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135 Cards in this Set
- Front
- Back
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What are the four kinds of present estates in land?
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Fee simple absolute
Fee tail Defeasible fees Life estate |
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What are the characteristics of a fee simple absolute?
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Absolute ownership
Of potentially infinite duration Freely divisible, descendible, alienable |
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How is a fee simple absolute created?
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"To A and his heirs" or "To A" is sufficient
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What are the future interests associated with a fee simple absolute?
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freely alienable, descendable, divisible
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What are the characteristics of a fee tail?
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TODAY: creation of a fee tail creates a fee simple absolute
Fee tail would pass directly to grantee's lineal blood descendants no matter what |
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How is a fee tail created?
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"To A and the heirs of his body"
Abolished in MD |
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What are the future interests associated with a fee tail?
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Grantor O gets a reversion
3d party grantor gets a remainder |
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What are the three kinds of defeasible fees?
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Fee simple determinable
Fee simple subject to a condition subsequent Fee simple subject to executory limitation |
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What are the characteristics of a fee simple determinable?
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Divisible, descendable, alienable BUT subject to the condition
Can't convey more than you have |
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How is a fee simple determinable created?
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"To A for so long as…", "To A during", "To A…until"
Requires clear durational language If the condition is violated, forfeiture is automatic |
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What are the future interests associated with fee simple determinables?
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Grantor O gets a possibility of reverter*
FSDPOR |
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What are the characteristics of a fee simple subject to a condition subsequent?
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Estate is NOT automatically terminated
Can be cut short at grantor's option if the condition occurs |
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How is a fee simple subject to a condition subsequent created?
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"To A, but if X occurs, grantor reserves the right to reenter and retake"
Clear durational language AND Carves out the right for the grantor to reenter |
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What are the future interests associated with fee simple subject to a condition subsequent?
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Grantor gets a right of reentry/power of termination
NOTE: 7 year statute of limitations from date of breach |
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What are the characteristics of a fee simple subject to executory limitation?
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If the condition is broken, forfeiture is automatic in favor of someone else
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How is a fee simple subject to executory limitation created?
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"To A, but if X occurs, then to B"
3d party stands to benefit Means you have a fee simple subject to a shifting executory interest |
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What are the future interests of a fee simple subject to an executory limitation?
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Third party gets a shifting executory interest
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What are the two rules of construction for defeasible fees?
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Words of "hope," "desire," "intention, "purpose," "expectation" NOT sufficient to create a defeasible fee; requires clear durational language
Absolute restraints on alienation are void |
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What are the characteristics of a life estate?
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Doctrine of waste
Life tenant is entitled to all ordinary uses and profits from the land Life tenant can't do anything to hurt future interests holders |
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How is a life estate created?
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Measured in explicit lifetime terms and NOT in terms of years
"To A for life": Makes A a life tenant Life estate pur autre view: life estate measured by life other than the grantee |
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What are the future interests associated with a life estate?
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Grantor gets a reversion: at end of lifetime, estate reverts back to him or his heirs
3d party has a remainder |
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What are the grantor's three future interests and with what present interest are they associated?
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Possibility of reverter: accompanies only a fee simple determinable
Right of entry/power of termination: accompanies only the fee simple subject to condition precedent Reversion: arises in a grantor who transfers an estate of lesser quantum than she started with |
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What are the third party's six future interests?
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Contingent remainder
Indefeasibly vested remainder Vested remainder subject to complete defeasance/subject to total divestment Vested remainder subject to open Shifting executory interest Springing executory interest |
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What is a remainder?
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A future interest created in a grantee capable of becoming possessory upon 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, which is usually a 1) life estate or 2) a term of years Never follows a defeasible fee |
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What is a contingent remainder generally?
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Created in an unascertained/unknown/unborn person OR
Subject to a condition precedent OR both Means condition appears before the language creating the remainder or is woven into the grant |
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What is the rule of destructibility of contingent remainders?
