least
Once one such transfer is made and L consents to it, she loses her right to object to futrue transfers by T UNLESS that right is reserved |
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Sublease of Lease |
If there is no restriction in the K then T is free to transfer A PART of her interest in the lease
Once one such transfer is made and L consents to it, she loses her right to object to futrue transfers by T UNLESS that right is reserved |
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Assigning a Lease: Privity of Estate and Contract Consequences |
Transfer of entire interest in lease
Means that the L and the new T are in privity of estate such that they are liable to each other for all covenants in the original lease that run with the land (promise to pay rent, paint, repair, essentially all of them)
The new tenant and the L are not in privity of contract unless the new tenant explicitly assumed all promies in the lease
L and the old tenant are no longer in privity of estate BUT ARE in privity of contract such that the two are secondarily liable to each other (if the new tenant is unavailable or insolvent then she can come after you) |
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Subletting a Lease: Privity of Estate and Contract |
The subletter is not in privity of estate or contract with anyone |
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Landlord's Tort Liability |
Let tenant beware -- In tort L is under no duty to make the premises safe |
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Exceptions to Common Law Caveat Lessee (let the tenant beware) |
CLAPS
Common Areas: L must maintin all common areas
Latent Defects: L must warn T of all hidden defects that L knows about or should know about (only a DUTY TO WARN)
Assumption of Repairs: if L starts to make repairs must do them correctly -- if done negligently you are liable
Public Use Rule: L who leases a public space (convention hall or museum) then L should know because of the nature of defect and length of least that T will not repair and L is liable for any defect on premises
Short term lease of furnished dwelling: L is liable for any defects on site |
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Easement |
Grant of a nonpossesory interest that entitles its holder to some form of use or enjoyment of another's land
The other's land is called the serviant tenanment |
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Affirmative Easement |
The right to do something on the serviant tenament |
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Negative Easment |
Entitles its holder to prevent the servient land owner from doing something that would otherwise be permissible. Negative Easements MUST be created expressly by writing signed by the grantor
LASS
Light Air Support Stream water from an artifical flow
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Appurtenant Easement |
Take two parcels of land must be involved where the domiant tenent gets a beneft and the subservient tenent gets a burden |
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Easement in Gross |
Confers on its holder only some personal or pecuniary adbantage that is not related to his use or enjoyment of his land
The servient land is burdened without a corresponding benefit to the domiant tenent (only 1 parcel of land involved) |
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Transfering an Easement |
Appurtenant Easement: passes automatically with teh domant tenenmanet even if it is not mentioned in teh convenyance
The burden passes automatically with the serviant estate UNLESS you are a bona-fide purchaser without notice of the easement
A easement in gross is not transferable UNLESS it is commercial |
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Creating an Affirmative Easement |
PING
Perscription Implication Necessity Grant |
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Creating an Affirmative Easement: Grant |
If the easement is to endure for more than one year it must be in writing and comply with the formal elements of a deed |
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Creating an Affirmative Easement: Implication |
Implied Easement if
the previous use was apparant AND
the parties expected the use would survive division because it is reasonably necessary to the dominant's lands use |
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Creating an Affirmative Easement: Necessity |
Landlocked setting: An easement for a right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over some part of grantor's remaining land |
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Creating an Affirmative Easement: Perscription |
An Easmenet could be acquired by satisfying the elements of adverse possession (COAH)
Continuous use for statutory period Open and notorious use Actual use Hostile use (without the consent of the serviant owner) |
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Scope of an Easment |
Set by the terms of the agreement that created it. Unilateral expansion of the easement is PROHIBITIED |
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Termination of the Easement |
END CRAMP
Estoppel: servient owner materially changes his position in reasonable relaince that th easement will not be enforced
Necessity: Easements created by necessity terminate as soon as the need ends UNLESS it was created by an express grant then it endures
Destruction of the servient land through the willful conduct of the servient owner
Condemnation of the servient estate by eminent domain
Release: A written release given by the easement holder to the servient estate
Abandonment: The easement holder must demonstrate by physical action the intent to never use the easement aagin -- building a fence that cuts of the right of way
