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188 Cards in this Set
- Front
- Back
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What are the four categories of freehold estates?
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1) Fee simple absolute 2) The fee tail 3) The defeasible fee 4) The life estate
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Does a living person have heirs?
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No, only prospective heirs.
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Fee Simple Absolute
1)What words are needed to create? 2) What are its distinguishing future interests? 3) Accompanying future interests? |
1) "To A and his heirs" - but you don't need "to his heirs" so "To A" will suffice
2) ABSOLUTE OWNERSHIP of potentially infinite duration. FREELY DIVISABLE, DESCENDABLE, AND ALIENABLE 3) No - "To A and his heirs" - A's descendants have nothing right now (prospective heirs) |
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1) How do you create a fee tail?
2) Today, the attempted creation of a fee tail creates what? |
1)To A and the HEIRS OF HIS BODY.
2) A fee simple absolute |
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1) What are the distinguishing characteristics of a Fee Simple Determinable?
2) What is a fee simple determinable called in NY? 3)What must the grantor do to create a fee simple determinable? |
1) It is divisable, descendable, and alienable, but always subject to the condition
2) A "fee on limitation" 3) Use clear DURATIONAL language |
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What are examples of durational language for creating a fee simple determinable?
What are examples of "statements of motive or purpose," as opposed to statements of duration? |
1) To A for so long as 2) To A during 3) To A until 4) To A unless
"for the purpose of," "to be used for" - these are NOT FSDs |
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What happens if a fee simple determinable condition is violated?
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Automatic forfeiture
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What is the accompanying future interest in a fee simple determinable?
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Possibility of reverter in the grantor. Note: FSDPOR (Frank Sinatra Didn’t Prefer Orville Redenbacher)
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1) What is a fee simple subject to a condition subsequent?
2) Distinguish FSSCS from fee simple determinable |
1) An estate in which the grantor RESERVES THE RIGHT TO TERMINATE THE ESTATE upon the happening of a stated event
2) Here the estate is NOT AUTOMATICALLY TERMINATED, but it can be cut short at the grantor's OPTION if the stated condition occurs |
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What must the grantor do to create a fee simple subject to a condition subsequent?
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1) Use durational language, AND 2) Carve out the right to reenter
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1) What is the term for "fee simple subject to condition subsequent" in NY?
2) Is there an accompanying future interest? |
1) a "fee on condition"
2) There is a future interest in the Grantor called a "right of entry" ("the "right of reaquisition" in NY)- it is the power of termination - unlike possibility of reverter, it must be expressly reserved. |
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1) what is a fee simple subject to an executory limitation?
2)What happens when the condition is violated ? 3) Accompanying future interest? |
1) Fee simple estate terminates upon the happening of a stated event, but it passes to a 3rd party instead of grantor
2)Automatic forfeiture in favor of the third party. 3) The third party has a shifting executory interest |
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1)What must be present for a court to find a defeasible fee?
2) What is insufficient to create a defeasible fee? 3) What type of restriction is disfavored by a court? |
1) Clear durational language.
2) Words of mere desire, hope, or intention are insufficient. 3) Restrictions on the free use of land. This is why clear durational language is required |
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To A so long as she never attempts to sell. Result?
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A has a fee simple absolute (absolute restraint on alienation = void the condition).
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What is an absolute restraint on alienation?
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An absolute ban on the power to sell or transfer that is not linked to any reasonable time limited purpose.
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Can a life estate ever be measured in years?
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No. A life estate must be measured in EXPLICIT LIFETIME TERMS and NEVER IN TERMS OF YEARS
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What is a life estate pur autre vie?
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A life estate measured by a life other than the grantee’s.
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What is a life tenant entitled to?
What is a life tenant prohibited from doing? |
All ordinary uses and profits from the land.
Life tenant must not COMMIT WASTE |
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What are the three species of waste?
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1) Voluntary or affirmative waste
2) Permissive wast, or neglect 3) Ameliorative waste |
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What is affirmative waste?
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Overt conduct that causes a decrease in value.
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What is the general rule for waste of natural resources?
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A life tenant must not consume or exploit natural resources on the property UNLESS (PURGE): 1) Prior use (prior to the grant the land was used for exploitation) 2) Reasonable repairs and maintenance 3) Grant (expressly granted right to exploit) 4) Exploitation - Land is suitable ONLY to exploit
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What is permissive waste, or neglect?
