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160 Cards in this Set
- Front
- Back
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What are the three big interests in land?
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* Estates-Giving Possession,
* Easements-Giving right of use, and * Restrictive Covenants-Restricting someone else's use of their land |
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How you get the interests in land, keep them, and transfer them?
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* Adverse Possession,
* Conveyancing, * Recording, and * Security Interests |
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What comes with these interests in land?
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* Rights of Support and
* Water Rights |
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(I)ESTATES
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-KEY WORD: Possession - an estate always has this right
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What two types of estates will we be expected to describe and identify?
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* Present Estates and
* Future Interests |
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PRESENT FREEHOLD ESTATES - (1) Fee Simple Absolute
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* Runs Forever and is FULLY Alienable;
* Any attempt to put a direct restraint on alienation is VOID. * Ignore the retsriction. |
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PRESENT FREEHOLD ESTATES - (1) Fee Simple Absolute - conditions on the exercise of a fee simple
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Conditions on the exercise of a fee simple are okay, BUT any attempt to limit the right of transfer is void
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PRESENT FREEHOLD ESTATES - (1) Fee Simple Absolute - Rights of First Refusal
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Right of First Refusal is NOT an invalid restraint on alienation
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PRESENT FREEHOLD ESTATES - (2) Life Estate
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* Never measured by time, but only by LIFE;
* Can have a life estate by IMPLICATION; * Forfeiture restrictions on life estate are okay; * Restrictions on transfer of a life estate DO NOT violate the rule prohibiting restraints on alienation |
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Life Estate pur autre vie
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When the measuring life is someone other than the holder of the life estate; If life tenant dies before the measuring life dies, life estate passes TO THE ESTATE OF THE LIFE TENANT until the measuring life dies
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE
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Think: "MAINTAIN"; All life tenant can do is MAINTAIN the estate. This means continuing the NORMAL USE of the land in its present condition; If life tenant does MORE than or LESS than merely MAINTAIN the estate, then life tenant is guilty of WASTE = If life tenann
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (a) Voluntary Waste
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Any affirmative action beyond the right of maintenance causing harm to the premises; Life Tenant can only continue the normal use; Any change of use is voluntary waste, and life tenant is liable to the holder of the future interest
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WASTE-->WATCH OUT-->Open Mines Doctrine
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Depletion of natural resources is waste unless the normal use of the land was to deplete them (coal mine, granite quarry, etc); Sale of crops is NOT waste
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (b) Permissive Waste
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Where tenant has failed to maintain
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (b) Permissive Waste - WHAT must tenant do to avoid this?
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REPAIR-Life tenant must keep property in repair, but it is only responsible for ordinary repairs, not replacement; TAXES-Life tenant pays all taxes on property (holder of future interest must make sure these get paid--tax sale terminates future interest); INTEREST-Life tenant pays any interest on any mortgage (holder of future interest must pay the principal)
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (b) Permissive Waste - LIMITATION on life tenant's liability
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For repair, taxes, and interest, life tenant's obligation is limited to the amount of INCOME RECEIVED from the land, OR; If the life tenant is personally using the property, the reasonable rental value of the land
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (b) Permissive Waste - INSURANCE
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Life Tenant DOES NOT have to insure the property
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PRESENT FREEHOLD ESTATES - (2) Life Estate - Rights and Duties of Life Tenant - WASTE (c) Ameliorative Waste
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A special type of voluntary waste that occurs when the affirmative act alters the property substantially but increases the value of it; RULE: If CHANGED CONDITIONS have made the property RELATIVELY WORTHLESS in its current use, the life tenant can tear it down without liability to the holder of the future interest
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PRESENT FREEHOLD ESTATES - CLASS GIFTS
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Gifts to a class of unnamed persons-3 things to remember
1-Members of a class who predecease the T are eliminated and do not recover; their gift LAPSES; Once the class is established established when the will is executed, the class stays OPEN to accommodate those who later meet the definition of class member. -RULE OF CONVENIENCE |
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PRESENT FREEHOLD ESTATES - CLASS GIFTS - RULE OF CONVENIENCE
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Class closes when any one of the class is entitled to a DISTRIBUTION; Only a rule of CONSTRUCTION, not a rule of law; Only apply if grantor DOES NOT specify otherwise
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(II) FUTURE INTERESTS - CLASSIFICATION RULES
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CATEGORY 1-Those retained by grantor: Reversion; Possibility of Reverter; Right of Entry (or Power of Termination)
CATEGORY 2-Those given to Grantee: Remainder; Executory Interest |
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 1 REVERSION
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The interest kept by grantor when grantor gives LESS than the DURATIONAL ESTATE grantor had; NOT CERTAIN to revert, it depends on the circumstances set in the grant; NEVER subject to RAP; CAN be transferred freely
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 1 - POSSIBILITY OF REVERTER
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"Possibility-of-Reverter" is a term of art: Whenever grantor gives a FEE SIMPLE DETERMINABLE (FSD); FSD ends AUTOMATICALLY when the condition happens; ONLY GOES WITH A FSD; NEVER subject to RAP; EX: "O to A, so long as, while, during, until X..."