Merger: Easement is extinguished when the title to the easement and the title to the servient land become vested in the same person (the easement is not revived if the land is again split)
Perscription: Serviant owner extinguishes easmenet by interfereing with it in accordnace with the elements of adverse possession |
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License |
Mere privlidge to enter antoher's land for some deliniated purpose
Not subject to SOF so no writing requriement
Freely revokable at the will of liscensor unless estoppel applies |
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License: Ticket |
Ticket create freely revokable license (so you may lose the property right but you can still sue for breach of k) |
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License: Nieghbors talking by the fence |
Any oral easement creates a freely revocable license -- estoppel only applies when the licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation |
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Profit |
Entitles its holder to enter the servient land and take from it the soil or some substance from the soil (minerals, timber, oil)
Profit follows all of the easement rules |
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Covenant |
A promise to do or not do something realted to land. UNLIKE an easement because it is not the grant of a property interest BUT a K or promise regarding the land |
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Restrictive Covenant's |
Acceptable. A promise to refrain from doing something on your land |
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Covenant or Equitable Servitude |
LOOK TO REMEDY
If covenant: Plaintiff will seek money damages
If equitable servitude: Plaintiff will seek injunctive relief in equity |
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When will a covenant run with the land? Analysis of the Burdened Side |
Does the burden of A's promise to B run from A to A-1?
NOTE: If only one side is transfering thier property interest (A is remaining the same but B is transfering to B1) then ONLY have to analyize that side
Analyize Burden Side First!
Elements Necessary for the burden to run: WITHN
Writing: original promise between A and B was written
Intent: Original parties A and B intended the covenant to run (generally the courts are generous in finding this)
Touch and Concern the land: the promise must affect the parties' legal relation as land owners and not simply members of the public at large (covernant to pay money to a home owner's association and covenants not ot compete do touch and concern the land)
Horizontal and Vertical Privity
Notice: A1 had notice fo the promise when she took the land |
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When will a covenant run with the land: Horizontal and Vertical Privity |
Horizontal Privity: refers to the nexus between A and B (the original contracting parties). They must be in succession of estate meaning that at one point they were in a grantor/grantee, landlord/tenant, or mortgagor/mortgagee relationship
Vertical Privity: Refers to the nexus between A and A1 simply requires some non-hostile nexus such as a contract, devisee, or decendant
ALWAYS vertical privity unless A1 got the land by adverse possession |
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When will a covenant run with the land: Analysis of the benfitted side |
SECOND: Does the benefit of A's promise to B run from B to B1?
WITV
Writing: the original promise between A and B was in writing
Intent: original parties intended that the benefit would run
Touch and Concern: effects the parties as land owners
Vertical Privity: Non-hostile Nexus between B and B1 |
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Equitable Servitudes |
A promise that equity will enforce against successors. It is accompanied by injunctive relief |
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Equitable Servitudes: Creation of ES that will bind successors |
WITNES
Writing: Original promise was in writing
Intent: the original parties intended the promise would be enforceable by and against asignees
Touch and Concern: effects the parties as land owners
Notice: Assignees of burdened land had notice of promise
DOES NOT require privity |
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Implied Equitable Servitude: Common Scheme or Plan |
Courts will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant if
when the sales begin the subdivider had a general scheme of residential development that included the defedant's lot
the defendant lot holder had notice of hte promise contained in the prior deed
Three types of notice that may be imputed to defendant: AIR
Actual notice: literally knew about it
Inquiry Notice: the nieghborhood conforms to the common restriction -- lay of the land -- if he had visited he would have seen what was up
Record Notice: if the scheme was in some publically recorded documents |
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Record Notice and the Implied Equitable Servitude |
Minority: A subsequent buyer is on record notice of the contents of prior deeds transferred by a common grantor
Majorirty and NY: Subsequent buyer does not have record notice of the contents of prior deeds transferred to other by the common grantor |
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Equitable Defenses to Enforcement of Equitable Servitude |
Changed Condition: the changed circumstances alleged by the party seeking relief must be so pervasive that the entire area has changed. Mere pockets of limited change are not enough |
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Adverse Possession |
COAH: For possession to ripen into title
Control: uninteruptted for the statutory period (NY IS 10 YEARS)