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Occurs when the land is allowed to fall into disrepair
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When is a life tenant required to pay taxes?
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1) To the extent of income or profits on the land, OR 2) If not income or profit, to the extent of the fair rental value
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What is the life tenant's obligation in regards to permissive waste and repair?
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LT must simply MAINTAIN the premises in reasonably good repair (need do no more or less)
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1)What is "ameliorative waste"?
2) When may a life tenant engage in ameliorative waste? 3) What is the rule in NY as to ameliorative waste? |
1) Generally, a LT must not engage in future acts that will enhance the property's value - unless (2)
2)Only when all future interest holders are known and they consent. 3) LT may make reasonable improvements unless remaindermen object (the sort of change a prudent owner would make) |
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What is the accompanying future interest in a life estate?
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1) If held by grantor = reversion 2) If held by third party = remainder
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What are the six categories of future interests?
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1) Possibility of reverter 2) Right of entry 3) Reversion 4) Vested remainder 5) Contingent remainder 6) Executory interest
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What type of estate accompanies a possibility of reverter?
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Fee simple determinable
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What type of estate accompanies a right of entry or right of termination?
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Fee simple subject to a condition subsequent
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What future interest in the grantor accompanies a grant of less than full quantum?
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a reversion - Except for fsd = possibility of revertor, fsscs = right of entry.
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How does a reversion arise?
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It arises by operation of law (i.e. it does not have to be expressly reserved) "To A for life" - O has a reversion
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What is a remainder?
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A future interest created in a GRANTEE that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the remainder is created.
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Future Interests in Transferees
If our future interest is held by someone other than the grantor, it has to be one of three things (name all three) |
1) a vested remainder
2) a contingent remainder 3) an executory interest |
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What does a remainder always accompany?
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A preceding estate of known, fixed duration.
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When does a remainder follow a defeasible fee?
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Never!
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When is a remainder vested?
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1) It is created in an ascertained person, AND 2) Is not subject to any condition precedent
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When is a remainder contingent?
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1) It is created in an unascertained person, OR 2) Is subject to a condition precedent
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What is the Rule of Destructibility of Contingent Remainders?
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At COMMON LAW, the contingent remainder is destroyed if it is still contingent at the time the preceding estate ends.
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Today, what happens if a contingent remainder is still contingent at the time the preceding estate ends?
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The Destructibility Rule has been abolished (NY too). In the example "To A for life, and if B has reached the age of 21, to B," if B is still under 21 when A dies, O or O’s heirs holds the estate subject to B’s springing executory interest.
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Hypo: To A for life, then to A’s heirs. A is alive. What result?
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(1) At COMMON LAW (Rule in Shelly’s case): The present and future interests merge and A has a FSA. (2) Today, A has a life estate. A’s heirs have a contingent remainder. O has a reversion. (Rule in Shelley's Case has been virtually abolished-NY too)
Note - this is a rule of law, not construction - thus, it would apply even in the face of contrary grantor intent) |
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Hypo: To A for life, then to O’s heirs. O is alive. Result?
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CL - Contingent remainder in O’s heirs is void (Doctrine of Worthier Title). Thus, A has a life estate and O has a reversion. Promotes the free transfer of land (O can team up with A and transfer in FSA)
Note: This is a rule of CONTRUCTION (if grantor clearly intends to create a contingent remainder in his heirs, that intent is binding). NY - abolished Doctrine of Worthier Title - A has a life estate, O's heirs have a contingent remainder |
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What are the three kinds of vested remainders?
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1) Indefeasibly vested remainder
2) vested remainder subject to complete defeasance 3) vested remainder subject to open |
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Which of the three is the strongest and why?
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Indefeasibly vested remainder, b/c the holder of the remainder is certain to acquire an estate in the future, with NO CONDITIONS ATTACHED
e.g. - "To A for life, remainder to B" While A is still alive, B has an IVR and B's future interest passes by will or intestacy |
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1)What is a remainder vested subject to complete defeasence/total divestment?
2) Distinguish this concept from a contingent remainder |
1)The vested remainder is subject to a condition subsequent that could cut off his interest.
2) The difference is that here the remainder is created by a condition subsequent, while a contingent remainder is created by a condition precedent |
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What is the Comma Rule?
