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108 Cards in this Set

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Prescriptive Easement: Alienable
A prescriptive easement is alienable where the parties are in privity.
Duties of Dominant Tenant
Right to inspect, maintain and improve the easement, and there is no liability for damages caused through reasonable repair and maintenance
Implied Reciprocal Cross Easement
Each owner is a quasi-dominant and quasi-servient.
Easement by necessity/implication
1) no writing, 2) common grantor, 3) quasi-easement, 4) necessity: a) "reasonable" is necessary where the grantee receives the dominant tenement, b) "absolute" (strict) is required where the grantor retains the dominant tenement. Because he owned both originally, knew of the need and should have used a reserved easement in writing in original conveyance.
Abandonment of Easement
1) intent to abandon, AND 2) physical act. Non-use alone is insufficient.
Prescriptive Easement: termination by adverse possession
A prescriptive easement can be terminated via non-use alone under a theory of adverse possession if the adverse possessor meets the statutory requirements - time, open/notorious, continuous possession.
Private Land Use Restrictions: Covenants v. equitable servitudes
Covenants and equitable servitudes are private land use restrictions. These are the opposite of land zoning. Look at the remedy being sought: covenant = damages at law, equitable servitude = injunction/specific performance. Covenants are generally between 2 people. Equitable Servitudes are large tracts of land - "common development scheme".
Covenants: Five Elements
1) horizontal privity, 2) vertical privity, 3) touch and concern, 4) intent, 5) writing
Covenants: Horizontal Privity
An interest must pass from conventor to conventee.
Covenants: Vertical Privity
Relationship among successors in interest to the original parties. Benefit and burden of promise both run with the land.
Covenants: Touch and Concern
The restriction must effect the land itself. Aka "In rem restriction"
Covenants: Intent
Intent that the covenant run with the land.
Covenants: Writing
The statute of frauds requires a writing for all K re: interests in property including covenants.
Covenants: Burden and Benefit
Requires vertical privity. Burden is the requirement to comply with the covenant. Benefit is the ability to enforce the covenant.
Negative Covenants
Most covenants are negative covenants. They restrict what can be done on the land.
Affirmative Covenants
Cts are less willing to enforce an affirmative covenant because it requires the ct to supervise the use of the land. But, affirmative covenants are still valid.
Equitable Servitudes: 4 elements
1) Notice, 2) Intent, 3) Touch and concern, 4) writing
Privity is not required. Notice replaces privity.
Equitable Servitudes: Notice
Can be any kind of notice: actual, record, inquiry, or constructive notice. There must be notice to the whole world that there is a restriction.
Equitable Servitudes: Intent
Intent that the restriction run with the land.
Equitable Servitudes: Touch and Concern
There must be an "in rem" restriction.
Equitable Servitudes: Writing
The statute of frauds requires there be a writing for all K re: real property including equitable servitudes.
Equitable Servitudes: subsequent deeds that don't include the restriction
When a plat is recorded and the original deeds includes a restriction, subsequent deeds are held to have notice by way of the plat that was recorded, giving notice to the whole world. Therefore even if the restriction is absent from a subsequent deed, the new deed holder is bound by the equitable servitude that runs with the land.
Takings - 5th Amendment: 3 ways to take property
1) imminent domain (compensation must be paid), 2) inverse condemnation (compensation must be paid), 3) police power/regulation for health and safety reasons (no compensation)
Assignment: Definition
Transfer of the entire leasehold balance.
Sub-lease: Definition
Transfer of any amount LESS THAN the entire leasehold balance. Subleases cannot grant a profit because to do so requires ownership not just a lease.
Sub-Lease: Duties of assignees
The last assignee in a series is primarily liable for all duties that run with the land (such as the duty to pay rent). The first assignee in the series is secondarily liable under a privity of K theory. However, a subsequent assignee is NOT liable for predecessor's rent.
When a lesee somewhere between the original and the latest is default on rent, the landlord may get rent from original (but not last). Then original may get indemnification from the defaulting party.
Sublease: Landlord CoA limitations
In a sub-lease, a landlord has no CoA against the subleasee because there is no privity of K and a subleasee is not liable for predecessor's rent.
Prohibitions Against Sublease and Assignement
Prohibitions against sublease and assignment are strictly construed. OPPOSITE of K law!!!