Open and Notorious: The sort of possession the usual owner would make under the same circumstances
Actual: The entry must be literal, you must actually be occupying the land
Hostile: Possession does not have the true owners consent to be there
NY DISTINCTION: The possessor must have a good faith belief that the land that he is occupying is indeed his. IF he knows it is not his then it cannot be adversely possesed
Multistate: Subjective intent of the possessor is irrelevant |
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Adverse Possession: Tacking |
One adverse possessor may tack on to his time with teh land his predecessor's time so long as there is privty which is satisfied by any non-hostile nexus between the two such as K, blood, deed or will
NO tacking if ouster |
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Adverse Possession: Disabilities |
Statute of limitations will not run against a true owner who is afflicted with a disability at the start of adverse possession
Infancy, Insanity and Imprisonment |
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Conveyance of Real Estate |
Requires a two step process
The land contract (which endures only until)
The closing, where the deed becomes the operative document |
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The land contract |
Must be in writing, describe the land, be supported by consideration and be signed by the party who is to be bound
If the land described by the land contract is more than the actual size of the parcel entitled to specific performance and a pro rata reduction in price |
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The Land Contract: Exceptions |
Part performance will obviate the written requirement of the land contract a party must have done two of the three
Take possession of the land
Pay the whole or partial price of the k
Make substantial improvements on the land |
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The Land Contract: Risk and Loss |
Once the contract is signed B (the buying party) owns the land subject to the condition that he pay the purchase price prior to closing
If in the time between siging the land contract and closing the property is destroyed through no fault of either party the BUYER bears the risk of loss (unless k says otherwise)
NY DISTINCTION: So long as the buyer is without fault the risk of loss remains with the seller until buyer has title or takes possession |
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The Land Contract: Implied Promises |
Seller promises to provide marketable title at the closing -- title is free from reasonable doubts, lawsuit or the threat of litigation
Seller promises not to make any false statements of material fact AND promises to disclose all latent material defects
The seller CANNOT disclaim liability for fraud prior ot closing
Land K DOES NOT contain an implied warranty of fitness or habitability |
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What renders title unmarketable? |
Adverse Possession: If even part of the title rests on adverse possession it is unmarketable. Seller must be able to provide a good period title.
Encumberances: Marketable title means that the title is an unencumbered fee simple as such servitudes or mortgages render the title unmarketable UNLESS the buyer waives them
NOTE: the seller can use the proceeds from the sale to satisfy an outstanding mortgage or lein at the closing -- thus a mortgage prior to closing does not make the title unmarketable as long as the parties understand that the closing will result in the satisfaction of the mortgage
Zoning Violations: title is unmarketable if the land violateds some zoning ordinance |
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The Closing |
At the time of the closing the controlling document is the deed which passes legal title from seller to buyer |
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How doe the deed pass legal title from seller to title? |
LEAD: It must be lawfully executed and delivered |
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Lawful Execution of a Deed |
Must be in writing and signed by the grantor, the deed need not recite consideration nor must consideration pass to make the deed valid
Must describe the land with unambiguous describition and a good lead -- enough descripition so that you can research and know the meaning of the descripition |
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Delivery of the Deed |
Delivery requirement is satisfied when the grantor physically transfers the deed. You may use mail, agent or messangers
Do not need to physically hand over the deed. The delivery standard is a legal standard governed only by present intent. If the grantor has the present intent to be bound then the deed is delivered regardless of whether it was actually handed over |
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Delivery of Deed: Rejection |
Recipient's express rejection of the deed defeats delivery |
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Derlivery of the Deed: Modifications |
If a deed is aboslute on it face and is transferrred to the grantee with oral modifications those modficiations drop out |
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Delivery of the Deed: Alternative Methods |
Delivery by escrow agent is OK. Grantor could gie the executed deed to a third party to be delivered to the grantee once certain conditions are met. Once those conditions are met title would pass to the grantee
Title will pass even if the conditions are met after the grantor dies or becomes incompetent |
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Quitclaim |
Contains no covenants. Grantor isn't even promissing that he has a title to convey. The worse deed for buyer.