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Rule of construction telling the difference between conditions subsequent and precedent: When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent = VRSCD
Contrast - If the conditional lang. appears before the language creating the remainder, you have a condition precedent = contingent remainder |
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"To A for life, remainder to B, provided, however, that if B dies before the age of 25 to C." What result?
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A has a life estate.
B has a vested remainder subject to complete defeasence. C has a shifting executory interest. O has a reversion in the event that when the condition is breached niether C nor his heirs exist. |
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"To A for life, and if B has reached the age of 25, to B." B is 20. What result? What result if A dies prior to B's turning 25?
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A has a life estate.
B has a contingent remainder. O has a reversion. If A dies prior to B's turning 25, the estate reverts to B subject to B's springing executory interest. |
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What is a vested remainder subject to open?
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A class gift in which at least one member is qualified to take, but whose interest is still subject to partial diminution.
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What is the CL Rule of Convenience?
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A class closes when any member can demand possession.
e.g. "To A for life, then to B's children" A is alive and B has two children C and D. The class closes at B's death and also (according to the rule of convenience) at A's death (even if B is still alive) bc C and D can demand possession |
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What happens if the holder of a vested remainder subject to open dies before the class is closed.
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Assuming survival is not a condition to take, their heirs take upon the closing of the class.
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What is the difference between a shifting and springing executory interest?
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A shifting executory interests cuts off someone other than the grantor, a springing executory interest cuts off the grantor.
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Hypo: To A, if and when he becomes a doctor. A is still in high school. Result?
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A has a springing executory interest. O has a fee simple subject to a springing executory interest.
NOTE - NY has abolished the distinction between executory interests and contingent remainders - both are called "remainders subjet to a condition precedent" |
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What is the Rule Against Perpetuities?
What happens if a conveyance is found to violate the RAP? |
Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
The offending part of the conveyance is struck |
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What 4 steps are used to evaluate RAP problems?
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1. Determine what interests have been created.
2.Identify the conditions precedent to vesting. 3. Find a relevant measuring life. 4. Determine whether it is certain that within 21 years of the death of the measuring life we will know if the interest holder will take? |
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What future interests are subject to the Rule Against Perpetuities?
To what will the RAP never apply to? |
1) Contingent remainders 2) Executory interests 3) Vested remainders subject to open
Interests held by O, indefeasibly vested remainders, and vested remainders subject to complete defeasence. |
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How do you determine the measuring life for the Rule Against Perpetuities?
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Look for a person 1) Alive at the date of conveyance 2) Whose life or death is relevant to the condition’s occurrence
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What is the Fertile Octogenarian Rule?
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For the Rule Against Perpetuities, we assume that people are fertile no matter their age.
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What are the bright line violations of the Rule Against Perpetuities?
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1) A gift to an open class that is conditioned on the members surviving to an age beyond 21 (The entire class gift is void)bad as to one, bad as to all) 2) An shifting executory interest with no time limit within which it must vest
Exception - charity to charity gift does not violate the RAP |
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What reforms to RAP have been implemented?
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The "wait and see doctrine/second look" and the Uniform Statutory Rule Against Perpetuities.
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What is the majority position with respect to RAP?
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Must states have adopted the "wait and see doctrine" under which the validity of the future interest is evaluated at the end of the measuring life to see whether the interest has actually vested, Also most use the cy pres doctrine to reform the conveyence to conform as closely as possible to the grantor's intent without violating RAP (such as reducing contingent age to 21).
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What does the Uniform Statutory Rule Against Perpetuities do?
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Codifies the RAP and provides an alternate 90 year vesting period.
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What are the three types of concurrent estates?
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1) Joint tenancy 2) Tenancy by the entirety 3) Tenancy in common
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What are the distinguishing characteristics of a joint tenency?
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When one joint tenant dies, his share goes automatically to the surviving joint tenants. All hold identical interests, and they are alienable, but not descendable
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What must exist to create a joint tenancy?
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Must state the right to survivorship, and have the Four unities (T-TIP): 1) Created at same TIME 2) Same TITLE (instrument) 3) Identical INTERESTS 4) Right to POSSESS the whole AND, grantor must clearly express the right of survivorship.
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May a joint tenant sell or transfer her interest without the other tenants consent?
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Yes, but it results in a severance as to the seller’s interest (buyer is a tenant in common).
