Property Law

Front 1

What are the types of freehold (real property under legal title ) interests?

Back 1

1) Fee Simple Absolute (to x & heirs)
2) Fee Simple Defeasible (So long as, during, until, while ; auto revert)
3) Fee simple subject to condition subsequent (On the condition that, but if; right of re-entry)
4) Fee simple subject to an executory interest (condition + shifting or springing)
5) Fee Tail ("to B and the heirs of his body"; Limited to lineal descendants of grantee)
6)Life estate (per otra vie, dower, curtsy)



Life Estate

Front 2

What are the three ways a freehold can be transferred (distinguishing characteristics)?

Back 2

1. Devisable- passed through will

2. Descendible- passed through intestate succession

3. Alienable- passed during the holder's life

Front 3

How do you create a a fee simple absolute?

Back 3

'To A' or 'To A and his heirs'

Front 4

What are the distinguishing characteristics of a fee simple absolute?

Back 4

absolute ownership of potentially infinite duration, is freely alienable (i.e., easily bought or sold), and has no accompanying future interest.
(Divisable, Descendible, and Alienable)

Front 5

What future interests accompany a fee simple absolute?

Back 5

NONE!!!! If there's a future interest it isn't a fee simple absolute.

Front 6

How do you create a fee tail?

Back 6

'To A and the heirs of his body'

Front 7

What should you know about a fee tail?

Back 7

nothing really- it's been abolished in most states (red herring?)

Today, if you attempt to create a fee tail, you end up with a FSA

Front 8

What future interests accompany a fee tail?

Back 8

Historically, the grantor would have reversion rights (if no heirs) while third parties would have remainder rights

Front 9

What are the three different types of defeasible fees?

Back 9

Fee Simple Determinable (auto revert)

Fee Simple Subject to Condition Subsequent (right of re-entry)

Fee Simple Subject to Executory Limitation (shift or spring to 3rd party)

Front 10

How do you create a fee simple determinable?

Back 10

CLEAR DURATIONAL LANGUAGE, no 3rd party rights

'To A for so long as...'

'To A during...'

'To A until...'

Front 11

What happens if the stated condition in a fee simple determinable is violated?

Back 11

AUTOMATIC FORFEITURE!

Front 12

are defeasible fees divisable, descendible, and alienable?

Back 12

Yes, subject to the condition (hmm, what happens if devisee's heir violates the condition?)

Front 13

What future interests accompany a fee simple determinable?

Back 13

The grantor retains 'the possibility of reverter'

Front 14

How do you create a fee simple subject to condition subsequent?

Back 14

CLEAR DURATIONAL LANGUAGE and grantor must CARVE OUT THE RIGHT TO REENTER

'To A, but if X event occurs, grantor reserves the right to reenter and retake'

Front 15

What happens if the stated condition in a fee simple subject to condition subsequent is violated? Does fee simple subject to condition subsequent need RAP analysis?

Back 15

The grantor (or estate) has the OPTION to terminate the estate and the right to reenter; no RAP-- considered vested, but rt to re-enter cannot be transferred by grantor by conveyance.

Front 16

What future interests accompany a fee simple subject to condition subsequent?

Back 16

Grantor has a 'right of reentry'... which is synonymous with 'the power of termination'

Front 17

How do you create a fee simple subject to executory limitation?

Back 17

CLEAR DURATIONAL LANGUAGE coupled with a SHIFTING /SPRINGING EXECUTORY INTEREST (shifts to 3rd party)

'To A, but if X event occurs, then to B' (shifting)

OR

To A for life, then to B after (condition X occurs) (springing - may revert to grantor estate permanently, or spring in fee simple to new devisee after condition met; an interest springs when it divests grantor subj to a condition )

Front 18

What happens if the stated condition in a fee simple subject to shifting executory limitation is violated?

Back 18

AUTOMATIC FORFEITURE in favor of someone other than the grantor

Front 19

Does 'To A for the purpose of X' create a fee simple defeasible?

Back 19

No - not a clear condition. A HAS A FEE SIMPLE ABSOLUTE

Front 20

Can you make an absolute restraint on alienation?

Back 20

NO- A restraint on alienation is VOID. For example... 'To A so long as she never attempts to sell, otherwise to O.' Offending phrase is thrown out, so A has a FSA and O has NOTHING. (Watch for restraints on alienation in all conditional estates )

Front 21

How do you create a life estate?

Back 21

'To A for life'

The estate must be measured in EXPLICIT LIFETIME TERMS and NEVER IN TERMS OF YEARS

Front 22

Does this have a future interest?
gift from O 'to A for life'

Back 22

O has a reversion and either he or his heirs will get the estate back after A's life estate

Front 23

If the conveyance is not for the duration of your life, but rather for a specified number of years, what does that make it?

Back 23

A leasehold interest and not a life estate

Front 24

If the conveyance is not for duration of YOUR life but rather for the life of someone else, (e.g. 'To A for the life of B') what does that make it?

Back 24

A life estate pur autre vie

Front 25

If you have a life estate and you sell your entire interest to Joe, what does Joe have? Is there a future interest?