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At common law, made it more difficult for contingent remainders to exist
Contingent remainder was destroyed if it was still contingent at time preceding estate ended Abolished today |
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What is the rule in Shelley's case?
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Common law: Came up where O conveyed "to A for life, then on A's death, to A's heirs" and A is alive
Present and future interests would merge giving A a fee simple absolute Today: is virtually abolished, including in MD |
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What is the doctrine of worthier title/rule against a remainder in grantor's heir?
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When O, who is alive and tries to create future interest in his heirs (O conveys "to A for life, then to O's heirs")
Contingent remainder in O's heirs is void; A has a life estate and O has a reversion Is a rule of construction; grantor's intent controls; if he clearly intends to create a contingent remainder in his heirs, it is binding |
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What is an indefeasibly vested remainder?
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Holder (B) is certain to acquire an estate in the future with NO conditions attached
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What is a vested remainder subject to complete defeasance/subject to total divestment?
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Remainderman's taking is NOT subject to any condition precedent BUT his right could be cut short b/c of a condition subsequent
Use the comma rule to distinguish conditions subsequent and precedent Condition subsequent: conditional language follows language that, taken alone and offset by commas, would create a vested remainder Condition precedent: conditional language appears before language creating the remainder |
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What is a vested remainder subject to open?
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Remainder is vested in a group of takers, at least one of whom is qualified to take
Each member's share is subject to partial diminution b/c additional takers can still qualify as class member Three. Who can participate depends on if the class is open or closed First. Open: possible for others to enter Second. Closed: maximum membership has been set Use the common law rule of convenience to tell: class closes whenever any member can demand possession (at B's or A's death above) Once A dies, child of B born/conceived thereafter does NOT share in the gift EXCEPT if in the womb when A dies (womb rule) If C or D dies before A, their share goes to their divisees or heirs |
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What is an executory interest?
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Future interest created in a third party which is not a remainder and which takes effect either by
1) Cutting short some interest in another person (shifting) 2) Or in the grantor or his heirs (springing) |
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What is a shifting executory interest?
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Always follows a defeasible fee AND
Cuts short a 3d party "To A and her heirs, but if B returns from Canada next year, to B and his heirs" |
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What is a springing executory interest?
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Cuts short the grantor
"To A, if and when he marries". A is unmarried |
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What is the rule against perpetuities?
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Makes certain kinds of future interests void if there is any possibility, no matter how remote, that the given interest may vest more than 21 years after the death of a measuring life
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To what future interests does RAP apply?
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Yes: contingent remainders, executory interest, certain vested remainders subject to open
No: any future interest in O, indefeasibly vested remainder, vested remainder subject to complete defeasance |
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What is a joint tenancy and what are its characteristics?
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Two or more own the right of survivorship
Characteristics Right of survivorship (T dies, share goes to co-T) Alienable: can sell/transfer interest in your lifetime NOT divisible (can't put it in will) NOT descendable (can't give to heirs) |
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What are the three types of concurrent estates?
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Joint tenancy
Tenancy by the entirety Tenancy in common |
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How is a joint tenancy created?
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Joint tenants must take their interests (T-TIP)
T: At the same time T: In the same title I: Must be identical interests P: Have identical rights to possess the whole Grantor must clearly express the right of survivorship (for MBE) b/c joint tenancies are disfavored MD DISTINCTION: Magic words "right of survivorship" NOT required; "joint tenancy" sufficient so long as there is intent to create a joint tenancy Use of straw to create four unities (NOT in MD) |
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How is a joint tenancy severed?
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Sale
Partition Voluntary agreement Partition in kind: court action for physical division Forced sale Mortgage Title theory of mortgages: One joint tenant's execution of a mortgage or lien on his or her share will sever the joint tenancy as to the now encumbered share Lien theory of mortgages: joint tenant's execution of a mortgage on his interest will not sever joint tenancy |
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What is a tenancy by the entirety and what are its characteristics?