Voluntary Waste: Lessee
A lessee has a right to possession not a right of ownership. Therefore, a lessee cannot grant a profit which would = voluntary waste. A lessee cannot commit voluntary waste.
Duty to pay rent: independent covenant
At common law: the duty to pay rent is an independent covenant. It is not excuses by the breach of an express provision in the lease. Refusal to pay rent for violation of a covenant = landlord wins!
Constructive Eviction: Duty to pay rent is discharged.
1) Premises uninhabitable, 2) tenant must move out. The duty to pay rent IS discharged.
Periodic Tenancy
Automatically renews at the end of the payment period. One payment period is required as notice for the landlord to terminate the tenancy. Ex: month-to-month rent, must give 1 month notice.
English Rule
Landlord has a duty to deliver possession at the lease inception.
American Rule
Landlord does NOT have a duty to deliver possession at the lease inception but impliedly warrants tenant has a legal right to possession. Tenant #2 only has a CoA against holdover tenant #1.
Fixtures: Definition
A fixture is chattle which has become real property because it is not removable.
Trade Fixture: Definition
A trade fixture is chattel annexed to land BY TENANT for pecuniary gain. It is removable before the lease expires, unless an accession occurs.
An accession is where a chattel loses it's identity as a trade fixture because it is permanent - balcony/loft/beams.
Subjacent and Lateral Support
Landowner is strictly liable if his excavation causes *unimproved* adjacent land to subside.
Growing Crops
Classified as personal property and will pass to the grantee upon sale of the land. The statute of frauds does NOT apply because they are personal property. But a mortgagor is entitled to $$ from a crop before land is sold as a result of a foreclosed mortgage.
Water Rights: Prior Appropriation v. Riparian Rights
Prior Appropriation - first in time, first in right. Goal: maximum beneficial use. Riparian Rights - domestic use is superior to agricultural use.
Adverse Possession: Elements
1) Physical: actual/exclusive, open/notorious, 2) Mental: adverse/hostile, 3) For statutory period of time.
Adverse Possession: Burden of proof
The adverse possessor bears the burden of proof by a preponderance (civil case).
Adverse Possession: Hostile
Occupies with intent to possess.
Ouster
Wrongful exclusion from possession. there can be no adverse possession among co-tenants absent ouster.
Boundary Line Agreement: elements for validity
Valid if: 1) parties *unaware* of true boundary line, 2) parties *agree* as to location, 3) *possession* that conforms to the agreement
Judicial recognition will be given to the agreed upon location not the true boundary line even as against subsequent purchasers. However, subsequent purchasers may recover against grantor's IF there was a warranty deed.
Deeds: Definition
A deed must adequately describe the land conveyed.
Deeds: Rules of Construction
When a deed fails to adequately describe the land conveyed rules of construction fill in the missing parts. General Rule: Monuments prevail over courses and distances.
Monuments are any objects on the ground whether natural or artificial. Courses/distances - north, south, east, west.
Fee Simple Absolute - ALL other fees are defeasible fees because somebody else could take.
O to A and his heirs. Present Possessory Interest. No future interest in grantor or 3rd party.
Fee Simple Determinable (FSD)
O to A as long as Blackacre is used only for school purposes. Future interest in grantor as POR.
Possibility of Reverter (POR)
Automatically at instant condition ceases interest in property reverts to grantor.
Fee Simple Subject to Condition Subsequent (FSSCS)
O to A on condition that blackacre only be used for school purposes. May also be created using words "but if". Future interest in grantor as ROR.
Right of Re-entry (ROR)
Does not automatically occur. Grantor must exercise right upon cessation of condition subsequent. Opposite of POR.
Fee Simple Subject to an Executory Limitation (FSSEL)
O to A as long as blackacre is used for school purposes. (May also be created using words "on condition that".) Subject to either a springing E.I. (in grantor w/gap in season)or a shifting E.I.* (in 3rd party subject to RAP).
Springing Executory Interest
O to A as long as blackacre is only used for school purposes then to B at age 21. But, facts state B is only 11.This creates a gap in season. During this time, title is held by grantor as a springing EI. Upon reaching 21, interest automatically vests in B.
Shifting Executory Interest: subject to RAP
O to A as long as blackacre is only used for school purposes then to B at age 21. Facts state B is ALREADY 21. Therefore interest vests in B without a gap in season. This is subject to RAP.