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 1-RIGHT OF ENTRY
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When grantor gives a fee simple on a condition subsequent; Grantor keeps right of entry (power of termination); With a fee simple on a condition subsequent title does not automatically go back to grantor if the condition is violated, grantor must exercise the right of entry
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Remainder (Vested Remainder)
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Nothing stands in the way of its becoming POSSESSORY on the expiration of the estate that comes before it (we know who will take and there are no conditions to taking)
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Remainder (Vested Remainder Subject to Open)
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Where the remainder interests is to a class whose members are not yet fully known, the class remains open to allow for future persons who qualify as members of the class; aka Vested Remainder Subject to Partial Divestment
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(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Remainder (Contingent Remainder)
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Something has to happen or be known before the remainder can become possessory. 3 situations: (1) CONDITION-Remainder is contingent if a CONDITION must be satisfied before the grantee can be certain of possession; (2) GRANTEE NOT IN EXISTENCE-If at the time of grant the grantee is not in existence (ex: grantee's interest contingent on grantee being born); (3) IDENTITY OF EXACT TAKER UNKNOWN-If can't identify, by name, then contingent until you can.
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28-What is common to both Vested and Contingent Remainders?
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They will become POSSESSORY, if at all, upon the NATURAL EXPIRATION of the estates coming before them
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29-Do remainders ever affect the estate coming before them?
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No.
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30-(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Executory Interest
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Any future interest in a grantee that is NOT a remainder
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31-(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Executory Interest - GENERALLY
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-Operates to cut short the estate that comes before it
-It does not come into possession at the natural expiration of the earlier estate -If a future interest in a grantee is not a remainder or it cuts short an earlier estate, it MUST be an executory interest -Holder of an executory interest CANNOT sue life tenant for WASTE |
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32-(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Executory Interest - WHAT TO WATCH OUT FOR?
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-Read the estates IN ORDER, and watch for punctuation to see if a contingency is a part of the first estate given to a grantee, or a part of the second
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33-(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Executory Interest - Other names for Vested Remainder Subject to an Executory Interest
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-Vested Remainder Subject to Total Divestment
-Vested Remainder Subject to Executory Limitation |
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34-(II) FUTURE INTERESTS Retained by Grantor - CATEGORY 2-Executory Interest - SHIFTING and SPRINGING Executory Interest
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1-SHIFTING-When an executory interest operates by taking title from one grantee and giving it to another grantee
2-SPRINGING-When an executory interest operates by taking title from the grantor and giving it to a grantee. |
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35-RULE AGAINST PERPETUITIES
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-No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
-If there is ANY CHANCE that an interest might vest outside of a life-in-being +21 years, that interest is VOID |
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36-RULE AGAINST PERPETUITIES-WATCH OUT FOR
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-Don't look for a particular person as the life-in-being
-Ask:Could everyone alive at the time of the grant die, and 21 years pass, before the interest might vest? If so, it's VOID. |
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37-RULE AGAINST PERPETUITIES-When is validity of a grant determined?
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-At the time of CREATION.
-Doesn't matter if the interest actually does vest within the time period of the RAP |
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38-RULE AGAINST PERPETUITIES-Perpetuity Saving Clause
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-Saves a grant from being voided by RAP by making sure vesting must occur within the time period of the Rule.
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39-RULE AGAINST PERPETUITIES-Options and Rights of First Refusal
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DO violate the RAP, if they could be exercised outside the time period
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40-RULE AGAINST PERPETUITIES-Charity-to-Charity Exception
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RAP never violated if the gift over is from one charity to another charity
-BOTH GRANTEES MUST BE CHARITIES |
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41-RULE AGAINST PERPETUITIES-RAP and Class Gifts
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-Look for 2 situations
1-Age Contingency in an Open Class-->watch for facts where the class is open and the gift over is contingent on a class member reaching a certain age 2-Unborn Spouse-->Watch for a gift over following a widow/er's life estate, where the gift over cannot vest until widow/er dies -For the unborn spouse situation to arise, the grant must be written so the vesting cannot occur until widow/er dies |
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42-RULE AGAINST PERPETUITIES-Wills vs Deeds
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-If transfer is by WILL look at situation as of the time of testator's death
-If by DEED look at the situation at the time of the deed |
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43-(III) CONCURRENT OWNERSHIP
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1-Joint Tenancies
2-Tenancies in Common |
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44-CONCURRENT OWNERSHIP (1) JOINT TENANCIES - Characteristics
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1-Right of Survivorship
2-Right to Partition -Any JT can ask that property be partitioned-lines drawn and party no longer a JT -Can come by agreement of parties, or court can draw the lines-if lines can't be drawn (like in a single family residence, COURT can SELL and divide proceeds) |
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45-CREATION of a Joint Tenancy (T-TIP)
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-Requires the FOUR UNITIES
1-TIME-->all interests must have vested at the same time 2-TITLE-->the grant to all JTs must be by the same instrument 3-INTEREST-->all JTs must take the same kind and same amount interest 4-POSSESSION-->all must have identical rights of possession |
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46-LANGUAGE needed to create a joint tenancy
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Must clearly make intention known, because if intent of grantor is unclear, court construes the interest to be a Tenancy in Common
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47-What is the necessary language ON THE EXAM to create a Joint Tenancy?