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Protected marital interest between husband and wife with the right of survivorship
Very protected form of co-ownership Creditors of one spouse can't touch the tenancy Unilateral conveyance rule: neither tenant acting alone can defeat the right of survivorship by unilateral conveyance to a third party |
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How is a tenancy by the entirety created?
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Only created in husband and wife with right of survivorship
Where recognized, it arises presumptively in any conveyance between spouses unless clearly stated otherwise |
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How is a tenancy by the entirety severed?
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Voluntary partition
Conveyance signed by both Divorce |
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What is a tenancy in common?
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1) Definition: Two or more own with no right of survivorship
Each cotenant owns an individual part Each has right to possess the whole Each interest is descendable, divisible, alienable No survivorship rights between tenants in common Presumption favors tenancy in common |
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What are the four kinds of non-freehold estates?
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Tenancy for years
Periodic tenancy Tenancy at will Tenancy at suffrance |
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What is a tenancy for years?
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Lease for a fixed period of time
No notice needed to terminate If > year, must be in writing |
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What is a periodic tenancy?
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Continues for successive intervals
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How is a periodic tenancy created?
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Can be created 1) expressly or 2) by implication through a) payment of rent at set intervals, b) term of years that is oral in violation of SOF, or c) a holdover tenant in a residential lease
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How is a periodic tenancy terminated?
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Terminated by notice, usually in writing
Must be at least equal to the length of the lease itself unless parties otherwise agree (in MD, can only lengthen) Tenancy of one year or more: 6 months notice required |
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What is a tenancy at will?
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No fixed duration
Payment of regular rent causes courts to treat it as an implied periodic tenancy unless agreement otherwise |
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How do you terminate a tenancy at will?
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By either party at either time so long as there is a reasonable demand to vacate
MD: one month's notice |
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What is a tenancy at sufferance? How long does it last?
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Created when T wrongfully holds over expiration of the lease
Lasts until L evicts T OR creates a new tenancy with T |
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What are T's duties to L?
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Duty to repair
Where lease is silent: 1) duty to make ordinary repairs (MD: residential lease must specify the duty), 2) duty not to commit waste (MD: double damages), 3) duty not to remove fixtures Where T covenants to maintain property in good condition: may terminate lease when premises destroyed without T's fault in MD/majority states; common law held T responsible for any loss Duty to pay rent Duty to keep premises in reasonably good repair; T is liable for injuries to 3d parties he invites over |
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What are L's remedies if T fails to pay rent?
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If T remains: L can evict through courts (MD: 8-401 action) or continue the relationship and sue for rent
If T leaves: SIR Surrender (must be in writing if unexpired term > 1 year) Ignore abandonment and hold T responsible for rent Relet and hold T liable for deficiency |
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What are L's duties to T?
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Duty to deliver possession
English rule/MD: must put T in actual, physical possession In MD: if L breaches, T can end the lease and not pay rent Implied covenant of quiet enjoyment Implied warranty of habitability Can't retaliate if T reports L for housing code violations |
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What is the implied covenant of quiet enjoyment?
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Right to quiet use and enjoyment of hte premises
Breach occurs from 1) wrongful eviction (or exclusion) OR 2) constructive eviction Constructive eviction occurs when there is Substantial interference T gives L notice and he fails to act T vacates within a reasonable time |
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Is T liable for the acts of other tenants?
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NO unless
Nuisance Common areas |
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What is the implied warranty of habitability?
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Premises must be fit for human habitation
Applies only to residential premises |
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What can T do if L breaches the implied warranty of habitability?
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Move out and end lease
Repair and deduct Reduce or withhold rent Remain in possession and seek damages |
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What is an assignment?
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T transfers whole interest to someone else
No longer in privity of estate with L but is in privity of contract (secondarily liable to L) Assignee is in privity of estate with L for all covenants in the original lease that run with the land |
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What is a sublease?
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T transfers part of his property interest to someone else
Nexus between L and T1 is intact |
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When is L liable in tort to T?
