Property

Front 1

[1] Present Possessory Estates

Back 1

1. Fee simple absolute 2. Fee Tail 3. Defeasible Fees 4. Life estate

Front 2

Fee Simple Absolute

Back 2

"To A" or "To A and his heirs [Characteristics] 1. Absolute ownership of potentially infinite duration 2. Devisable, descendible, alienable [Future Interest?] NONE - even "heirs" are prospective and have no interest while holder is alive

Front 3

Fee Tail

Back 3

*rarely tested* "To A and the heirs of his body." [Characteristics] 1. Abolished in NY and most of US 2. Pass directly to "grantee's lineal blood descendants, no matter what" [Accompanying Future Interest] 1. Reversion to O 2. Remainder to 3rd Party

Front 4

Defeasible Fees

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1. Fee Simple Determinable 2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to Executory Limitation

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FSD

Back 5

[Creation] "To A for so long as, during, until" [NY Name] "Fee on Limitation" [Characteristics] 1. Forfeiture is AUTOMATIC if stated condition is violated 2. Devisable, Descendable, Alienable [Future Interest] Possibility of Reverter - FSDPOR!

Front 6

FSSCS

Back 6

[Creation] "To A, but if X occurs, O reserves the right to reenter and retake" [NY Name] "Fee on Condition [Characteristics] 1. Terminated at O's option if stated condition occurs 2. Devisable, descendible, alienabe [Future Interest] Right of Entry / Power of Termination; NY " Right of Reacquisition

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FSSEL

Back 7

[Creation] "To A, but if X occurs, then to B" [Characteristics] 1. Automatic forfeiture to a 3rd Party if condition is violated 2. Devisable, descendible, alienable [Future Interest] Shifting Executory Interest

Front 8

Rules of Construction for Defeasible Fees

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1. Words of mere desire hope, or intention are insufficient to create a defeasible fee -- need "clear durational language" b/c courts DISFAVOR restrictions on free land use 2. ABSOLUTE restraints on alientation are VOID - need a "reasonable time-limited purpose"

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Life Estate

Back 9

[Creation] "To A for life" - A is a "life tenant" [Life Estate Per Autre Vie] Measured by a life other than the Grantee [Future Interest] O has a reversion [Characteristics] 1. Life tenant entitled to "ordinary use and profits from the land" 2. Cannot commit waste 3. holder is personally liable for taxes - tax sale will cut off rights of remaindermen! [Future Interest] O has a version, Third Party has a remainder

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Waste

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1.Voluntary / affirmative 2. Permissive waste / neglect 3. Ameliorative Waste

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Voluntary / affirmative waste

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Over conduct causing a drop in value - "willful destruction." [PURGE XCs for Natural Resources] 1. [P]rior [U]se - land was used for exploitation prior to the grant so the tenant may continue to exploit, "Open Mines Doctrine" (limited to mines ALREADY open) 2. [R]epairs - may consume natural resources for repairs and maintenance 3. [G]rant in K 4. [E]xploitation - land is ONLY suitable for exploitation (e.g. Quarry)

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Permissive waste

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"When landfalls into disrepair" 1. [Obligation to repair] only need to maintain the premises in "reasonably good repair" 2. [Obligation to pay taxes] pay "ordinary taxes on the land" to the extent of INCOME or PROFITS dervied, o/w to the extent of the premises "fair rental value"

Front 13

Ameliorative Waste

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"Life tenant must not engage in acts that will enhance property's value, unless all future interest holders are KNOWN and CONSENT." [NY] can make "reasonable" improvements unless remaindermen object

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[2] Future Interests

Back 14

1. Retained by Grantor 2. Retained by Transferees 3. The Rule Against Perpetuities

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Future Interests Reatined by the Grantor

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1. [Possibility of Reverter] accompanies the FSD 2. [Right of Entry] accompines the FSSCS 3. [Reversion] everything else - when O conveys an estate less than what she started with (e.g. To A for life and then B for 99 years)

Front 16

Future Interests in Transferees

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1. [Vested Remainder] - ASCERTAINED persons and NO CONDITION precedent 2. [Contingent Remainder / NY: "Remainder Subject to a Condition Precdent] - created in an UNASCERTAINED person and / or subject to a CONDITION precdent 3. [Executory Interest]

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Remainder

Back 17

Future Interest created in a GRANTEE capabale of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created --> always accompanies a preceding estate of "known, fixed, duration"

Front 18

Contingent Remainder

Back 18

[Creation] 1. in as yet unborn or unascertained persons and/or 2. subject to condition precedent [Rule of Destructibility] 1. If CP occurs before the preceding estate vested, it changes to an "indefeasibly vested remainder" 2. At CL, DESTROYED if still contignent at the time preceding estate vested and O takes in FSA 3. TODAY / NY , O take in FSSEL, subject to B's "springing executory interest" [Shelley's Case] "To A for life (Life Estate), then on A's death to A's heirs (contingent remainder)" - merges into an FSA even contrary to grantor intent - ABOLISHED in NY and other states [Doctrine of Worthier Title] voids "To A for life, then to O's heirs," granting a Life Estate and a reversion to O (allows O and A together to transfer): 1. grantor's intent controls - rule of construction 2. abolished in NY