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-"As joint tenants with right of survivorship"
or -"In joint tenancy with right of survivorship" |
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48-Destruction of Joint Tenancies
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1-PARTITION-->a voluntary destruction
2-SEVERANCE-->An involuntary destruction. Occurs whenever one of the four unities is disturbed |
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49-On the exam, what are the four ways to sever a joint tenancy?
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1-Conveyance by one of the JTs. One JT's transfer of their interest creates a severance that destroys the SELLER'S JT, turning it into a TinC in the BUYER, with the other JTs continuing to hold their interests in a JT
2-Mortgage in a Title Theory state (minority). Lien Theory (majority) = NO severance 3-Contract of Sale. Doctrine of equitable conversion means severance occurs when a K of sale is signed 4-Creditor's Sale of the interest in the JT. Creditor's judgment lien is NOT enough. MUST be actual judicial sale. |
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50-CONCURRENT OWNERSHIP (2) TENANCIES IN COMMON (TinC) - Characteristics
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1-Right to Partition (any one tenant in common can enforce it)
2-NO right of survivorship -ONLY one unity is required:Possession-->all tenants in common MUST have equal rights of possession -TinC is DEFAULT tenancy -If a JT is not properly created, it's a TinC |
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51-INCIDENTS OF CO-OWNERSHIP-->GENERAL RULE FOR ACCOUNTABILITY
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One co-tenant DOES NOT have to account to another co-tenant for a share of the profits
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52-INCIDENTS OF CO-OWNERSHIP-->EXCEPTIONS TO ACCOUNTABILITY(KNOW THESE FOR MBE)
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1-OUSTER-->Accounting is required if one co-tenant is either keeping a co-tenant off the property, OR claiming a right of exclusive possession
2-AGREEMENT to share 3-LEASE of the property by co-tenant to a 3rd party 4-DEPLETION of natural resources |
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53-INCIDENTS OF CO-OWNERSHIP
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1-POSSESSION (each co-tenant has right to possess all property consistent with other co-tenants' rights to also possess it all)
2-ACCOUNTABILITY (one co-tenant may have to account to another for profits received) 3-CONTRIBUTION (right of one co-tenant to pay share of another co-tenant's expenditure) |
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54-NON-FREEHOLD (LANDLORD-TENANT) ESTATES
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1-Tenancy for Years
2-Periodic Tenancy 3-Tenancy At Will 4-Tenancy At Sufferance |
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55-NON-FREEHOLD ESTATES(1) TENANCY FOR YEARS
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-Does not have to be for years-->only SPECIFIED TIME
-Any estate measured by a FIXED period of time, no matter how short, is a tenancy for years |
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56-NON-FREEHOLD ESTATES (1) TENANCY FOR YEARS-->Statute of Frauds
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-Any tenancy for years OVER ONE YEAR must be in writing
-One year (oral) is okay -One year (oral) and ONE day is NOT okay |
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57-NON-FREEHOLD ESTATES (2) PERIODIC TENANCY
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-REPEATING. Ongoing, continuing, repetitive estate, until one party gives valid notice
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58-NON-FREEHOLD ESTATES (2) PERIODIC TENANCY-CREATION
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3 Ways
1-Express Agreement 2-Implication 3-Operation of Law |
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59-NON-FREEHOLD ESTATES (2) PERIODIC TENANCY by IMPLICATION
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-Where lease is silent as to its duration
-If lease does not specify how long it is to last, then it is presumed to be a PERIODIC TENANCY measured by the PERIODIC payment |
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60-NON-FREEHOLD ESTATES (2) PERIODIC TENANCY by OPERATION OF LAW
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2 situations
1-ORAL LEASE-->violates the Statute of Frauds. -Acceptance of rent by landlord creates a periodic tenancy by operation of law, even though lease itself violated Statute of Frauds -Period determined by period covered in rent check L-lord accepted 2-HOLD OVER-->tenant stays after expiration of lease, then L-lord accepts rent. -If holdover sends L-lord a check for another period's rent and it's accepted, NEW periodic tenancy by operation of law |
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61-NON-FREEHOLD ESTATES (2) PERIODIC TENANCY - TERMINATION
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-PROPER NOTICE REQUIRED. 2 REQUIREMENTS FOR PROPER NOTICE
1-TIME-->equal to the period (but if year-to-year, 6 months) 2-EFFECTIVE DAY-->right effective day of termination. Make sure notice is given enough time |
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62-NON-FREEHOLD ESTATES (3) TENANCY AT WILL
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-Fragile Tenancy
-Either party can terminate at any time, without NOTICE |
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63-NON-FREEHOLD ESTATES (3) TENANCY AT WILL-->TERMINATION
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1-DEATH of either party
2-WASTE by the tenant 3-ASSIGNMENT by the tenant 4-TRANSFER OF TITLE by landlord 5-LEASE by landlord to someone else |
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64-NON-FREEHOLD ESTATES (4) TENANCY AT SUFFERANCE (AKA HOLDOVER TENANT)
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-Landlord can either:
1-Hold tenant as a wrongdoing trespasser and sue to throw tenant off property and recover damages for the holdover; OR 2-Impose NEW periodic tenancy on tenant: -RESIDENTIAL-month-to-month -COMMERCIAL-see card 65 |
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65-NON-FREEHOLD ESTATES (4) TENANCY AT SUFFERANCE (AKA HOLDOVER TENANT)-->New periodic tenancy for COMMERCIAL TENANCY
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-If expired tenancy was for a YEAR OR MORE, new tenancy is year-to-year