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Common areas
Latent defects: only a duty to warn Assumption of repairs: if L repairs, must do so with reasonable care Public use rule: L who leases public space and knows T won't repair Short term lease of a furnished dwelling |
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What is an easement?
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Grant of a nonpossessory property interest that entitles the holder to some form of use or enjoyment
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What's the difference between affirmative and negative easements?
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Affirmative: right to do something on another's land
Negative: right to prevent landholder from doing something (light, air, support, stream water from an artificial flow) Can only be created by express writing |
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What's the difference between an appurtenant and in gross easement?
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Appurtenant: benefits holder in his physical use or enjoyment of his property; are two parcels
Transfer automatically with the dominant tenement and servient tenement unless new owner is a bona fide purchaser without notice In gross: confers on holder only personal or pecuniary advantage not related to the use or enjoyment of his land Not transferable unless for commercial purposes |
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How is an affirmative easement created?
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Prescription: adverse possession
Implication: from existing use Necessity: right of way will be implied necessity if no way out Grant: easement for > year must be in writing that complies with formal elements of a deed |
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What is the scope of an easement?
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Defined by terms that created it
No unilateral expansion |
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How do you terminate an easement?
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Estoppel
Necessity Destruction of hte servient land, other than through willful conduct of the servient owner Condemnation: eminent domain Release: written release Merger/unity of ownership Prescription/adverse possession |
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What is a license?
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Mere privilege to enter another's land for some delineated purpose
Freely revocable unless estoppel applies |
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What is a profit?
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Entitles holder to enter teh servient land and take from it the soil or soil's substance
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What is a covenant?
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Promise to do or not do something related to land
Can be affirmative or negative? |
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What distinguishes a covenant from equitable servitude?
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Covenant: seek $ damages
Equitabl servitude: seek injunction |
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When are successors bound by a covenant?
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When it runs with the land
Burden must run (WITHN): Writing, Intent, Touch and Concern the land, Horizontal and Vertical privity, Notice Benefit must run (WITV): Writing, Intent, Touch and Concern the land, Vertical privity |
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When does an equitable servitude run with the land?
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Writing, Intent, Touch and Concern the land, Notice
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What is an equitable servitude?
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Promise that equity will enforce against successors
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What is an equitable defense to enforcement of an equitable servitude?
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Changed conditions
Must be so pervasive that the entire area has changed |
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What is an implied equitable servitude?
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General or common scheme: court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the covenant where:
1) When the sale began, subdivider A had a genenral scheme of residential development, which included D's lot 2) D had notice of the promise (actual, inquiry, or record) In MD: when grantor has recorded a written declaration of the common scheme that refers to the applicable lots, it is presumed that the grantor didn't intend to impose the scheme on the lots not mentioned |
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What is adverse possession? In MD?
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Possession ripens into title if:
Continuous: 20 years in MD Open and notorious Actual Hostiole |
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When can an adverse possessor engage in tacking?
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There is privity between him and a previous possessor
Can't be ouster |
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What are the rights and duties of a life tenant?
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Entitled to all ordinary uses and profits of the land
Can't do anything to hurt future interets Can't commit waste Voluntary: can't exploit natural resources unless there's prior use, for reasonable repairs, grant, or exploitation Permissive: has to pay taxes, make ordinary repairs Ameliorative: not without consent |
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What is a tenancy at suffrance?
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Created when T wrongfully holds over past expiration of lease
L can recover rent Lasts only until L evicts or creates new tenancy with T |
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What is T's liability to third parties under tort law?
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T is liable for injuries to 3d parties that he invites over, even if L promised to repair
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What are T's duties to L?
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Duty to repair: maintain premises and make ordinary repairs
Duty not to commit waste Including fixtures BUT if premises is destroyed without fault, T isn't liable for rent Duty to pay rent |
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What is the law of fixtures?
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Fixture is a once moveable chattel that by virtue of installation to the realty objectively shows intent of party to permanently improve property
Is a fixture if removing it would cause substantial harm Means T has committed voluntary waste and can't remove it |
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What remedies does L have if T fails to pay rent?