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Vested Remainders

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1. Indefeasibly vested 2. vested subject to complete defeasance / NY: "remainder vested subject to complete defeasance" 3. vested remainder subject to open

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Indefeasibly Vested Remainder

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Holder of this remainder is certain to acquire the estate - will pass by intestacy

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Vested Remainder Subject to Complete Defeasance

Back 21

1. Remainderman EXISTS, but right to to possession could be cut short because of "condition subsequent" 2. E.g. "To A for life, remainder to B, provided however that if B dies under the age of 25 to C" - B has vested remainder subject to complete defeasance

Front 22

Vested Remainder Subject to Open

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1. Vested in a group of takers, at least one of whom is qualified to take - "To A for life, then to B's children" 2. [Open / Closed] open if others can still join, closed when no others can join 3. [Rule of Convenience] Class CLOSES whenever ANY member can take possession, subject to the "Womb Rule" "To A for life, then to B's Children." B has two children, C and D, and E in womb. C,D,E can demand possession. 4. [Death of Class Member] their share will go to their heirs

Front 23

Executory Interests

Back 23

1. [Definition] Future interest created in a transferee which is not a remainder and takes effect by either: [shifting] cutting short some interest of another person [springing] or in the grantor or his heirs 2. [Shifting] always follows a defeasible fee, cuts short someone other than O " 3. [Springing] comes from grantor "To A, if and when he marries" unmarried A has a springing executory interest 4. [NY: no differences b/w executory interests and contingent remainders] - both caleld "remainder subject to a condition precedent"

Front 24

The Rule Against Perpetuities

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1. Rule 2. 4 Step Technique 3. 2 Bright Line Rules 4. Reform of the RAP

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RAP - Rule

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1. ONLY for Contingent Remainders, Executory Interests, and SOME Vested Remainders Subject to Open AND ROFRS if given to heirs and assigns2. N/A to: any future interest in O, indefeasibly vested remainders, vested remainders subject to complete defeasance 3. "VOID if ANY possibility that the given interest may vest more than 21 years AFTER the death of a MEASURING LIFE." 4. Charity-to-charity exception - gifts from one charity to another does NOT violate

Front 26

RAP - 4 Step Process

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1. Identify future interest 2. Identify condition precedent to the VESTING of that interest (e.g. A must die, leaving a child) 3. Find a measuring life - a person's life or death who is RELEVANT to the condition's occurrence 4. ***Will we know, WITH CERTAINTY, within 21 years of the death of the measuring person, if our future interest holder CAN or CANNOT take?

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RAP - 2 Bright Line Rules

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1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the CL RAP (ENTIRE class gift is void) 2. Many SHIFTING EXECUTORY INTERESTS violate the RAP - one with NO LIMIT on time within which it must vest violates the RAP

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RAP - Reforms

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1. ["Wait and See" / "Second Look"] majority effort - validity is determined on basis of facts as they now exist (eliminates the what if requirement) 2. [USRAP] a. codifies common law RAP OR can use b. 90 year from grant's creation vesting period 3. [BOTH embrace]: a. "cy pres" court can reform as near possible to grantor's intent w/o violating RAP b. reduction of any offensive age contingency to 21 years (highest any can be) 4. [NY] a. applies CL RAP, and has rejected wait and see and cy pres, except in trusts b. DOES reduce age contingency to 21 years c. Fertility age is 55 d. "Suspension Rule" - interest is void if it suspends the power to sell or transfer to a period "logner than life being + 21"

Front 29

[3] Concurrent Estates

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1. Joint Tenancy: 2 or more w/ right of survivorship 2. Tenancy by the Entirety: marital interests b/w married partners w/ right of survivorship 3. Tenancy in Common: 2 or more w/o right of survivorship

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Joint Tenancy

Back 30

1. Characteristics 2. Creation / 4 Unities 3. Severance

Front 31

Joint Tenancy - Characteristics

Back 31

1. Right of survivorship - when one dies, his share automatically goes to surviving joint tenants 2. Alienable, but not devisable or descenible (because of survivorship!)

Front 32

Joint Tenancy - Creation

Back 32

*Four Unities* 1. Time 2. Title (same instrument) 3. Identical shares 4. Possession - right to possess the whole [Considerations] 1. DISFAVORED, so must CLEARLY STATE right of survivorship 2. "Straw man" required to satisfy 4 unities, but NY allows Dave to convey to "Dave and Paul as JT, WROS" instead

Front 33

Joint Tenancy - Severance

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1. Sale 2. Partition 3. Mortgage

Front 34

Joint Tenancy Severance and Sale

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1. Can sell or transfer interest w/o other's knowledge or consent 2. Buyer becomes a tenant in common, JT remains intact w/r/t everyone else 3. "Equitable conversion" - mere act of entering into a K for the sale of her share will sever the tenancy