-If expired tenancy was for LESS THAN A YEAR, new tenancy is rent period of old tenancy -Landlord cannot impose new tenancy on holdover tenant if it is not reasonable -Raised rent situation -If L-lord tells tenant of higher rent BEFORE expiration of lease, and T holds over after expiration, L can impose the new periodic tenancy on holdover at the higher rent |
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66-DUTIES OF TENANT
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If lease is SILENT as to T's duties, T must:
1-PAY RENT 2-NOT commit WASTE. If leases says T must REPAIR AND MAINTAIN then T is liable for ALL damage to the property, including even ordinary wear and tear unless that is specifically EXCLUDED form the promise to repair -T can TERMINATE lease if premises destroyed and it's not T's fault |
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67-LANDLORD'S REMEDIES
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-If T FAILS to pay RENT, L can sue for damages and to throw T off property
-If T unjustifiably abandons the leasehold, L can: 1-treat abandonment as an offer of SURRENDER and accept by retaking the premises 2-RE-RENT the premises on T's account and hold T liable for any deficiency |
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68-DUTIES OF LANDLORD
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1-Give T ACTUAL POSSESSION of the premises when the lease begins (L is in breach if cannot give possession)
2-Deliver residential premises in habitable condition (implied warranty of habitability). If L breaches, T can: (a) MOVE OUT and end the lease, or (b) SUE for DAMAGES 3-Implied Covenant of Quiet Enjoyment |
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69-Ways landlord can breach implied warranty of Quiet Enjoyment
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1-TOTAL EVICTION OF T-which terminates lease, ending T's obligations
2-PARTIAL EVICTION OF T-does NOT terminate lease, T can stay and PAY NO RENT. If partial eviction is by someone (not L)with better title, T's rent is apportioned to reflect amount taken away 3-CONSTRUCTIVE EVICTION-Where L fails to provide a service L is supposed to provide, thus making premises uninhabitable |
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70-Ways tenant can be EXCUSED from CONSTRUCTIVE EVICTION
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1-L has to excuse
2-Must be a SUBSTANTIAL interference with the covenant of quiet enjoyment 3-Must be an ABANDONMENT of the premises within a REASONABLE TIME after the breach |
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71-ASSIGNMENT
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When T transfers everything, holding nothing back
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72-SUBLEASE
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-When T transfers a PORTION of the lease period, holding SOME time back
-Sublessee T is NOT LIABLE to L because no PRIVITY OF K or ESTATE |
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73-ASSIGNMENTS. (1) L sues T. Are successive Ts on a lease liable to L?
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-A lease is both a CONVEYANCE and a CONTRACT-separate and independent grounds of liability
-Liability comes from PRIVITY of ESTATE (exists only between present L and present T) -Covenants run with the land if they TOUCH and CONCERN the land |
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74-ASSIGNMENTS. What is the test for if covenants TOUCH and CONCERN the land?
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If performance of the covenant makes the land more VALUABLE ro USEFUL, then it meets the T&C test and runs with the land
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75-ASSIGNMENTS. (2) T sues L. If L sells to a successor L, can T sue the original L and any successor L on the lease?
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-Original L continues to be liable to T because of PRIVITY of K
-Successor L is also liable, provided lease covenant runs with the land AND there is either PRIVITY of K or ESTATE |
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76-NON-ASSIGNMENT CLAUSES OR NON-SUBLEASE CLAUSES
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1-Valid and Enforceable
2-Permission given once means the non-assignment or non-sublease is WAIVED for ALL times, unless L states otherwise upon giving permission 3-Acceptance of rent by L gives permission |
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77-CONDEMNATION (EMINENT DOMAIN)-PARTIAL TAKING
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-Does NOT release T from obligation to pay FULL rent
-BUT, T gets an amount equal to the rent that will have to be paid over the remainder of the lease for the property taken |
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78-CONDEMNATION (EMINENT DOMAIN)- FULL TAKING
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-Extinguishes the lease and T is EXCUSED from paying rent
-T shares in the condemnation award only to the extent that the FAIR RENTAL VALUE of the lease exceeds the rent due under the lease |
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79-LANDLORD'S TORT LIABILITY-GENERAL RULE
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NO DUTY of L to T or T's invitees for injuries on the premises during the life of the lease
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80-LANDLORD'S TORT LIABILITY-EXCEPTIONS
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1-LATENT DEFECTS-L has duty to disclose latent defects which L knows or has reason to know about (person in T's position would NOT discover)
2-SHORT-TERM LEASE OF FURNISHED DWELLING-L liable for defects even if L doesn't know nor has reason to know of them (3 month lease or less) 3-COMMON AREAS UNDER L's CONTROL-If injury is in one of these areas, then L liable if L failed to use reasonable care 4-NEGLIGENT REPAIRS-L's repairs, even if L used all dues care in making the repair(L created deceptive appearance of a repair) 5-PUBLIC USE EXCEPTION.3 REQ'S (a)L must know/should know of major defects, and(b)that T will not fix the defect, and(c)public will be using the premises |
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81-TENANT'S TORT LIABILITY
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T is ALWAYS liable to 3rd party invitees for negligent failure to correct dangerous conditions, regardless of whether L may be contractually liable or not
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82-FIXTURES-POSSIBLE FACT SITUATIONS
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1-OWNER installs an appliance on property, then contracts to sell property and does not mention appliance in the K. Can owner keep?