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IF T is still on premises:
Evict (8-401 aaction) Continue relationship and sue for rent No self help If T has vacated: Surrender: treat T's abandonment as implicit offer of surrender, so L must send something in writing accepting Ignore: and sue for unpaid rent Relet: must try to relet as duty to mitigate (MD: only duty for residential leases) |
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What are L's duties to T?
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Duty to deliver possession
English rule: deliver actual possession American rule Implied covenant of quiet enjoyment T liable for wrongful eviction or Constructive eviction (substantial interference, T gives notice and vacates within reasonable time after L doesn't fix problem) L not liable for acts of third parties except Nuisance Common areas Implied warranty of habitability (residential only): fit for basic human habitation If L breaches, T can move out, repair and deduct, reduce rent, remain in possession and seek damages |
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What are the relationships of L, T1,and T2 in an assigment?
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L and T2: privity of estate, liable for all covenants that run with the land
L and T1: privity of contract; secondarily liable to each other |
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What are the relationships of L, T1,and T2 in a sublease?
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L and T1: still in privity of contract and estate; can't sue T2
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What are L's tort liabilities?
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Common areas
Latent defect rule: duty only to warn, not repair Assumption of repairs Public use rule: if L leases public space and should know T won't repair Short-term lease of furnished dwelling |
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What is an easement?
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Grant of a nonpossessory interest that entitles the holder to some form of use or enjoyment of the land
Affirmative: right to do something Negative: prevents servient landowner from doing something |
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What are the types of negative easements? How are they created?
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Light
Air Support Stream water from artificial flow Minority view: scenic view Must be created expressly in writing |
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What is an easement appurtenant?
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Affects two pieces of land
Passes automatically with dominant tenement Passes automatically with servient tenement unless new owner is BFP wihtout notice (but a path on land gives inquiry notice) |
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What is an easement in gross?
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Confers only some pecuniary or commercial advantage not related to use or enjoyment of the land (no dominant tenement)
Ex: billboard Not transferrable unless for commercial purposes |
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How do you create an affirmative easement?
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Prescription
Implication: if apparent at time land was divided AND reasonably necessary Necessity: at time of conveyance Grant (in writing if >1 year) |
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What is the scope of an easement?
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No unilateral expansion allowed
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How do you terminate an easement?
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END CRAMP
Estoppel (of servient owner who relies on end of easement) Necessity ends Destruction: other than through servient owner Condemnation Release: written release by servient owner Abandonment: easement holder must demonstrate physical action, not mere nonuse or words Merger Prescription |
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What is a license?
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Mere privilege to enter someone's land for a delineated purpose
Freely revocable unless estoppel |
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What is a profit?
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Entitles holder to enter and take soil or substance from soil
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What is a real covenant?
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Promise to do or not do something related to land; not a property interest; just a contractual limitation
Can be affirmative or negative |
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When does a covenant run with the land?
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Burden side requires:
Writing establishing promise between A and B Intent of A and B Touch and concern the land Horizontal privity: has to be succession of estate (grantor/grantee, L/T, mortgagor/mortgagee) Vertical privity: contract, devise, or descent Notice: A1 has to have had notice when she took for A (the burdened parcel) Benefitted side requires: Writing Intent Touch and concern Vertical privity |
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What is an equitable servitude?
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Promise that equity will enforce against successors
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When does an equitable servitude run with the land?
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Writing
Intent Touch and concern Notice to successor of burdened land |
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What is an implied equitable servitude?
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Court implies a reciprocal negative servitude if:
When sales began, A had a general scheme of residential development which included D's lot D had notice of the promise contained in the other deeds In MD, D is on record notice of prior deeds transferred to others by common grantor (not majority rule) Any neighbor can enforce if silent as to who holds benefit |
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What is the defense to enforcement of an equitable servitude?
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Changed conditions: must be so pervasive that the entire area has changed, not just pockets
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What are the elements of adverse possession?