Front 35

Joint Tenancy Severance by Partition

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1. [Voluntary agreement] - peaceful way to end 2. [Partition in Kind] - *when tenants disagree over the use of the land* court action for physical division if in best interests of all (e.g. Blackacre is rural and sprawling) 3. [Fored Sale] court action selling property and proceeds develped proportionately (single building)

Front 36

Joint Tenancy Severance by Mortgage

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1. [Title theory - minority] Mortgaging share will sever (transfers possession to lender) 2. [Lien theory - NY / Majority] mortgaging share will NOT SEVER

Front 37

Tenancy by the Entirety

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1. [Creation] between married partners who share of right of survivorship - arises presumptively in any conveyance to married partners unless stated o/w 2. [Protection] a. creditors of only ONE spouse cannot touch this (NY: mortgage interest can be enfrouces but only to debtor spouse's share and non-debtor spouse's rights can't be compromised) b. neither party alone can defeat right of survivorship by a transfer toa 3rd party - these are void

Front 38

Tenancy in Common

Back 38

1. Features 2. Rights and Duties of Co-Tenants

Front 39

Tenancy in Common - Features

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1. Each co-tenant owns an individual part (not necessarily equal), but can POSSESS the whole 2. Each interest is devisable, descendible, and alienable - no survivorship! 3. Presumption in FAVOR of tenancy in common

Front 40

Tenancy in Common - Rights and Duties of Co-Tenants

Back 40

1. [Possession] - to possess and enjoy the whole (otherwise, OUSTER) 2. [Exclusive Possession] absent ouster, tenants in exclusive possession do not owe rent to the other tenants 3. [Rent from 3rd Parties] Co-Tenant who leases all or part of their share must ACCOUNT to co-tenants for their fair share of rent income 4. [Adverse Possession] by co-tenants will not acquire title (because no hostility w/o ouster) - NY: CAN acquire via AP (implied ouster) 5. [Carrying Costs] each responsible for fair share for taxes and mortgage interest payments 6. [Repairs] repairing co-tenants enjoy a "right to contribution" for reasonably necessary repairs provided they tell the other of the need 7. [Improvements] NO right to contribution for improvements, but will entitled to a "credit at partition" equal to any icnrease in value created / liability for any drops 8. [Waste] - no waste! 9. [Partition] right to bring partition action

Front 41

[4] Landlord / Tenant Law

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1. Leasehold / Nonfreehold estates 2. Tenant's duties 3. Landlord's Duties 4. Assignments and Subleasing 5. Landlord's tort liability

Front 42

Leasehold / Nonfreehold Estates

Back 42

1. Tenancy for Years 2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance

Front 43

Tenancy for Years

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1. Lease for a period of time - expiration date known 2. No notice needed to terminate 3. If greater than >1 year, MUST be in writing

Front 44

Period Tenancy

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1. Lease that continues for successive intervals until L or T gives notice to terminated 2. [Express] "to L from month to month" 3. [Implied] a. land is leased w/ no mention of duration, but provision made for payment of rent @ set intervals b. an oral terms of years in voliation of SoF - first rental payment renders interest an implied periodic tendnecy, w/ intervals based on how rent is tendered c. "holdover" if L elects to holdover a T who wrongfuully stayed, measured by how rent is tendered (NY: presumptively month-to-month - must pay double rent!!) 4. [TERMINATION] notice must be @ least equal to length of period (but 1 year only requires 6 mos.) if not o/w agreed --> must END at the conclusion of a natural period

Front 45

Tenancy at Will

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1. No fixed duration - "To T for as long as L or T desires" 2. Unless expressly agreed upon, court will treat as implied period tenancy 3. Terminated by a "reasonable demand to vacate" (NY: 30 days written notice from L)

Front 46

Tenancy at Sufferance

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1. When T has wrongfully heldover 2. Exists only until L evicts or agrees to hold T to new tenancy 3. [NY] acceptance of rent subequent to the expiration will create an implied month-to-month periodic tnenacy unless o/w agreed

Front 47

Tenant's Duties

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1. Liability to 3rd Parties 2. Duty to Repair 3. Duty to Pay Rent

Front 48

Tenant's Duties - Liability to 3rd Parties

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1. Liable for keeping premises "in reasonably good repair" 2. Liable for injuries sustained by 3rd parties INVITED, even where L promised to make them!