2-TENANT installs same kind of chattel property. Can T remove and take chattel at the end of the lease? |
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83-FIXTURES-RULES
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-If attached item became a fixture, chattel CANNOT be removed by either S or T
-Key is INTENT |
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84-FIXTURES. If no agreement regarding fixtures, look at 4 FACTS
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1-Degree of Attachment (the more done to attach it to the property, more likely it will stay)
2-General Custom 3-Degree of Harm to Remove (T's are favored 4-Trade Fixtures (chattels used in a trade or business are NOT fixtures) |
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85-EASEMENTS
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An easement is a non-possessory interest in land involving a right of USE
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86-EASEMENTS-TYPES
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1-Appurtenant-when the easement directly benefits the use and enjoyment of a specific piece of land(burdened property=servient/benefited property=dominant)
2-In Gross-where there is no dominant estate (ex: utlitity easements) |
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87-EASEMENTS-CREATION
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1-EXPRESS. Arises with an express grant of an easement to someone else, or the reservation of an easement when land is sold to another.
2-BY IMPLICATION.(a)Previous use by a common owner where the use is(i)continuous(daily), (ii)apparent, and(iii)reasonably necessary. (b)when property is landlocked 3-BY PRESCRIPTION. |
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88-EASEMENT BY PRESCRIPTION REQUIREMENTS
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1-Use must be ADVERSE
2-CONTINUOUS and UNINTERRUPTED (seasonal use is okay). 20 years default time. 3-VISIBLE and NOTORIOUS, or with the owner's KNOWLEDGE 4-WITHOUT owner's PERMISSION (oral permission included) |
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89-Must easements comply with the Statute of Frauds?
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-Yes
-Easements MUST be in writing, signed by the holder of the servient estate, and executed like a deed |
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90-What are the 4 favorite testing issues for EASEMENTS?
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1-TRANSFER
2-USE 3-REPAIR 4-TERMINATION |
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91-TRANSFER OF EASEMENTS
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-Appurtenant Easements--> AUTOMATICALLY TRANSFER with the dominant estate. CANNOT be transferred separately from dominant estate
-In Gross-->COMMERCIAL can always be transferred. PERSONAL cannot be transferred -Easements ALWAYS binding on subsequent holders of servient estates, even if the easement is not in their deeds, providing the subsequent holder had NOTICE of the easement |
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92-USE OF EASEMENTS
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-Terms of the easement control
-If silent, 2 presumptions: 1-Easement is PERPETUAL 2-Use is that of REASONABLE DEVELOPMENT of the dominant estate -Can benefit only the DOMINANT estate |
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93-REPAIR OF EASEMENTS
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-Holder must keep in repair and can always go on servient estate to repair
-Holder must make reasonable restoration of servient estate after repairs -Holder of servient estate has NO obligation of repair |
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94-TERMINATION OF EASEMENTS
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1-UNITY of OWNERSHIP or MERGER. Whenever both dominant and servient estates come together in the same owner=termination. DEAD!
2-VALID RELEASE 3-ABANDONMENT. Physical act on the property showing intent to abandon. NON-USE is NOT ABANDONMENT 4-BY ESTOPPEL 5-BY PRESCRIPTION 6-END OF NECESSITY |
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95-TERMINATION OF EASEMENT BY ESTOPPEL
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1-Representation of relinquishment by holder of dominant estate, anD
2-Change of position in reliance by the holder of the servient estate |
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96-LICENSES
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-A limited privilege of use, and NOT a property interest
-Only a contract right -Revocable at the will of the licensor -May have to pay K damages for wrongful revocation, but NO PROPERTY RIGHTS |
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97-LICENSES-SITUATIONS FOR EXAM
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1-Tickets.
-No property rights, only K rights -Can always be revoked, but K damages may be secured 2-Irrevocable License (license plus money spent on furthering license) -Any time an easement attempted but fails due to SofF, there is a license -If money spent on property in furtherance of oral license, license becomes irrevocable and is just as good as an easement, enforced by estoppel |
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98-PROFITS
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-Gives the right to go onto land and take a NATURAL RESOURCE away
-Along with a profit goes an implied easement to go on the land to get the resource and take it away -Use EASEMENT RULES if they ask anything about profits |
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99-RESTRICTIVE COVENANTS CATEGORIES
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1-Covenants at Law
2-Equitable Servitudes -Only thing that distinguishes them is the WAY they are ENFORCED |
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100-COVENANT AT LAW
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-When P wants money damages
-4 REQUIREMENTS 1-INTENT that it run with the land 2-NOTICE to the person against whom enforcement is sought 3-Covenant must TOUCH AND CONCERN the land (must make more valuable or useful) 4-PRIVITY-a conveyance if property from one party to another (HORIZONTAL and VERTICAL) |
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101-Horizontal Privity
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-Refers to the ORIGINAL parties to the covenant
-MUST have a conveyance of the property between the original parties |
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102-Vertical Privity
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-Refers to those who subsequently OBTAIN the property subject to the covenant (successor in interest) and the original party from who they got the property
-Successor in Interest must take the FULL estate of the one up the line |
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103-What kind of privity is needed?