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Continuous, uninterrupted possession for 20 years
Open and notorious: sort of ownership that a usual owner would make Tacking is permitted if there's privity SOL won't run against owner who is disabled at the inception of adverse possession (infancy, insanity, imprisonment) MD: disabled person has 3 years after termination or remainder of 20 years to file claim Actual and exclusive Hostile |
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What are the two steps of land conveyance?
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Land contract
Closing |
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What does a land contract require?
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Must be in writing signed by party to be bound
Exception: part performance where buyer takes possession, pays all or part of purchase price and/or makes substantial improvements Must describe land Consideration required If land recited is more than actual land, remedy is pro rata reduction in price |
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What is the doctrine of equitable conversion?
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If between contract and closing property is destroyed through no fault, buyer bears risk of loss unless contract says otherwise
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What are the two implied promises in every land contract?
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Seller promises to provide marketable title at closing
Free from reasonable doubt, lawsuit, threat of lawsuit No adverse possession (except OK in MD), no encumberances, no zoning violations Seller promises not to make any false statements of material fact (as is: no excuse) MD: seller must disclose major defcts in writing for single family homes NO implied warranty of habitability UNLESS seller is builder-vendor; then there's warranty of fitness and workmanlike construction |
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What happens at closing?
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Lawful execution of a deed must be in writing, must describe land, must be delivered
BUT delivery is about present intent; need not be direct Delivery through escrow agent ok: court looks at intent at time of deposit with agent If delivered with oral condition, it drops out (except in MD) |
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What are the three types of deeds?
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Quitclaim: no covenants, not even as to title
General warranty deed: warrants against all defects in title, even as to predecessors; includes 6 covenants: Covenant of seisin: promise that he owns estate Covenant of right to convey: has power/isn't under disability Covenant against encumberances: no servitudes/liens Covenant for quiet enjoyment: grantee won't be disturbed by 3d party claim of title Covenant of warranty: promises to defend if there's lawful claim of titled asserted by 3d party Covenant for further assuranecs: will take acts reasonably necessary to perfect title if later turns out to be imperfect Statutory special warranty: two promises and only on behalf of himself Promise that he hasn't conveyed the property to anyone else Promise that there are no encumberances from grantor |
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What is a bona fide purchaser?
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Someone who buys property for value AND
Without notice that someone else got there first Only one that recording statute protects |
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What are the three types of notice?
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Actual
Inquiry: duty to inspect before transfer of title; if recorded instrument references an unrecorded transaction, buyer is on notice Record |
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When does B take if he's a BFP?
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Notice state: B, even if A records first
Race notice: B only if B records first |
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What is the Shelter Rule?
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One who takes from BFP will prevail against any person the BFP would have; he steps into the shoes, even if he's not a BFP
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What is a wild deed?
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Deed entered on the record from A to B has a grantor unconnected to the chain of title, so there's no way you'd have record notice
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What is estoppel by deed?
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One who conveys realty when he has no interest in it can't later deny the conveyance if he later acquires it
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What is a mortgage?
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Conveyance of a security interest in land intended to be collateral
Legal mortgage: in writing Equitable mortgage: no written note or mortgage deed but can be inferred from existence of a debt, promise to return land if debt is paid, amount advanced is lower than property value, prior negotiations, etc. |
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What right does the debtor/mortgagor have?
What right does the creditor/mortgagee have? |
Title and right to possess until foreclosure
A lien |
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Can parties to a mortgage transfer their interests? How?
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Yes: can endorse the note and deliver it or execute a separe document
If the debtor sells the property, mortgage remains on the land so long as it was properly recorded (later buyer takes subject to properly recorded lien); if seller then sells prior to recording, whether buyer takes subject to mortgage depends on the jurisdiction |
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What is the right of equitable redemption?
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Equitable: Mortgagor has right to pay off the mortgage up until foreclosure
If mortgage has an acceleration clause, must pay full balance + interest + costs Right can't be waived (called cloggign of equity of redemption) |
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What is a holder in due course?