NOTE: Grantor did implicitly promise in land k to provide marketably title at closing, any post-closing issues though, grantor is off the hook |
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General Warranty Deed |
Warrants against all defects in title including those due to the grantor's predessesors in interest
Two sets of covenants:
Present covenants, which is breached, if ever, at the time of delivery and whose statute of limitations begins to run immediately at delivery
Future Covenant: Only can be breached when the grantee is disturbed in his possession of the land. Statute of limitations runs from the date of the injury |
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General Warranty Deed: Past Covenants |
Covenant of Seisin: Grantor actually owns the estate
Covenant of the right to convey: (sound mind/capacity): Grantor has the power to transfer and is not subject to any temporary restraints or disabilities
Covenant against encumberance: No servitudes or encumberances |
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General Warranty Deed: Future Covenants |
Covenant for quiet enjoyment: Grantee wont be distrurbed in his possession by a third party's lawful claim for the land
Covnenant of Warranty: Grantor will defend Grantee against lawful claim of title against others
Covenant of further assurances: Grantor will do whatever is needed to perfect the title |
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Special Warranty Deed |
Creature of statute and contains two promises that grantor makes only on behalf of himself
Grantor promises that he has not conveyed the land to anyone other than the grantee
AND
the land is free from encumberances made by grantor |
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The Recording System |
O conveys Blackacre to A. Later O conveys Blackacre to B. O is a double dealer, and leaves town. In the battle for land who wins?
If B is a Bona Fide Purchaser and we are in a notice jurisdiction, B wins regardless of whether or not she records before A does
If B is a BONA FIDE PURCHASER and we are in a RACE-NOTICE jurisdiction, B wins if she reocrds properly before A does (NY IS RACE NOTICE) |
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Bona Fide Purchaser |
Purchases the property for value: as long as he submits substantial pecuniary consideration it is ok even if he is reciving the property at a bargain
Does not have notice that someone else purchased the property first |
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The case of the doomed donee |
Recording statutes do not protect donee's heirs or devisee's because you need to have paid for the land (substantial consideration) in order to get the benefit of the recording statute |
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Notice for a Bona Fide Purchaser |
Three forms of notice tha a buyer may potentially be charged with: AIR
Actual Notice: prior to the closing B learns of A
Inquiry Notice: charged with notice of whatever an exam, routine inspection, of the property would have shown. B has a duty to inspect the property before the transfer, therefore if A is in possession B will always be charged with having constructive notice of the prior transfer
NOTE: if a recorded instrument makes reference to an unrecorded transaction the grantee is on inquiry notice of whatever a reasonable follow up would show
Record Notice: B is on record notice of A's deed if A's deed was recorded properly within a claim of title |
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Notice Statute: Language |
A conveyance of an interest in land shall not be valid against any subsequent purchaser of value, without notice thereof, unless a conveyance is recorded
The last bona fide purchaser to enter wins |
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Race Notice Statute: Language |
Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice therof, whose conveyance is first recorded
To prevail you need to be a bona fide purchaser and win the race to the record |
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When is a deed recorded properly? |
A deed is recorded properly if it is within the chain of title, which refers to the sequence of recorded documents capable of giving record notice, the chain of title is established through a title search of the grantor/grantee index |
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Shelter Rule |
One who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against.
The transferee "takes shelter" in the transferor thereby "stepping into the shoes" of a BFP even thought she is not one
Makes it easier for a Bona Fide Purchaser to transfer land |
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The Problem of the Wild Deed |
O sells Blackacre to A, who does not record. Then A sells to B who records the A-B deed.