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Step 1-Find the successor in interest in the problem
Step 2-If a successor in interest is the D, then someone is trying to have the BURDEN of the covenant run to that successor -If SinI is the P, then that person is trying to have the BENEFIT run to them |
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104-BURDEN ANALYSIS
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For the burden to run AGAINST a SinI, must be both HORIZONTAL privity and VERTICAL privity
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105-BENEFIT ANALYSIS
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For the benefit to run in FAVOR of SinI, you need only VERTICAL privity
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106-BENEFIT/BURDEN REVIEW
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-If a SinI is a D, then for P to get damages the burden must run and you need BOTH HORIZONTAL and VERTICAL privity
-If the D is NOT a SinI, then for the benefit to run to a SinI P, and to let O get damages, you need ONLY VERTICAL privity |
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107-EQUITABLE SERVITUDES (P wants an injunction)
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REQUIREMENTS
1-INTENT that the restriction be enforceable by successors-in-interest 2-NOTICE to the subsequent purchaser, and 3-The restriction must TOUCH and CONCERN the land -NO PRIVITY IS REQUIRED |
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108-EQUITABLE SERVITUDES IN SUBDIVISIONS-Mutual Rights of Enforcement (aka Reciprocal Negative Servitudes)
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How a covenant can be put in deeds in a subdivision and allow each lot owner to enforce
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109-EQUITABLE SERVITUDES IN SUBDIVISIONS-REQUIREMENTS
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1-INTENT to create a servitude on all the land in the subdivision (found in the common building plan)
2-NOTICE. 3 Ways to get. (a)Actual (b)Record-restriction in the direct chain of title (c)Inquiry-you are held to know anything that a reasonable inquiry might have revealed |
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110-EQUITABLE DEFENSES TO ENFORCEMENT (only for equitable servitudes)
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1-Unclean Hands (P did same thing as D)
2-Acquiescence (P let neighbor on other side do the same thing) 3-Laches (P sat by while D built) 4-Estoppel (P said earlier she did not mind if D put up office building) |
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111-TERMINATION OF COVENANTS
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-Can always be done by RELEASE or by UNITY OF OWNERSHIP
-On exam, look for termination by CHANGED CONDITIONS -ALL OR NOTHING-you cannot void a restriction because of changed conditions in an area unless ALL LOTS in the subdivision are affected |
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112-ADVERSE POSSESSION-ELEMENTS
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-H.E.L.U.V.A.
-Hostile -Exclusive -Lasting (common law=20 years) -Uninterrupted (continuous) -Visible (open and notorious) -Actual |
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113-Adverse Possession-What is NOT required?
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1-Owner does NOT have to know trespasser is on land
2-No need for a CLAIM OF RIGHT by adverse possessor |
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114-DOCTRINE OF "CONSTRUCTIVE" ADVERSE POSSESSION
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-An exception to the rule that there must be actual adverse possession
-Amount actually possessed must bear a REASONABLE RELATION to the whole -Property must be UNITARY (i.e. a seamless whole) |
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115-Adverse Possession-LEASING
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-Leasing land to someone else qualifies as possessing it for adverse possession purposes
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116-Adverse Possession-Against Concurrent Owners
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-Can only occu when the possessor EXCLUDES the other co-tenant(s) from possession and the statute runs
Exclusion STARTS the clock running, not the mere absence of the other co-tenant |
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117-Adverse Possession-FUTURE INTEREST SITUATIONS
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1-Life Estate Plus Future Interest-Clock does not start to run against the holder of a future interest until life tenant DIES
2-Fee Simple Determinable-Happening of the condition starts the clock running 3-Fee Simple on a Condition Subsequent-Clock doesn't start until grantor exercises Right of Entry |
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118-Adverse Possession-TACKING
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-Can tack periods od AP, but periods must pass DIRECTLY from one APer to another. NO GAPS
-Can also tack period of true ownership (AP does not have to be against the present owner for the entire statutory period) |
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119-CONVEYANCING
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1-K of Sale
2-Deed 3-Covenants for Title |
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120-CONVEYANCING-Contract of Sale-Requirements.
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1-Statute of Frauds (description, names of parties, price)
2-Legal Effect of the K of Sale between time of signing of K and closing |
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121-CONVEYANCING-Exception to SofF
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Doctrine of Part Performance
1-Oral K must be certain and clear (no ambiguities), and 2-The acts of part performance must clearly prove up a contract -Look for claimant in possession AND paying full purchase price or erecting improvements |
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122-CONVEYANCING-Contract of Sale-Legal Effect of the K of Sale between time of signing of K and closing
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1-Risk of Loss-If property is damaged or destroyed before closing, BUYER loses. Once K is signed, it is BUYER'S land and risk because equitable conversion-even if seller remains in possession
2-Death of party before closing. S dies before closing=B has S's estate. B dies before closing=S has B's estate 3-Marketable Title.Doesn't have to be perfect. 4-Time of Performance. Time is generally of the essence |
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123-CONVEYANCING-What must S give for Marketable Title?