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If mortgage interest is transferred by endorsing the note and delivering it (as opposed to executing a new agreement)
Person takes it free of any personal defenses against original creditor (creditor can't argue lack of consideration, fraud in inducement, unconscionability, waiver, estoppel) but still faces real defenses (material alteration, duress, fraud in the factum, incapacity, illegality, infancy, insolvency) |
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Who is personally liable on the debt if the debtor sells the property encumbered by a mortgage?
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If B assumed the mortgage (must be express): buyer is primarily liable, seller secondarily liable
If B takes subject to the mortgage: seller is personally liable, buter is not BUT if recorded mortgage sticks with land, so if seller doesn't pay, land can be foreclosed |
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How is land foreclosed?
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MBE: proper judicial action; proceeds go to satisfy debt
MD: can be nonjudicial sale if mortgagor allows it and notice is given to debtor and junior creditors |
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How are proceeds from a foreclosure sale used?
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Order of payment:
Attorney's fees Foreclosure expenses Any accrued interest on the lien Pay off foreclosure Pay off junior lienholders (necessary parties) This terminates their interests Can proceed with deficiency judgment if funds are insufficient Remaining proceeds go to the mortgagor Does not affect senior interests to the mortgage: buyer at sale takes property subject to senior interests, buyer isn't personally liable but has strong incentive to pay off senior interests b/c they can foreclose |
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What are the priorities in a foreclosure?
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First in time rule: until you properly record, you have no priority
Subsequent BFP prevails over party who fails to record in a notice state Once recorded, priority is first in time, first in right Purchase money mortgage has first priority: is a mortgage givent to secure a loan that enables debtor to acquire encumbered land If there's a modification to a mortgage, junior interest is paid before the modified interest If there's a subordination agreement, it subordinates senior interests to junior creditor Ex: 1st Bank records, 2d bank doesn't, 3d bank records, 2d bank forecloses: 2d bank is paid off, then buyer takes subject to other two |
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What is statutory redemption?
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1/2 states recognize it
Gives debot statutory right to redeem for some fixed period AFTER foreclosure occurs Usually pay foreclosure price, not original debt Not recognized in MD |
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What is the rule of lateral support?
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If land is improved by buildings and adjacent to landowner's excavation causes land to cave in, excavator is ONLY liable if negligent
NO strict liability UNLESS land would have collapsed in natural state Damages in MD: cost of restoring land to previous condition |
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What are the two systems for determining allocation of water in water courses (streams, rivers)?
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Riparian doctrine: water belongs to those whose land borders the water; can make reasonable use for agricultural, manufacturing, domestic use but can't unreasonably interfere
Can apply to underground springs of fixed course Prior appropriation doctrine: right to divert it can be acquired by any individual; rights determined by priority of beneficial use (First in time) Does NOT apply in MD |
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What is the rule of percolating water?
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Surface owner can make reasonable use but can't be wasteful or malicious
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What rules apply for suface water (melting snow, rain, springs)?
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Common enemy rule: landowner can make drainage or changes on land to combat flow of surface water
Natural flow doctrine (MD): upper landowner cna't increase water to point that lower landowner is deprived; can't alter in way that injures |
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What are possessor's rights under property law?
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Right against trespass
Right against nuisance Note: if person builds in good faith on another's property, he can keep the building AND recover reasonable rental value Eminent domain: explicit and regulatory takings |
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What is the government's power to make zoning regulations? What are the remedies?
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Can use police powers to reasonably control land use?
Remedies: Variance: show undue hardship and that variance won't decrease neighboring property values |
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What is a nonconforming use?
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A once lawful, existing use now deemed nonconforming by a new zoning ordinance
Means it can't be eliminated all at once unless just comp paid otherwise is an unconst taking |
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What is an unconstitutional exaction?
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An exaction is an amenity the government seeks in return for granting permission to build; to be constitutional, must be reasonably related in nature and scope to hte impact of the proposed development
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