The A-B deed, even though it is recorded, is NOT connected to the chain of title because it contains a missing grantor. There is no O-A link and the A-B deed is a wild deed.
If a deed entered on the record (A-B) has a grantor unconnected to the chain of title (O-A) the deed is a wild deed and is incapable of gicing record notice of its existence |
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Estoppel by Deed |
One who conveys realty in which he has no interest is estopped from denying the validity of the conveyance if he latter acquires the interest that he previously transfered |
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How can the creditor-mortgagee transfer his intertest? |
Endorse note and deliver it to the transferee
Executing seperate documents of assignment
Once the note is endorsed and delivered the transferee may become a holder in due course
As such he takes the note free from any personal defenses that could be raised against the original creditor and may foreclose in spite of these defenses
Still subject to real defenses the maker might raise |
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Personal Defenses |
Fraud in the inducement, waiver, estoppell, lack of consideration, unconscionability
Essentially any contract formation defense |
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Real Defenses |
MAD FIFI^4
Material Alterations Duress Fraud in the factum -- lie about the instrument itself (said it was a credit card application but it was a mortgage) Incapacity Infancy Illegality Insolvency
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When do you become a holder in due course? |
Note must be negotiable, made payable to the named mortgagee
The original note must be indorsed, signed by the named mortgagee
The original note must be delivered to the transferee. A photocopy is unacceptable
the transferee must take the note in good faith without any notice of illegality
the tranferee must take the note with no notice of any claims on the property
the transferee must pay value for the notice, meaning some amount that is more than nominal |
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Record Statute and Mortgages |
If O, a debtor-mrotgagor, sells his property which is now mortgaged:
the lien remains on the land so long as the mortgage instrument was properly recorded
As such, a later buyer takes the property subject to the properly recorded lein
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Record Statute and Mortgages: Implications |
Buyer will take subject to the lean if he is a bona fide purchaser after the lein has been properly recored BUT
In a notice jurisdicition if he is a bona fide purchaser before the mortgage is on record then it does not apply
OR
In a race notice jurisdiction if he is on record before the mortgage is he wins |
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Who is personally liable on the debt if O, our debtor-mortgagor, sells property to B |
If B has "assumed the mortgage:" Both O and B are presonally liable B is primarily liable and then O is secondarily liable
If B takes the land "subject to the mortgage" then B assumes no personal liablity and O is personally liable
NOTE: but remember if the mortgage stays on the land then if O does not pay the mortgage the land can still be foreclosed |
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Foreclosure |
The mortgagee must foreclose by judicial action. At foreclosure the land is sold and the proceeds go to satisfy the debt
If the proceeds are less than the debt than the mortgagee can bring a deficiency action against the mortgagor
If the proceeds are greater than the debt then the junior lien holders (if there are any) are paid off in order of priority and the remaining money goes to the debtor
NOTE: Attorney fees, expenses and any accrued interest is taken off the top of the sale price |
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Foreclosure: Effects |
Terminates interests junior to the mortgage being foreclosed but will not effect senior interests
If this does not satisfy the junior lien holders than they can file a deficiency action BUT they cannot look to the property again for satisfaction of thier debt |
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Foreclosure: Necessary Parties |
Those junior lien holders (anyone whose interests are subordinate to the foreclosing party) are necessary parties in the foreclosure action
Debtor-mortgagor is alos a necessary party and must be jouined
Failure to join a necessary party results in the preservation of that party's claim, despite the foreclosure and sale. Thus, if a necessary party is not joined the mortgage stays on teh land |
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Foreclosure: Effect on more senior parties |
Foreclosure does not affect any interest senior to the mortgage being foreclosed. The new buyer at the sale takes subject to such interest. The buyer is not personally liable for on the senior debt BUT it still is on the property and if it is not paid the land will be foreclosed
Thus strong incentive for foreclosure buyer to pay off the mortgage -- will take this into account when bidding and bid the FMV of the land less the remaining amount left on the mortgage |
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Priorities |
As a creditor you must record your note in order to gain priority -- if you do not record then you have no priority
Once recorded, priority is determiend by the norm of first in time first in right |