Front 49

Tenant's Duties - Duty to Repair

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1. When Lease is silent 2. When expressly covenanted

Front 50

Tenant's Duty to Repair - When Lease is Silent

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1. [Standard] must maintain premises and make routine reapirs other than those due to ordinary wear and wear and tear 2. [No waste] 3. [Law of fixtures] Removing a fixture is VOLUNTARY waste: a. fixture is "movable chattel that by virtue of annexation objectively shows intent to permanently improve the realty b. pass with ownership of the lend unless o/w Ked for c. can remove so long as "no substantial harm to premises" only BEFORE lease is over

Front 51

Tenant's Duty to Repair - When Expressly Covenanted

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1. [CL] - T liable for any losss to the property, including due to force of nature 2. [Majority MBE] - T may end the lease if premises destroyed w/o T's fault 3. [NY] If destroyed w/o any fault of T, absent any undertaking, tenant may quit the premises and surrender possession w/o any further duty to pay rent

Front 52

Tenant's Duty to Pay Rent

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1. Tenant Stays in Possession 2. Tenant is Out of Possession

Front 53

Tenant's Duty to Pay Rent - Tenant in Poessession

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1. Only option is to: a. evict thru courts (becomes "tenant at sufferance" and still liable for rent) OR b. continue relationship and sue for rent due 2. No self help allowed

Front 54

Tenant's Duty to Pay Rent - T Out of Possession

Back 54

e.g., wrongfully vacates with time left on a term of years 1. [Surrender] - L could choose to treat abandonment as voluntary surrender (MUST be in writing if greaters than 1 year though) 2. [Ignore] and hold T responsible just as if T were still there - only available in minority! 3. [Re-let] on tenant's behalf and hold liable for deficiency - "Mitigation" - must at least TRY to relet (NY: No mitigation requirement)

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Landlord's Duties

Back 55

1. Duty to Deliver 2. Implied Covenant of Quiet Enjoyment 3. Implied Warranty of Habitability 4. Retaliatory Eviction

Front 56

Landlord's Duties - Duty to Delivery

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1. [English / Majority Rule] L must put T in physical possession of the premises (if someone else there, L has breached and gets damages) 2. [American Rule / Minority] L only needs to give legal possession, new T has to deal w/ holdovers

Front 57

Landlord's Duties - Implied Covenant of Quiet Enjoyment

Back 57

Right to "quiet use and enjoyment of premises" without interference for COMMERCIAL and RESIDENTIAL: 1. [Breach by actual wrongful eviction] when L wrongfully evicts or excludes] 2. [Constructive Eviction]: a. [S]ubstantial Interference due to L's actions or failures (chrnoic or permanent problem) b. [N]otice: T must notify L and L must fail to act meaningfully c. [G]oodbye: T must vacate w/i reasonable time after L fails to act 3. [Liability for Acts of Other Tenants] NO, unless: 1. L permits nuisance on sigh 2. L must control common areas

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Landlord's Duties - Implied Warranty of Habitability

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RESIDENTIAL ONLY + NON-WAIVABLE: 1. [Standard] Premises must be fit for "basic human dwelling" (via housing codes or case law 2. [T's Entitlements] 1. Move out and end lease 2. Repair and deduct (allowable by statute) 3. Reduce rent or withhold - in escrow 4. Remain in possession, pay rent and affirmatively seek $ damages

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Landlord's Duties - Retaliatory Eviction

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If T lawfully reports L for housing violations, L barred from penalizing by T (raising rent, ending lease, harrassing T, or taking other reprisals)

Front 60

Assignment and Subleasing

Back 60

1. [Assignment] when T transfers ENTIRE interest 2. [Sublease] when T transfers interest in PART 3. [FOC] Can be prohited by K without L's prior written approval, but once L agees to one transfer, he waives the right to object to future transfers unless L reserves that right 4. [NY] unless o/w provided, a residential T may not assign w/o L's consent - L can unreasonably withold and T's remedy is release unless it is a residential building having 4 or more units

Front 61

Assignment

Back 61

1. L and T2 are in "privity of estate" - liable for all of the covenants in the original lease that "run with the land (promise to pay, paint, repair) 2. L and T2 are NOT in "privity of K" unless T2 explicitly assumes all promises in the original estate - L and T1 ARE, so secondarily liable to each other

Front 62

Sublease

Back 62

L and sublessee are in neither privity of estate or K - so T1 is liable to T2 and vice versa

Front 63

Landlord's Tort Liability

Back 63

[General Rule] L under no duty to make premises safe [5 CLAP Exceptions]: 1. [C]ommon areas must be maintained 2. [L]atent defects: must warn of hidden defect L knowns or should know about 3.[A]ssumption of repairs - L who voluntarily makes repairs negligently is liable 4. [P]ublic use rule - if L leases public space (concert hal) and should know because of the "nature of defect" and "length of lease" that T will not repair is liable for defects 5. [S]hort term lease of furnished dwelling - L liable for any defects on site

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[5] Servitudes

Back 64

1. Easements 2. License 3. Profit 4. Covenants 5. Equitable Servitudes

Front 65

Easements

Back 65

1. Rule 2. Types 3. Transferability 4. Creation 5. Scope 6. Termination

Front 66

Easements - Rule

Back 66

The grant of a nonpossessory interest that entitles its holder to some form of USE or ENJOYMENT of another's land (the "servient tenement"

Front 67

Easements - Types

Back 67

1. [Affirmative] right to do something on servient land (right of access, laying power lines) 2. [Negative] prevents servient landowner from doing something - MUST BE CREATED EXPRESSLY, only for [L]ight (most common] [A]ir [S]upport [S]tream water from an artificial flow [S]cenic View (minority) 3. [Appurtenant] when it benefits holder in the physical use or enjoyment of his property (dominant tenements gets benefit, servient gers burden 4. [In Gross] confers some personal or pecnuiary advantage not related to use or enjoyment (no benefit for dominant tenement - e.g. billboard placement)