The doctrine of equitable conversion provides that the act of entering a sale effectively severs the joint tenency even where the sale has not yet occured. |
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What are the ways (outside of transfer to a third party) in which there may be a severance and partition of a joint tenancy?
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1) Voluntary agreement 2) petition a court for a Partition in kind (physical division) 3) petition a court for a Forced sale with the revenues divided between the parties. This will only occur where it is in the best interest of al
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What result if a joint tenant executes a mortgage or lien against her share?
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1) Jurisdiction follows title theory (minority): severs the tenancy 2) Jurisdiction follows lien theory (majority): The joint tenency will survive unless the interest is actually foreclosed upon or sold.
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In states where tenancy in the entirety exists, how is it created?
What is the major distinguishing factor of the tenency in the entirety? |
Any conveyence to a husband and wife with the right of survivorship is presumed to be a tenency in the entirety. (only marital, but can be same sex marriage)
Neither tenent can unilaterally destroy it. Creditors of a single spouse cannot take. |
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What are the distinguishing factors of the tenency in common?
What is a right of survivorship? |
Each co-tenent owns a seperate part, but has the right to possess the whole. The interest is fully alienable, devisable, and descendable. There are no survivorship rights.
The surviving holder automatically takes the entire interest. There is no probate and the dying person's heirs take nothing. |
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Rights and Duties of Co-Tenants
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any party, what result? |
Wrongful ouster.
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What result of a co-tenant leases all or part of the premises to a third party?
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That tenant must account to the others, providing them their fair share of the income.
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One co-tenant leaves for a semester abroad for three months, leaving other co-T. When she returns, she demands rent from other Co-T for his exclusive possession. Will she prevail?
May a co-tenant in exclusive possession of the property for the statutory period take by adverse possession? |
No. Absent ouster, a co-T in exclusive possession is not liable for the other co-T for rent.
Not unless there was an ouster (necessary to satisfy the hostility element of AP). Note - recent NY AC case says Co-T may fully acquire title by adverse possession, if he is in exclusive possession for 20 consecutive years |
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What is a co-tenant's responsibilities for the property's carrying costs?
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Each co-tenant must pay his or her fair share (e.g. taxes, mortgage interest payments) based upon his undivided share.
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What are a co-tenant's responsibilities for repairs to the property?
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The repairing co-tenant enjoys a right to contribution (based on share) for reasonable and necessary repairs provided that she has told the others of the need.
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What are a co-tenant's responsibilities for improvements made by another?
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No right of contribution for the "improvements" of a co-tenant. However, upon partition, the improving co-tenant is entitled to a credit equal to the increase in value caused by her efforts. But at partitiion, the so-called "improver" bears full liability for any drop in value caused by her.
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May a co-tenant bring an action for waste during the life of the co-tenancy?
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Yes
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What are the 4 types of leasehold estates?
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The tenency for years.
The periodic tenency. The tenency at will. The tenency at sufference. |
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What is a Tenancy for Years?
How do you know when a transfer is a tenancy in years? What is the additional requirement when a term of years is for greater than one year? |
1) Lease for fixed period of time
2) There is a termination date from the start - e.g. L leases B to T from Jan 1 to July 1" 3) It must be in writing bc of the SOF |
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What notice is needed for the termination of a tenancy for years?
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None (it is a lease for a fixed period).
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What is a periodic tenancy?
Give an example of how a periodic tenancy can be created expressly |
A lease that continues for successive intervals until landlord or tenant give proper notice to terminate
"To T for month to month; or week to week; or year to year..." |
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How long does a periodic tenancy endure?
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For successive intervals until L or T give proper notice of termination.
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How can a periodic tenancy rise by implication?
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1) Provision is made for payment of rent at set intervals 2) An oral term of years in violation of the SOF (measured by the way rent is tendered) 3) In a residential lease, if L elects to holdover T who has wrongfully stayed on past the conclusion of the lease (measured by the way rent in now tendered)
NOTE In NY - the landlord who elects to holdover a tenant creates an implied month-to-month periodic tenancy, unless otherwise agreed |
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How is a periodic tenancy terminated?
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Notice (usually written).
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How much notice must be given to terminate a periodic tenancy?
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Notice at least equal to the length of the period itself (unless otherwise agreed). Exception: If the tenancy period is a year or greater, only six months notice is required.
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When does a periodic tenancy end?