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1-Proof of Title
2-Title free of encumbrances(no easements, restrictive covenants, mortgages, options, etc. not mentioned in the K) -Valid options to purchase are encumbrances. Zoning is not unless violation. Violation of housing codes is NOT. Mortgage is NOT if mortgage is to be satisfied out of proceeds 3-Valid legal title on the day of closing |
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124-CONVEYANCING-Remedies of B if S's title is unmarketable
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-B must notify S and give S reasonable time to cure the defect, even if it postpones closing
-REMEDIES 1-Rescission 2-Damages 3-Specific Performance |
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125-CONVEYANCING-K of Sale-Remedies for Breach of Sales K
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1-Damages. Difference between K price and value of land on day of breach.
-Liquidated Damages. 2-Specific Performance. Always available for land sale K to BOTH B and S. |
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126-CONVEYANCING-K of Sale-Defects on the Property
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-Generally, BUYER CANNOT RECOVER
-EXCEPTIONS 1-S must disclose serious defects S knows of. 2-Implied warranty of FITNESS or MERCHANTABILITY for new homes (VERY NARROW) |
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127-CONVEYANCING-Deed-Generally
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-Once deed is accepted, K merges into deed and is destroyed
-All K provisions (ex: implied warranty of merchantable title) are lost UNLESS included in deed |
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128-CONVEYANCING-Deed- Requirements for Passage of Legal Title from B to S
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1-EXECUTION. Deed is subject to SofF. S must sign deed. Description of land need not be very specific. Identification is okay. Minor discrepancy in description is cool if can still identify. METES AND BOUNDS ALWAYS CONTROLS
2-DELIVERY. INTENT to pass title is the test. RECORDING raises presumption of delivery. Once delivery occurs, title passes. Parol evidence okay to prove intent. |
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129-CONVEYANCING-Deed-Conditional Delivery
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-Grantor hands over deed, but tries to condition delivery on some event. 3 situations
1-Where Condition is in the Deed. If deed says it will not become effective until death of grantor-valid future interest 2-Oral Condition. If at time of delivery, disregard 3-Making Delivery Conditional on Grantee Paying the Purchase Price. Valid provided delivery to 3rd party in escrow with valid delivery instructions. -No consideration needed for deed |
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130-CONVEYANCING-Covenants for Title-Generally
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-If grantor makes no promises regarding title, grantee gets QUIT CLAIM DEED (no promises)
-If grantor makes promises regarding title, they are COVENANTS FOR TITLE, and deeds with the 6 traditional covenants are called GENERAL WARRANTY DEEDS |
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131-CONVEYANCING-Covenants for Title-CATEGORIES
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1-Present Covenants
-Can sue immediately on them -Personal to grantee and DO NOT run with the land |
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132-CONVEYANCING-Covenants for Title-PRESENT COVENANTS
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1&2-Covenant of Seisin. Covenant of the right to CONVEY. Represent promise of S that S has title and possession and can validly convey both
3-Covenant Against Encumbrances. Grantor promises to easements, restrictive covenants, liens, etc |
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133-CONVEYANCING-Covenants for Title-FUTURE COVENANTS
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-Breached in the future
-RUNS WITH THE LAND 1&2-Covenant of Quiet Enjoyment and Covenant of Warranty. Represent the promise of S that S will protect B against anyone who later shows up and claims title 3-Covenant of Further Assurance. "Mop Up" covenant. If S forgot to do something to pass valid title, S promises to do whatever's necessary (like sign the deed) |
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134-CONVEYANCING-Covenants for Title-DAMAGES for BREACH of WARRANTY
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Purchase price received by warrantor plus incidentals
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135-CONVEYANCING-Covenants for Title-Estoppel by Deed
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-If A deeds property to B that A does not own, and A later does acquire title, then B will get title because grantor gave an implied covenant that title would be transferred to grantee
-BUT! If grantor transfers to a BFP after getting title, then the original grantee loses and cannot rely on estoppel by deed |
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136-CONVEYANCING-Covenants for Title-Deed to a Dead Person
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-A deed to a dead person is invalid, although enforcement of the K of sale can still be had by either the S or the B's estate, and a new deed is made to the B's estate
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137-RECORDING OF INTERESTS
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-Common Law=First in Time
-Today=statutory -May protect subsequent mortgages, but NOT judgment creditors -Recording a deed not necessary to make it valid-->done for NOTICE purposes |
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138-RECORDING ACTS
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1-NOTICE. Protect subsequent grantees who are BFPs
2-RACE-NOTICE. Protects BFPs who take without notice AND first to record 3-PURE RACE. Notice is irrelevant |
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139-RECORDING ACTS-HOW TO SPOT
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1-If quoted act says "without notice" or "in good faith" then NOTICE/RACE-NOTICE
2-If words "first recorded" appear along with "w/o notice" or "in good-faith" then it is RACE-NOTICE 3-If act DOES NOT use words "without notice" or "in good-faith" then it is PURE RACE |
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140-BONA FIDE PURCHASER
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-aka BFP
-For Value 1-IRRELEVANT that amount paid does not meet or come close to FMV. $1 is not enough 2-HEIRS. Heirs, donees or devisees cannot be BFPs, and thus can NEVER defeat the claim of someone who has a prior conveyance from O. Nothing out of pocket |
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141-Three kinds of notice that can defeat a BFP
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1-ACTUAL (subject to Shelter Rule)