Life Estate
O to A for life. Followed by either a reversion in grantor or a remainder in a 3rd party (either contingent or vested).
Contingent Remainder: subject to RAP, occurs w/life estate
Occurs at the natural termination of the preceeding estate.
Executory Interest
Generally follows a fee. Cuts short the preceeding estate - divests. Occurs automatically upon the occurence of the condition.
"Subject to the understanding that"
These words don't create anything. These are just K language.
"As long as", "while", "During", "but if", "on condition that"
These words can create a fee simple determinable.
Steps to Prop Questions
1) characterize the interest, 2) is the interest valid?, 3) MBE = process of elimination / Essay = argue both sides
Right of Re-entry - expression required
ROR must be expressly stated in the instrument or it does not exist.
Life Estate per Otre Vie
Life estate is alienable. Life estates that are transfered are for the life of the original life estate holder NOT the subsequent purchaser. A life tenant can only encumber that which he owns - and all he owns is for the duration of his life.
Remainders - descendable
Remainders are descendable to heirs.
Rule Against Perpetuities - Areas of Applicability
1) Contingent Remainders, 2) Executory Interests, 3) Class Gifts, 4) Powers of Appointment, 5) Options to Purchase (Fee options only - not lease options), 6) Rights of first refusal
RAP - Class Gifts
"O to A, then to such of her children as are living at her death." A class gift vests only when the class closes.
Restraint on Alienation - VOID
Prohibition on sale, transfer, mortgage. General rule: Restraints on alienation are invalid against fee interests. Opposit of K law!! Does not invalidate entire devise, just cut out the alienation clause.
RAP - Right of First Refusal
A right of first refusal must be exercised within 21 years of its creation.
RAP - NO measuring life for: rt of 1st refusal or options to purchase
Options to purchase connected with a fee and rights of first refusal do not use measuring life. It must be exercised within 21 years of its creation.
Concurrent Estates - Joint Tenancy (JT)
1) 4 Unities - time, title, undivided interest, possession, 2) survivorship - estate passes to survivor
Concurrent Estates - Severance
JT becomes Tenancy in Common (TC) when: 1) conveyance, 2) mortgage under title theory, 3) lease, 4) partition action, 5) execution sale by judgement creditor
Concurrent Estates - Tenancy in Common (TC)
1) only 1 unity - possession, 2) no suvivorship - co-tenants may devise their interest.
Title Theory - MBE tests more on this
In title theory states, the borrower does not actually keep title to the property during the loan term. The seller gives the buyer/borrower a deed to the property but when the borrower signs the mortgage for the loan the borrower gives the title back to the mortgage holder. The lender then holds title to the property, as security only, until all loan payments have been made. During that time the borrower has the right to possession of the property, and the lender delivers the deed back to the borrower only after the loan obligation has been satisfied.
Lien Theory - Majority
In a lien theory state, the buyer holds the deed to the property during the mortgage term The buyer promises to make all payments to the lender and the mortgage becomes a lien on the property, but title remains with the buyer. The lender's lien is removed once the payment of all loan payments have been completed.
Estoppel by Deed (aka doctrine of after-acquired property)
A non-owner (A) purports to convey a warranty deed to (B). Owner (O) then conveys deed to A. Deed automatically by operation of law vests in B. MUST be a warranty deed between A & B. A is estopped to deny the validity of the A-B deed.
Profit: Definition
The right of one person to come onto the land of another and *TAKE* some part thereof. Leaseholders may NOT grant a profit. Profits require ownership.
Easements: Definition
A non-possessory interest in the use of land of another.
Easements in Gross
1) no dominant tenement, 2) do not run with the land
Easements Appurtenant
1) 2 parcels of land - benefitted/dominant, burdened/servient, 2) do run with the land
Easements - Termination
1) merger - unity of ownership, 2) written release, 3) end of necessity, 4) abandonment - must have BOTH intent and physical act mere non-use does NOT terminate
Easement - Creation
1) expressly in writing, 2) reservation in grantor, 3) estoppel, 4) implication (necessity), 5) prescription
Easement - by prescription
Similar to adverse possession but is adverse use. Open / visibly / adverse / hostile / stat time. Alienable where the parties are in privity.