Front 68

Easements - Transferability

Back 68

1. Appurtenant easement pass automatically to dominant and servient, regardless of whether mentioned in the conveyance (servient won't pass if BFP w/o notice) 2. Easement in gross NOT transferable unless for commercial purposes

Front 69

Easements - Creation of and Affirmative Easement

Back 69

1. [P]rescription - adverse possession COAH but no exclusive use requirement! - permission negates hostility (10 years in NY) 2. [I]mplication if: a. previous use was apparent b.the parties expected the use would survive division b/c it is reasonably necessary to dominant land's use 3. [N]ecessity - landlocked - easement of right of way implied if grantor conveys portion w/ no way out except over some part of land 4. [G]rant - "deed of easement" - must be in writing to satisfy SoF

Front 70

Easements - Scope

Back 70

Set by the terms that created it - can't unilaterally expand it

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Easements - Termination

Back 71

1. [E]stoppel: servient owner materially changes his or position in reasonable reliance on holder's assurance that easement will not be enforced (e.g. builds swimming pool over right of way) 2. [N]ecessity: easements by necessity expire when need ends unless created by express grant 3.[D]estruction: of servient land other than by servient owner 4.[C]ondmenation of the servient estate by eminent domain 5. [R]elease: written release by dominant holder to servient holder 6. [A]bandonment: holder demonstrates by "physical action" intent never to use easement again 7. [M]erger: when easement and servient tenement become vested in the same person 8. [P]rescription: if servient tenement interferes by way of AP (e.g. building a fence)

Front 72

License

Back 72

1. [Rule] "Mere privilege" to enter another's land for a delineated purpose: a. not subject to SoF b. freely revocable unless estoppel applies 2. [Classic Cases] a. tickets are freely recovable licenses b. neighbors talking by fence - freely revocable license 3. [Estoppel] will bar revocation only when licenessee has invested "substantial money and/or labor" in reasonable reliance on license's continuation

Front 73

Profit

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1. Entitles its holder to enter servient land and take from it "the soil or some substance of the soil" 2. Profits shares ALL the rules of EASEMENTS

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Covenants

Back 74

1. [Rule] - "legal servitude" 2. [Covenants Running with the Land]: burden and benefit

Front 75

Covenants - Rule

Back 75

1. Promise to do or not do something (not a promise, but a COTNRACT re: the land) 2. [Negative] promise to refrain from doing something relating to land (e.g. not to build for commercial purposes) 3. [Affirmative] promise to do something re: the land (e.g. maintain a fence) 4. REMEDY = $ Damages at law (vs. injunction at equity for equitable servitude)

Front 76

Covenants Running with the Land - Burden

Back 76

1. [W]riting: original promise was written 2. [I]ntent: original parties intended covenant would run 3. [T]ouch and Concern: must affect parties legal relations as landowners 4. [H]orizontal AND Vertical privity: a. Horizontal - requires that original K was in "succession of estate" (grantor/grantee; landlord/tenant;mortgagor/mortgagee) b. Vertical - just a "non-hostile nexus" (devise, descent, K, but NOT AP!) 5.[N]otice: had notice of promise when taken (unless a DONEE or heir -- BFPs need notice)

Front 77

Covenants Running with the Land - Benefit

Back 77

No horizontal privity or notice required!

Front 78

Equitable Servitudes

Back 78

1. Creation 2. Implied / "Common Scheme" 3. Equitable Defenses

Front 79

Equitable Servitudes - Creation

Back 79

1. Promise that equity will enforce via injunctive relief 2. [NO PRIVITY REQUIRED]: Writing, Intent, Touch and Concern, Notice for assignees of BURDENED land

Front 80

Equitable Servitudes - Common Scheme Doctrine

Back 80

Court will imply a reciprocal negative servitude if: 1. When the sales began, there was a general scheme of residential development which included D's lot 2. Defendant holder had NOTICE of the promise contained in the prior deeds via: a. [A]ctual notice b. [I]nquiry notice - neighborhood reforms to the common restriction - "lay of the land" c. [R]ecord notice - based on publicly recorded documents 4. [NY / Majority] subsequent buyer does NOT have record notice of prior deeds transferred to others by the common grantor

Front 81

Equitable Servitudes - Defenses to Enforcment

Back 81

1. Changed Conditions: so pervasive that the "entire area has changed", i.e. not "mere pockets of limited change" 2. This is is ALL or NOTHING re: subdivisions

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[6] Adverse Possession

Back 82

1. Rule 2. Elements 3. Tacking 4. Disabilities

Front 83

AP - Rule

Back 83

Possession, for a statutorily prescribed period of time, can "ripen into title" - NY 10 years!