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The purchase money mortgagor |
The creditor who gives a mortgage to secure a loan that enables a debtor to acquire the encumbered land has a super priority and is always the most senior on the property he financed |
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After Acquired Collateral Clause: Floating Lein |
C1 lends $200k to O, but O's current real estate assets are less than $200k so C1 agrees to take a security interest in all of O's real estate holdings "whether now owned or hereafter acquired"
NOTE: if properly recorded this should make C1 the most senior debt on any property O acquires HOWEVER this is not the case if another creditor is the purchase money mortgagor (financed the property that O just bought) in that case the floating lien holder is subordinate |
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Subordination Agreement |
Permissible by private agreement can subordinate senior interest to junior |
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Redemption In Equity |
At any time prior to foreclosure the debtor has the RIGHT (not waivable) to redeem the land and free it from the mortgage
HOWEVER once the forcelosure takes place the right is GONE |
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How do you redeem your mortgage? |
Pay off the missed payments plus interest plus costs |
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Acceleration Clause |
Permits the mortgageee to declare the full balance of the mortgage in the event of a default.
Mortgagor would need to pay costs, full balance, accrued interest |
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Statutory Redemption |
Recognized in 1/2 the states
Gives the mortgagor a right to redeem for some fixed period of time after the foreclosure (usually six months to a year). During this period the mortgagee retains the right to possess the property
The amount to be paid off is the foreclosure sale price and not the amount of the original debt. Payment will undue the foreclosure sale.
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Lateral Support |
If land is improved by buildings and an adjacent landowner's excavation causes that improved land to cave in the excavator will be liable only if he is negligent
Strict liability does not attach to the excavator's actions unless plaintiff demonstrates that plaintiff's improved land would have collapsed even if it had still been in its natural state |
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Riparian Doctrine |
Water belonds to those who own the land bordering the watercourses (river, streams and lakes)
These people are knowns as riparians and share a right of reasonable use of the water
Riparian will be liable to another if his use unreasoanbly interefers with another use
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Prior Appropriation Doctrine |
The water belongs initially to the state but the right to divert it and use it can be acquired by another individual regardless of whether or not he happens to be a riparian based on the priority of beneficial use
First in time first in right: if you were the first one to divert the water from a wtercourse you can do so -- any productive use of the water including for agriculture is sufficient to create this right |
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Groundwater or Percolating water |
Any water beneath the surface of the earth that is not confined to a known channel
The surface owner is entitled to make reasonable use of the water so long as it is not wasteful |
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Surface Waters |
Water that comes from rain, springs or melting snow which has not yet reached a natural watercourse or basin
Common Enemy Rule: Landowner may change drainage or make other improvements on his land to combat the flow of surgace water so long as he does not unecessarily damage another's land |
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Trespass |
invasion of land by a physical object
The possessor has the right to be free of trespass and can bring a ejectment action to get rid of it |
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Nuisance |
Substantial unreasonable interefernce with another's use and enjoyment of thier land
Does not require tangible physical invasion like trespass. Order or noise can give rise to a nuisance then
A plaintiff who is hyper sensative cannot sue for nuisance on account of his hieghtened sense of something |
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Zoning |
Government may enact statutes to reasonably control land use |
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Variance |
Can get relief from zoning laws if you can prove undue harship and the variance will not work to the detriment of surronding property values
The variance is granted by administrative action |
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Nonconforming Use |
A once lawful use existing use now deemed nonconforming by a new zoning ordiance
Cannot be eliminated all at once unless just compensation is paid -- otherwise unconstitutional taking |
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Unconstitutional Exaction |
Exactions are the ammenties the government seeks in exchange for granting permission to build. Exaction must be reasonably realted to the nature and scope to the impact of the proposed development
EXAMPLE
You want to build a 200-unit residential development gov says you can so long as you provide some street lights a park and some roads |