Duties of the Dominant Tenant
Right to inspect, maintain and improve the easement, and there is no liability for damages caused through reasonable repair and maintenance.
Implied reciprocal cross easement
Each owner is a quasi-dominant AND a quasi-servient.
Easement - by necessity/implication
1) no writing, 2) common grantor, 3) quasi-easement, 4) necessity:a) "reasonable necessity is required when the grantee receives the dominant tenement. b) "absolute" (strict) necessity is required where the grantor retains the dominant tenement because the grantor knew of the necessity and had an opportunity to reserve an easement in writing in the conveyance and should have.
Easement Termination - abandonment v. non-use
1) intent to abandon PLUS 2) physical act. Mere non-use is insufficient. An easement created by prescription (adversely) MAY be terminated by non-use.
Covenants and Equitable Servitudes
Both are private land use restrictions. To tell the difference consider the remedy: damages = covenants, injunctions/specific performance = equitable servitudes
Covenants are between two people. Equitable Servitudes are for "common development scheme".
Statute of Frauds - Four Required Elements and one Exception
Elements: 1) identity of parties, 2) identity of subject matter, 3) consideration, 4) signature of seller. Exception: Part performance - 1) possession PLUS 2) improvements &/or payment
Co-tenants and intestacy
General Rule: Absent a will the interest of each co-tenant passes by intestacy.
Deeds: Valid Delivery
1) proper execution and 2) present intent to pass title
Deeds: Forged Deeds
Forged deeds are void.
Equitable conversion - Common Law (majority)
Risk of loss for casualty (act of God) is placed on the BUYER during the executory period (date of sale contract and date of closing).
The buyer is the equitable owner of the land, whereas the seller who holds legal title, is the equitable owner of the right to the full purchase price.
Uniform Vendor & Purchaser's Risk Act (minority)
Risk of loss is on buyer only if he has legal title or possession of the property.
Marketable Title
Every contract for the sale of land contains an implied warranty of marketable title. Title that is reasonably free of defect of law or fact. Marketable title is viewed at closing, until closing the seller has the right to remedy defective title.
Encumbrances: 1) mortgage, 2) lien, 3) easement, 4) lease, 5) equitable servitude, 6) zoning violation, 7) future interest
Bona Fide Purchaser (BFP)
1) pays value (purchaser, mortgagee, judgment creditor) 2) takes in good faith AND, 3) Takes without notice (KEY MBE ELEMENT!)
Recording Statutes
1) Race - 1st to record wins, 2) Notice - last BFP wins,
3) Race/Notice - 1st BFP to record wins
If you see the word "first" then it is Race/Notice. If there is no word "first" then it is Notice statute.
Analyzing a Recording Statute question
1) what kind of statute is it?
2) who wins?
3) go through conveyances - look for last and look for bfp
Wills v. Deeds
General Rule: A will speaks at death but a deed is effective upon delivery.
Don't have to record:
In a Notice jx. Only have to take without notice of anybody else's record.
When recording statutes do not apply:
1) Heirs, donees, devisees adverse possessors because no value is paid.
2) Void deeds - forged deeds etc
3) Undelivered deeds
4) boundary line agreement - possession is permissive
Mortgage
An interest in land created in writing providing security for the performance of a duty or the payment of a debt.
Foreclosure
The method by which the security is applied to satisfy the debt.
Deficiency Judgment
Allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt.
Mortgagees
2 causes of action: 1) in personam on the debt, or 2) in rem on the security
Rights of a Grantee
A grantee who assumes a mortgage is personally liable. A grantee who takes "subject to" the mortgage is not personally liable.
Subject to the Mortgage
Where the deed makes no reference to the mortgage, it is presumed the grantee takes subject to and is not personally liable.
Purchase Money Mortgage (PMM)
A PMM takes priority over other prior mortgages, regardless of recording statutes. The PMM itself, however, must be recorded.
Exoneration
The right of a surety to compel the mortgagee to proceed first against the person or property primarily liable.
Foreclosure/Redemption
Redemption - buy back interest in property Foreclosure - 1) foreclosure by a senior encumbrancer terminates all junior interest which have been joined. 2) where a senior forecloses all jr interests are then treated as mortgagors, and have a right to redeem.
Lien Theory (majority): foreclosure does not extinguish the mortgagor's equity of redemption