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At the conclusion of a natural lease period (e.g. end of the month).
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Hypo: Periodic tenancy of month-to-month. T gives notice on May 15. When is T bound until?
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June 30 (conclusion of the natural lease period).
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1)What is a Tenancy at Will?
2) What if the tenant pays regular rent? 3) Who can terminate a tenancy at will terminated? |
1) A tenancy for NO FIXED DURATION (e.g. "To T for as lig as L desires")
2) Unless the parties EXPRESSLY AGREE to a tenancy at will, a court will treat this as an implied periodic tenancy 3) May be terminated by either party at any time. However, a reasonable demand to vacate is usually required (in NY, L terminating must give 30 day notice) |
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When is a tenancy of sufferance created?
How long does the tenancy at sufferance last? |
When T has wrongfully held over past the expiration of the lease. The wrongdoer is given a leasehold estate so that L can recover rent
Lasts only until L either EVICTS T or decides to hold T to a NEW TENANCY |
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What are the essential duties of the tenant?
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1) Liability to third parties T invited2) Duty to pay rent 3) Duty to repair
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What are T's Liability to Third Parties?
What if L promises to make repairs, but fails to do so and 3rd P gets injured? |
1)T is responsible for keeping the premises in reasonably good repair
2)T is liable for injuries sustained by 3rd parties T invited, even where L promised to make all repairs (note - this is a matter of tort law) |
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T's Duty to Pay Rent
1) What are L's options if T breaches this duty and is in possession of the premises? 2) What is self-help? Can L turn to self-help in these circumstances? |
1) L's only options are to
a) continue relationship and sue for rent due or b) evict thru the courts (if L moves to evict, she is still entitled to rent from T until T, who is now a tenant at sufferance, vacates 2) Changing the locks, removing T or his possessions - Self-help is flatly outlawed and is punishable civilly and criminally (in NY, T gets treble damages) |
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What are a landlord's options if the tenant has wrongfully vacated with time left on the term of years lease?
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SIR: 1) SURRENDER (treat T's abandonment as an implicit offer of surrender) 2) IGNORE the abandonment and hold T responsible for the unpaid rent (only available in minority) 3) Re-let premises on wrongdoer's behalf and hold T liable for any deficiencies (L only has to make good faith effort)
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What is a tenant's duty to repair when the lease is silent?
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T must maintain premises, make ordinary repairs, and not commit waste
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What is a fixture?
Examples? |
Once moveable chattel that, by virtue of its annexation to reality, objectively shows an intent to permanently improve the realty.
E.g. heating systems, customized storm windows, a furnace, certain lighting installations |
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May a tenant remove a fixture if she installed it?
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No. If she does so, she COMMITS VOLUNTARY WASTE (so talk about this in the waste portion)
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1) How do you determine whether something qualifies as a fixture?
2) When may T remove a chattel that she has installed |
1) Express agreement controls, 2) In the absence of an agreement,T may remove a challtel that she has installed so long as removal will not cause substantial damage to the property. If it would cause sub. dam., then in OBJECTIVE JUDGMENT, T has shown the intent to install a fixture and it stays put.
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If T has expressly agreed in the lease to maintain the property in good condition, what is T's duty to repair?
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1) CL: T is responsible for any loss to the property including from a force of nature 2: Today: T may terminate the lease if the premises is destroyed without T's fault (use this on the MBE unless told otherwise) (NY is basically the same - can quit premises, surrender possession, no duty to pay rent- unless T expressly tries to restore premises)
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What are the elements of constructive eviction?
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1) Substantial interference due to L's actions or failure to act 2) Notice 3) Failure to fix the problem 4) T must VACATE
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Is a landlord liable for the acts of other tenants?
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Generally no, however: 1) L must not permit a nuisance on the premises 2) L must control all common areas
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May the implied warranty of habitability be waived?
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No
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What are T's entitlements when the warranty of habitability is breached?
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1) Move out 2) Repair and deduct from future rents 3) Reduce rent (or withhold rent) until court determines fair rental value (typically must hold in escrow) 4) Remain in possession, pay rent and seek money damages
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Does T have to vacate to recover for a breach of the implied warranty of habitability?
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No
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What is the doctrine against retaliatory evictions?
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If T lawfully reports L for housing code violations, L is barred from penalizing T (e.g. eviction, raising rent).
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Where T1 assigns to T2, what is the relationship between L and T2?