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AP - Elements

Back 84

1. [C]ontinous: uninterrupted for statutory period 2. [O]pen and Notorious: sort of possession a usual owner would make under the circumstances 3. [A]ctual: literal, not symbolic entry 4. [H]ostile: possessor does not have owner's consent -- a. [MBE] subjective state of mind irrelevant b. [NY] possessor must have a GF belief that land is his 5. [E]xclusive (not a requirement for easement by prescription)

Front 85

AP - Tacking

Back 85

1. One AP can tack his time with the land w/ predecessor's so long as "privity" - "non-hostile nexus" such as blood, K, deed, will 2. NOT allowed when there has been OUSTER

Front 86

AP - Disabilities

Back 86

SoL will not run against a true owner who has a disability (insanity, infancy, imprisonment) at the START of the AP

Front 87

[7] Land Conveyancing

Back 87

1. The Land Contract 2. The Closing

Front 88

Land Conveyancing - The Land Contract

Back 88

1. Statute of Frauds 2. Risk of Loss 3. Implied Promises 4. Implied Warranties

Front 89

The Land Contract - Statute of Frauds

Back 89

[Requirements] 1. in writing 2. signed by party to be bound 3. some consideration 4. describe Blackacre (if amount of land in K is MORE than actual size, remedy is specific performance w/ pro rata reduction in price) [Part Performance Exception] Requires 2 of the following to satsify specific performance for an oral K for the sale of land: 1. B takes possession 2. B pays all or part of price 3. B makes substantial improvements

Front 90

The Land Contract - Risk of Loss

Back 90

1. [MBE] Doctrine of Equitable Conversion - once the K is SIGNED B owns the land! 2. [Destruction - MBE] B will bear risk of loss once K is signed, unless B says o/w in K 3. [Destruction - NY] so long as buyer is w/o fault, RoL remains w/ seller until B has title or takes possession

Front 91

The Land Contract - Implied Promises

Back 91

1. Marketable Title 2. False Statements

Front 92

Implied Promises - Marketable Title

Back 92

[Standard] "title free from reasonable doubt", i.e. free from lawsuits and threat of litigation [3 circumstances rendering title "unmarketable"] 1. AP (even if part of title rests on this), without a quiet title action 2. Encumbrances (servitudes and mortgages, unless B has waived - Seller has right to satisfy mortgage with proceeds of the sale!) 3. Zoning violiations - when Black acre actually VIOLATES an ordinance

Front 93

Implied Promises - False Statements

Back 93

[Standard] seller liable for FAILURE to disclose latent material defects --> material lies and omissions [Effect of Disclaimer] Disclaimer of liability ("property sold as is" or "with all faults" is NOT an excuse for fraud or failure to disclosure

Front 94

The Land Contract - Implied Warranties

Back 94

[General Caveat Emptor Standard] NO implied warranties or fitness or habitability [XC] implied warranty of fitness and workmanlike construction applies to the sale of a NEW HOME by a BUILDER VENDOR

Front 95

The Closing

Back 95

1. Lawful Execution 2. Delivery 3. Covenants for Title / 3 Types of Deed

Front 96

The Closing - Lawful Execution

Back 96

[Standard for Lawful Execution of a Deed - "Lawfull Executed and Delivered"]1. in writing, signed by Grantor 2. description must be "unambiguous" + LEAD (not perfect) 3. no consideration need be recited or passed

Front 97

The Closing - Delivery Requirement

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1. Satisfied when grantor physically transfers to grantee (mail agent or messnger permissible) 2. Does NOT require physical transfer of the instrument of itself 3. [Standard - Intent] "present intent to be bound" irrespective of whether handed over 4. Express REJECTION, defeats delivery 5. ORAL CONDITIONS w/ delivery drop out 5. Delivery by ESCROW is OK (e.g. if certain conditions are met - allows to still pass when grantor dies or becomes incompetent)

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The Closing - Covenants for Title and 3 Types of Deed

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1. Quitclaim 2. General Warranty Deed 3. Statutory Special Warranty Deed

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Covenants for Title - Quitclaim

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1. Containts NO covenants - not even promising that he has title to convey 2. BUT, did implicitlly promise in the land K to provide marketable title @ Closing 3. Any POST-closing problems have no remed

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Covernants for Title - General Warranty Deed

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*The best - warrants against all defects in title, including those due to Grantor's Predecessor* containes both: 1. [Present Covenants] breached @ delivery, SoL begins @ delivery 2. [Future Covenants] not breached until grantee is disturbed in possession, SoL runs @ that date

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General Warranty Deed - Present Covenants

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1. [Covenant of seisin] that Grantor owns the estate 2. [Covenant of right to convey] grantor has power to transfer (i.e. no temporary restraints or disabilities) 3. [Covenant against encumbrances] no servitudes or mortgages

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General Warranty Deed - Future Covenants

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1. [Covenant for quiet enjoyment] grantee won't be disturbed in possession by 3rd party's lawful claim of title 2. [Covenant of warranty] grantor will defent grantee against lawful title claims brought by others 3. [Covenant for further assurance] Grantor will do whatever is needed to perfect the title

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Covenants for Title - Statutory Special Warranties