2-RECORD (constructive notice that arises from the record) Must be recorded in the Chain of Title 3-INQUIRY. Two situations: (a)where a reading of the deeds on record discloses unrecorded transaction-now on notice.(b)where subsequent land purchaser fails to examine the land when it would have shown occupier, etc |
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142-Shelter Rule Exception to Actual Notice
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-Anyone can shelter under the rights of a BFP
-Rule protects ANYONE who takes from a BFP whether they are purchasers for value or not, and no matter what they know |
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143-Title Searching
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1-Construct chain of title by going to GRANTEE index and look up S and find S's grantor, and keep going until statutory time period is met
2-See if chain is strong enough by "ADVERSING" (go to grantor index and "adverse" each link in the chain) -Try to see if grantor placed encumbrances or conveyed property to anyone else |
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144-"Wild Deeds"
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-Deeds recorded outside the chain of title
-These don't give notice |
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145-SECURITY INTERESTS
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1-MORTGAGES
2-DEEDS OF TRUST 3-INSTALLMENT LAND SALE Ks |
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146-SECURITY INTERESTS-Generally
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-Given by a debtor (mortgagor) to a creditor (mortgagee)
-2 special situations treated as mortgages 1-ABSOLUTE DEED with separate promise of reconveyance situation (EQUITABLE MORTGAGE) 2-SALE/LEASE-BACK with option to purchase |
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147-DEED OF TRUST
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-Given by debtor to 3rd party trustee who holds until the loan is paid off
-If loan isn't paid, then trustee may either: -Get the court to order a sale, or -Trustee may sell property on trustee's own, at public auction |
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148-INSTALLMENT LAND SALE K
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-Debtor signs a K promising to make payment and seller keeps title until loan is paid off
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149-Consequences of Having a MORTGAGE or DEED OF TRUST
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1-Equity of Redemption
2-Foreclosure must be by PUBLIC AUCTION SALE, regardless of how the sale occurs, whether by court order or otherwise 3-Multiple Mortgages=First in Time, First in Right 4-Foreclosures wipe out all JUNIOR interests but DO NOT wipe out SENIOR interests 5-Use proceeds of foreclosure sale in a certain order 6-If foreclosure and not enough money to pay off mortgagee, mortgagee can SUE debtor for balance |
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150-Equity of Redemption
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-At any time up to the foreclosure sale, debtor can REDEEM the property
-Normally all debtor need pay is the amount in arrears -BUT if mortgage has an ACCELERATION clause, debtor must pay off entire balance -Cannot be waived in mortgage or deed of trust, but maybe later for consideration |
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151-What are the priorities if multiple mortgages?
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-1st in time, 1st in right
-Recording Acts: apply just as if dealing with a deed. -Later mortgages may take priority over earlier mortgages IF subsequent mortgagee had NO notice of the earlier mortgage OR -If the subsequent mortgagee had no notice of the earlier mortgage AND recorded the subsequent mortgage first -PMM's have priority over other mortgages executed at about the same time |
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152-Can mortgage priorities be changed?
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-Yes, by contract
-Also, if owner does anything to INCREASE a senior mortgage (gets more money, increases interest rate), then that mortgage loses its priority over junior ones but ONLY to the extent of the change |
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153-Do junior mortgages run with the land?
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No
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154-Protections to Holders of Junior Interests
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-They have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out
-Makes them NECESSARY PARTIES to any foreclosure -If not made a party to the foreclosure, then their interests not wiped out |
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155-Order of how foreclosure proceeds are to be used
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1-Pay the COSTS of the foreclosure, including expenses and attorney's fees
2-Pay the MORTGAGE that was foreclosed, including accrued interest 3-Pay off JUNIOR INTERESTS, in order 4-Anything left goes to MORTGAGOR |
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156-CONSEQUENCES OF HAVING AN INSTALLMENT LAND K
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-A FORFEITURE clause provides that if debtor misses a payment, seller can cancel the K, keep all the money paid to date, and get the property back
-These clauses WILL be enforced |
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157-TRANSFERS OF SECURITY INTERESTS
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-Each party can freely transfer their interest
1-Mortgagor can transfer TITLE to property and the mortgage just tags along. Transferee takes subject to the mortgage. Mortgagor continues to be personally liable -Unless grantee specifically ASSUMES mortgage, grantee is not personally liable 2-Mortgagee can freely transfer the NOTE -Due on sale clauses are enforceable |
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158-What happens to the note after mortgagor's transfer to one who "assumes" the mortgage?
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-Mortgagor continues to be personally liable on the note as a SURETY
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159-RIGHTS OF SUPPORT
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1-LATERAL SUPPORT. Support from the sides. Landowner has the right to land supported by the adjoining mandowners, and STRICT LIABILITY results if land is not supported
2-SUBJACENT SUPPORT. STRICT LIABILITY if surface is not supported by the bottom. Holder of mineral rights strictly liable for failure to support surface of land |
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160-WATER RIGHTS
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1-Riparian Rights. Domestic purposes (east coast)
2-Prior Appropriation. First in time takes (western states) |