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1) They are in privity of estate (i.e. they are liable to each other for all the covenants in the original lease that run with the land, 2) They are not in privity of contract (no secondary liability)
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What is the relationship between a sublessee and the landlord?
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No privity of estate and no privity of contract.
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What are the exceptions to the common law doctrine of caveat lessee for landlord's tort liability?
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1) Common areas 2) Latent defect rule (L must warn T of hidden defects of which L has reason to know) 3) Assumption of repairs (on hook for negligent repairs) 4) Public use rule 5) Short term lease of furnished dwelling Note: CLAPS
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What is a servitude?
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A series of nonpossessory property interests (e.g. easements).
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What are the general categories of negative easements?
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1) Light 2) Air 3) Support 4) Stream water from an artificial flow Note: LASS
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How is a negative easement created?
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ONLY expressly, by a writing signed by the grantor.
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When is an easement appurtenant?
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When it benefits its holder in his physical use or enjoyment of his property. "B has an easement appurtenant to B's dominant land."
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When is an easement in gross?
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When it confers on its owner only some personal or pecuniary advantage that is not related to his use or enjoyment of his land (i.e. no dominant tenement).
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How do appurtenant easements pass?
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Automatically with the dominant tenement (regardless whether mentioned in the conveyance).
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Does the burden of an easement appurtenant pass automatically with the servient tenement?
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Yes, unless the new owner is a BFP without notice.
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Are easements in gross transferable?
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No, unless it is for commercial purposes.
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What are the ways to create an affirmative easement?
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1) Prescription 2) Implication 3) Necessity 4) Grant Note: PING
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What is a writing that evidences an easement called?
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A deed of easement.
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When is an affirmative easement created by implication?
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1) The previous use was apparent, AND 2) The parties expected that the use would survive division because it is reasonably necessary to the dominant land's use and enjoyment
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When is an affirmative easement created by necessity?
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When a grantor conveys a portion of his land with no way out (landlocked) except over some portion of his remaining land.
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When may an affirmative easement be created by prescription?
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When the elements of adverse possession are satisfied: 1) Continuous use for the statutory period 2) Open and notorious use 3) Actual 4) Hostile
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How is the scope of an easement determined?
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1) The terms of the grant, OR 2) The conditions that created the easement
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What are the various ways to terminate an easement?
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1) Estoppel 2) Necessity 3) Destruction of servient land 4) Condemnation of servient land by imminent domain 5) Release 6) Abandonment 7) Merger 8) Prescription Note: END CRAMP
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How is an easement by necessity terminated?
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As soon as the need ends, UNLESS the easement was expressly granted.
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When is an easement terminated by abandonment?
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Some physical action on the part of the easement holder indicating abandonment (mere nonuse or words not enough).
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How is an easement terminated by merger?
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When title to the easement and title to the servient estate become vested in the same person.
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When may an easement be terminated by prescription?
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When the servient owner interferes with it in accordance with the elements of adverse possession.
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What is a license in property law?
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A mere privilege to enter on another's land for some delineated purpose.
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When does a license need to comply with the Statute of Frauds?
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Never!
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How are licenses terminated?
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They are freely revocable at the will of the licensor, UNLESS estoppel bars revocation.
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Are oral easements enforceable?
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No! They violate the Statutes of Fraud. Note: This creates a freely revocable license.
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What is the holder of a profit entitled to do?
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Enter the servient land and take from it soil or some derivative of that soil (e.g. oil, timber, etc.).
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What is the difference between a covenant and an easement?
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A covenant is not the grant of a property interest, but a CONTRACTUAL limitation or promise regarding land.
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How do you know whether to construe a promise as a covenant or an equitable servitude?
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On the basis of the remedy P seeks: 1) Money damages = covenant 2) Injunction = equitable servitude
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What are the requirements for a burden to run with the land?
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1) Writing: original promise had to be in writing 2) Intent: original parties intended promise would run 3) Touch and concern: promise must affect the parties' legal relations as landowners 4) Horizontal and vertical privity
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What types of relationship must exist for there to be horizontal privity?
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1) Grantor/grantee 2) Landlord/tenant 3) Mortgagor/mortgagee
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What is the only circumstance where vertical privity is absent between A and A1?
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Adverse possession.
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What is required for the burden to run from A to A1?
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Notice of the promise when A1 took.