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Contains 2 promises that grantor makes ONLY on behalf of himself, and makes no reps on behalf of his predecessors in interest: 1. Grantor promises he hasn't conveyed estate to anyone other than grantee 2. Estate is free from encumbrances made by grantor [NY - this is called a "Bargain Sale Deed"]

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[8] The Recording System

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1. 2 Bright Line Rules 2. Two "Routine Value" Questions 3. Types of Notice 4. The Recording Statutes 5. Discrete Chain of Title Problems

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Recording System - 2 Bright Line Rules

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[Rules] 1. If B is BFP in a NOTICE jurisdiction, ALWAYS wins 2. If B is BFP in a race-notice jursidction B WINS IF SHE RECORDS FIRST (NY: Race-notice!) [Policy] Exists to protect only BFPs and mortgagees [BFP Definition] 1. Purchases for value 2. w/o NOTICE someone got there first

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Recording System - 2 "Routine Value" Questions

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1. [Bargain Basement Sale] OK if price was less than original buyer, so long as B remits "substantial pecuniary consideration" 2. [Doomed Donee] Heirs, devisee, and donees will lose unless "Shelter Rule" applies

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Recording System - Types of Notice

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1. [Actual] B learns of a 2. [Inquiry] a. on notice of whatever a "routine inspection" would show b. duty to INSPECT before transfer of title (so if someone is in posession, B has notice!) c. if a recorded instrument references an unrecored transaction, grantee is on notice of "whatever a reasonable follow up would show" 3. [Record] on record notice if at the time B takes, A's deed was recorded properly w/i chain of title

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Recording Statutes - Notice Statute

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"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, -/- unless the conveyance is recorded -/-." - LAST BFP to enter wins! FOR MORTGAGES: priority goes in order of BFPs (watch when they record - if it's in response to learning of another mortgage, they lose BFP status)

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Recording Statutes - Race-Notice Statute

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NY Rule: "Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded." - B Must be: 1. A BFP 2. Win the race to record FOR MORTGAGES: first in time to record, first in right FOR PMSIs: must record, but have 20 day grace period!

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Discrete Chain of Title Problems

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[Why this matters] If properly recorded, defeats BFP b/c of record notice - must be w/I "chain of title", ie. In the sequence of recorded documents capable of giving record notice (usually through grantor/grantee index) [3 Problems] 1. Shelter Rule 2. Wild Deed 3. Estoppel by Deed

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Chain of Title Problems - Shelter Rule

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One who takes from a BFP can prevail against any entity that the transferor or BFP would have prevailed against - "steps into the shoes" of BFP regardless of their own status (e.g. a donee!)

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Chain of Title Problems - Wild Deeds

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[Rule] Wild deeds are incapable of giving notice - i.e. if it has a "grantor unconnected to the chain of title" [Effect of Recording a Wild Deed] Becomes a NULLITY

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Chain of Title Problems - Estoppel by Deed

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[Rule] One who conveys realty in which he has no interest is ESTOPPED from denying the validity of that conveyance if he later acquires that property

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[9] Mortgages

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1. Creation 2. Equitable Mortgage 3. Rights of Parties 4. Transferring Interests 5. Foreclosure 6. Redemption

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Mortgages - Creation

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The conveyance of a S/I in land, intended by parties to be collateral for the repayment of a debt, consists of: 1. A debt 2. voluntary transfer of a S/I in debtor's land to secure that debt (debtor = mortgagor, creditor=mortgagee)

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Mortgages - Equitable Mortgage

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Occurs when there is intent to use the property as collateral, but O hands creditor an absolute deed on it's face rather than a note or mortgage deed. 1. Parol Evidence freely admissible to show parties intent 2. If Creditor sells to a BFP, O's only recourse is to proceed against creditor for fraud and the sale proceeds

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Mortgages - Rights of Parties

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1. [Mortgagor] unless and until foreclosure, has TITLE and RIGHT of POSSESSION 2.[Mortgagee] has a LIEN

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Mortgages - Transferring Interests

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*The Mortgage automatically follows a propertly transferred note* 1. Mortgagee 2. Mortgagor 3. Personal liablity

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Transferring Interests - Mortgagee

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[Mechanics] Can transfer interest by: 1. endorsing note + deliverying to transferee OR 2. executing a separate document of assignment [Endorse + Delivery] Transferee is eligible to become a "holder in due course," and takes title free of any "defenses that could have been raised against original creditor (i.e. ordinary K defenses, but not the "real" defenses below)

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Transferring Interests - Real Defenses

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Can be raised by Debtor: MAD FIFI4 1. [M]aterial [A]lteration 2. [D]uress 3. [F]raud [I]n [F]actum: lie about the instrument itself 4. [I]ncapacity 5. [I]nfancy 6. [I]llegality 7.[I]nsolvency

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Transferring Interests - Holder in Due Course Criteria

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1. Note must be negotiable, made payable to named mortgagee 2. original note must be "indorsed, signed by the named mortgagee 3. Original note must be DELIVERED to transferee - no photocopies 4. Transferee must take in GF w/o notice of illegality 5. Transferee must pay VALUE (e.g. more than nominal)