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What are the requirements for a benefit to run with the land?
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1) Writing: original promise in writing 2) Intent: original parties intended benefit should run 3) Touch and concern: promise affects the parties as landowners 4) Vertical privity (but not horizontal)
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What is the difference between the requirements for a burden to run vs. benefits to run with the land?
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For burdens to run, there must have been horizontal privity between the original parties.
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What is the difference between the requirements for a covenant to run with the land vs. an equitable servitude?
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Covenants require privity to bind successors.
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What are the requirements for the common scheme doctrine in property law?
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A court will create an implied equitable servitude (i.e. reciprocal negative servitude) IF: 1) When the sales began, the subdivider had a general scheme of residential development which included D's lot, AND 2) D had notice of the promise contained in the prior deeds
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What types of notice satisfy the common scheme doctrine?
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1) Actual notice 2) Inquiry notice: neighborhood conforms to the common restriction, OR 3) Record notice: imputed on the basis of publicly recorded documents (jurisdiction split)
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What equitable defenses are available to enforcement of an equitable servitude?
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ONLY changed condition (changed circumstance alleged by the party seeking release is so pervasive that the entire area has changed).
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What are the elements of adverse possession?
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The use must be: 1) CONTINUOS and uninterrupted for the statutory period 2) OPEN and notorious (type of possession the usual owner would make under the circumstances) 3) ACTUAL (entry must be literal) 4) HOSTILE (don't have true owner's consent to be there)
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When can an adverse possessor tack on his time with his predecessor's?
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Where there is privity, which is satisfied by any non-hostile nexus such as contract, blood, deed, or will.
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When is tacking not allowed for adverse possession?
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When there has been an ouster.
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When WON't the statute of limitations run against the owner for adverse possession?
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When the owner is afflicted by a disability (e.g. insanity, infancy, imprisonment) at the START of the adverse possession.
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What are the steps in a conveyance of real estate?
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1) Land contract, which endures until 2) The closing, where the deed becomes operative
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What are the requirements for a land contract?
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1) Must be in writing and signed by the party to be bound 2) Must describe the land, AND 3) Must state some consideration
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When does part performance for the sale of land satisfy the SOF?
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When TWO of these happen: 1) B takes possession 2) B remits all or part of the price, OR 3) B makes substantial improvements
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What are the implied promises in every land contract?
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Seller promises: 1) Marketable title AT CLOSING 2) Not to make any false statements of material fact
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What renders title unmarketable?
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1) Any part of the land is subject to adverse possession, 2) Encumbrances (servitudes or mortgages unless buyer has waived) 3) Zoning violations
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May a buyer claim that title to land is unmarketable because it is subject to a mortgage prior to closing
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No, so long as the parties understand that the closing will result in the mortgage being satisfied (i.e. with proceeds from the sale).
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When is a seller of land liable for latent defects?
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1) Material lies, AND 2) Material omissions Note: Disclaimers will not absolve seller of liability for above.
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What is required for a lawful execution of a deed?
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1) Must be in writing, signed by grantor 2) Description of the land: unambiguous description and a good lead (does not have to be perfect!) 3) Delivery
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What is the test for delivery of a deed?
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Did grantor have the present intent to be immediately bound (irrespective if deed instrument was actually handed over).
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What happens of a deed, absolute on its face, is transferred to grantee with an oral condition?
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The oral condition drops out.
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What are the distinguishing characteristics of the quitclaim deed?
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1) It contains no covenants 2) Grantor isn't promising that he has title to convey 3) Grantor does implicitly promise to provide marketable title at the closing (but if a problem arises post closing, seller is off the hook)
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What are the covenants included in a general warranty deed?
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1) SEISIN (grantor promises he owns the estate he now transfers) 2) RIGHT TO CONVEY (he has the power to make the transfer 3) AGAINST ENCUMBRANCES (no servitudes or liens on the land) 3) QUIET ENJOYMENT (grantee won't be disturbed in possession by a third party's lawful claim of title) 4) WARRANTY (grantor promises to defend grantee should there be lawful claims of title asserted by others) 5) FURTHE ASSURANCES (grantor promises to do whatever reasonably necessary in future to perfect title)
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When is a present covenant breached?
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At the time of delivery (also when SOL begins to run).
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When is a future covenant breached?
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When grantee is disturbed in possession (also when SOL begins to run).
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What covenants are included in the statutory special warranty deed?
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Grantor promises (ONLY on behalf of himself): 1) He hasn't conveyed land to anyone other than grantee, AND 2) The and is free from encumbrances made by the grantor
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What are the requirements to be a BFP?
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1) Purchase for value (some substantial pecuniary remediation) 2) Without notice that someone got there first
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What types of notice destroys BFP status?
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1) Actual notice 2) Inquiry notice (buyer on notice of whatever a reasonable exam of the land would show) 3) Record notice (B is on notice if, at the time he takes, A's deed was recorded properly)
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In a NOTICE jurisdiction, must the subsequent BFP record?
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No. The subsequent BFP wins as long as the other guy failed to record.
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Is a RACE NOTICE jurisdiction, must the subsequent BFP record?
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Yes. The first to record wins.
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What is the Shelter Rule?
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One who takes from a BFP will prevail against any entity that the BFP would have prevailed against (even if the transferee wouldn't qualify as a BFP).
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What is the rule of the wild deed?
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If a recorded deed (A to B) has a grantor unconnected to the chain of title (e.g. O to A wasn't recorded), the deed is a wild deed. Thus, the A to B recording cannot give record notice of its existence.
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What is the rule of estoppel by deed?
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One who conveys reality in which he has no interest is estopped from denying the validity of that conveyance if he later acquires it.
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What are the elements of a mortgage?
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1) A debt 2) A voluntary lien on debtor's land to secure the debt
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What rights do the parties have once a mortgage is created?
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Unless and until foreclosure, 1) Debtor has title and right to possess 2) Creditor has a lien
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What is a holder in due course of a mortgage deed/note?
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Where the original creditor transfers the mortgage deed to a third party, the transferee becomes a holder in due course. Note: the holder in due course is free from any personal defenses that could have been raised against the original mortgagee (e.g. fraud, unconscionability).
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What happens if a necessary party is not joined in a foreclosure action?
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His mortgage remains on the land.
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If the proceeds from a foreclosure sale are insufficient to satisfy all the debts, what can the unpaid debtors do?
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Bring a deficiency action against debtor for remaining balance.
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How does foreclosure by a junior lien holder affect the interests of a senior lien holder?
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It doesn't. Foreclosure does not affect any interest senior to the mortgage being foreclosed. Thus, the senior lien holder's mortgage remains on the property. Note: Proceeds from the foreclosure sale go only to the foreclosing party and interests junior to it!
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How is priority determined with multiple lien holders against Blackacre?
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First to record gets priority. Note: purchase money mortgagee's always have priority if they record.
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What is a purchase money mortgage?
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A mortgage given to secure a loan that is used to buy the encumbered land.
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What is redemption in equity?
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At any time prior to the foreclosure sale, debtor can try to redeem the land.
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How is an equitable redemption exercised?
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By making any missed payment or payments, plus interest and costs.
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What is an acceleration clause?
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A clause in a mortgage or note that permits the mortgagee to demand the full balance due in the event of default.
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May a mortgagor waive the right to redemption in the mortgage itself?
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No! This is called clogging the equity of redemption.
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What is statutory redemption and what are its characteristics?
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The mortgagor has a statutory right to redeem for some fixed period (e.g. six months) AFTER the foreclosure sale. Characteristics: (1) The redemption price is the foreclosure sale price, NOT the original debt amount. (2) Generally, the mortgagor has the right to possess Blackacre during the statutory period.
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What is the riparian doctrine?
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Water belongs to those who own the land bordering the water course. One riparian is liable to another when his use unreasonably interferes with the other's use.
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What is the prior appropriation doctrine for water courses?
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A person can acquire the right to divert and use water (for a beneficial purpose including agriculture) from a water course merely by being the first to do so. The person does not have to be a riparian owner.
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In property law, what do you do to remove a trespasser?
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Bring an action for ejectment.
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What is a private nuisance?
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The substantial and unreasonable interference with another's use and enjoyment of land.
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What must you show to get a variance from zoning laws?
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1) Undue hardship 2) Variance won't reduce neighboring property values.
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What is the rule for nonconforming uses?
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The nonconforming use cannot be eliminated all at once unless just compensation is paid.
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What is the constitutional test for government exactions?
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The exactions must be both reasonably related in nature and in scope to the impact of the proposed development.
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