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Transferring Interests - Mortgagor

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1. [Recording Statutes / Effect] Lien remains on the land, so long as interest was properly recorded - recording statutes apply!* 2. [Personal Liability] a. If B "assumes mortgage" - BOTH O and B are liable b. If B takes "subject to mortgage", B assumes NO personal liability (but can still be foreclosed b/c mortgage runs w/ land!) 3. [Death of Mortgagor] must expressly devise the burden of satisfying the mortgage, o/w no one is personally liable

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Foreclosure

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1. Rules 2. Effect on Interests 3. Priorities

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Foreclosure - Rules

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1. [Judicial action] where land is sold and proceeds go to satisfying debt 2. [Deficiency] D liable if proceeds do not satsify the debt 3. [Surplus] junior liens paid off in priority, remaining surplus goes to D 4. [Attorney's fees, expenses, accrued interest] come off the top

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Foreclosure - Effect on Interests

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1. [Junior interests] terminated b/c joined in - can no longer look to property for satisfaction 2. [Senior interests] not affected - Buyer takes land subject to these, but not personally liable (incentive to pay this off to take clear of S/I) 3. [Necessary Parties] must be joined - subordinate interests and Debtor - o/w their interests are unaffected!

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Foreclosure - Priorities

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*need to RECORD o/w no priority* 1. [Generally] FiT, FiR 2. [PMM XC - SUPERPRIORITY] A mortgage given to secure a loan that enables the debtor to acquire the encumbered land - most first time home-owners! - has superpriority 3. [Subordination Agreements] permissible

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Redemption

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1. Redemption in Equity 2. Statutory Redemption

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Redemption in Equity

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1. Equitable Redemption recognized up to the date of the sale - Debtor has the right to redeem land and free it of mortgage 2. [Payment] is missed payments, plus interest, plus cost 3. [Acceleration Clause] must pay full balance, accrued interest, plus cost 4. [Unwaivable!] - known as "clogging"

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Statutory Redemption

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recognized in half the states … 1. [Timing] allows Debtor to redeem AFTER the foreclosure sale (6mos - 1 yr) 2. [Payment] usually the foreclosure price 3. [Possession] remains with mortgagor during the statutory period *N/A in NY!*

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[10] Ancillary Issues

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1. Lateral Support 2. Water Rights 3. Possesor's Rights 4. Eminent Domain 5. Zoning

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Lateral Support

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1. [Negligence] If land is improved by buildings and an adjacent landowner's excation caused that improved land to cave in, excavator liable if negligent 2. [Strict liability] only applies if P shows that the improvements on the land itself did not contribute to the land's collapse (i.e. it would have collapsed in its natural state from P's actions)

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Water Rights

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1. Allocation 2. Ground water 3. Surface Water

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Water Rights - Allocation

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1. [Riparian Doctrine] Water belong to those who own the land bordering it, who share the right of "reasonable use of the water" and will be liable for "unreasonable interference" *NATURAL uses > ARTIFICIAL uses* 2. [Prior Appropriation] Right to divert water can be required by an individual from the state, determined FiT FiR by "priority of beneficial use" (any productive or beneficial use - including agriculture)

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Water Rights - Groundwater

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1. AKA "percolating water" 2. Surface owner is entitled to make "reasonable use," so long as it they are not wasteful

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Water Rights - Surface Waters

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"Common enemy water" that comes from rain, springs or melting snow and have not yet reached a natural watercourse 1. A landowner may change drainage or make any other changes / improvements to combat the flow of surface water 2. Many courts have modfiied to prohibit "unnecessary harm to another's land" 3. [Natural Flow Theory] can't alter natural flow to harm others

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Possessor's Rights

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Right to be Free from: 1. Trespass 2. Nuisance

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Possessor's Right - Trespass

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Requires 1. invasion of land 2. by a physical object --> right to bring an EJECTMENT action

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Possessor's Rights - Nuisance

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1. "Substantial unreasonable interference" w/ another use and enjoyment of the land 2. Includes ODORS and NOISE - no tangible, physical invasion requirement 3. [Hypersensitive Ps] no nusiance when problem is due to "supersensitivity" or "specialized use"

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Possessor's Rights - Eminent Domain

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1. Gov't 5th Amendment power to take private property for public use in exchange for just compensation 3.[Implicit / Regulatory] if in "economic wipeout" of your investment 4. [Remedy] either compensate owner or terminate regulation and pay damages

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Zoning

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1. Pursuant to police powers, gov't may enact statutes to "reasonably control land use" 2. [Variance] principal means to achieve flexibility - determined by administrative action - must show: a. undue hardship b. variance won't work detriment to surrounding property values 3. [Nonconforming Use] a once lawful, existing use cannot be eliminated all at once w/o just compensation --> could be a taking 4. [Unconstitutional Exactions] "amenities gov't seeks in exchange for granting permission to build" - must be "reasonably related in anture and scope to impact of proposed development"