Back 25

A life estate pur autre vie... he has the estate for the duration of YOUR life. O has a reversion- so when you die, Joe has to give the estate back to O or his heirs

Front 26

What are the rights and duties of a life estate holder with respect to the actual estate?

Back 26

The life tenant is entitled to ALL ORDINARY USES and PROFITS from the land. Not required to do anything but make basic repairs, insure the property and pay taxes.

BUT the life tenant CANNOT commit waste!

Front 27

What are the three species of waste?

Back 27

1. Voluntary or Affirmative Waste

2. Permissive Waste or Neglect

3. Ameliorative Waste

Front 28

What is voluntary waste?

Back 28

A life tenant reduces economic value of the real property through voluntary action (e.g., destruction of structure on property). Aka affirmative waste.

Front 29

When can a life tenant exploit the natural resources on a property?

Back 29

Prior Use- it was done prior to the grant (Open Mine Doctrine- if there was mining on the land, the life tenant can only continue the use of the open mines and cannot open new ones)

Reasonable repairs- you can consume natural resources for reasonable repairs or maintenance

Grant- Express grant

Exploitation- it is the only purpose for having the land (like a quarry) (similar to prior use)

Front 30

What is permissive waste?

Back 30

A life tenant reduces economic value of the real property through inaction (e.g., failure to address problem)

...you don't have to replace the entire leaky ceiling BUT you do have to patch up the leaks in a reasonable manner

Also- if you make a profit or income from the land, you have to pay all ordinary taxes on such... If no income or profit, pay ordinary taxes to the extent of the premises fair rental value

Front 31

What is ameliorative waste?

Back 31

life tenant changes the original purpose of the land and thereby increases the economic value of the real property (e.g., building a new structure). Not generally recognized by American courts. (might even be encouraged ) Under common law, not allowed.

Front 32

What future interests accompany a life estate?

Back 32

If the future interest is held by grantor- REVERSION

If the future interest is held by someone else- REMAINDER

Front 33

What type of future interest accompanies defeasible fees?

Back 33

Executory interests (if held by someone other than O)

NEVER A REMAINDER

Front 34

What makes a remainder vested?

Back 34

If the receiver is ASCERTAINED (named, otherwise identifiable, and all individuals who could enter a class have already done so) and not subject to any CONDITION PRECEDENT

Front 35

What makes a remainderman UNASCERTAINED?

Back 35

1. To A for life, then to B's first child- if A is alive but B has no children, the unborn child has a contingent remainder

2. To A for life, then to B's heirs- If A is alive and B is alive, B's heirs have contingent remainders because living people cannot have heirs

3. To A for life, then to those children of B who survive A- If A is alive, we don't know yet which children will survive her, or even if she's had all of her children yet, so they have contingent remainders

once the remainderman ID resolves, he is ascertained

Front 36

What is a condition precedent?

Back 36

If the granting of the estate is conditional upon something happening, then the remainderman has a contingent remainder and O has a reversion (because if the condition does not happen, the estate reverts back to O or his heirs)

EXAMPLE: To A for life, then, if B graduates from college, to B

Front 37

What is the deal with destructibility of contingent remainders?

Back 37

Historically- if a condition precedent was not satisfied prior to the end of the preceding estate, the remainder is destroyed and O or O's heirs get the estate in FSA

Modern- abolished... now, if the preceding estate ends before the condition is satisfied, O or O's heirs would hold the estate subject to the remainderman's springing executory interest.

Front 38

What is the deal with the Rule in Shelley's Case?

Back 38

Thus, in a basic conveyance, "O grants Blackacre to B for life, then to B's heirs," absent the rule there was a life estate in B, and a contingent remainder in B's heirs. The Rule converted the contingent remainder in B's heirs into a vested remainder in B.

The Rule's effect ended there. After that, the doctrine of merger operated on the two successive freehold estates placed in the same purchaser (B's life estate and B's remainder in fee simple) and converted them into a single fee simple absolute in B.

Historically- 'To A for life, then, on A's death, to A's heirs'... the present and future interests would MERGE And A would have a FSA

Modern- virtually abolished (including MD)... now, A has a life estate, A's as of yet unknown heirs have contingent remainders, and O has a reversion

Front 39

What is the deal with the Doctrine of Worthier Title?

Back 39

'to A for life, then to O's heirs'... O is still alive

the remainder is void and A has a life estate with O holding a reversion

Front 40

When is a remainder indefeasibly vested?

Back 40

When there is no condition attached to the future acquisition of the estate...

'To A for life, then to B'... B has an indefeasibly vested remainder

Front 41

To A for life, then to B... What happens if B predeceases A?

Back 41

B's indefeasibly vested remainder passed by will or intestate succession to his heirs

Front 42

When is a vested remainder subject to complete defeasance?

Back 42

When there is a condition subsequent attached...

To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C...

A has a life estate, B has a vested remainder subject to complete defeasance, C has a shifting executory interest, O has a reversion

Front 43

To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C... what happens if A dies and B is alive but only 20 years old?

Back 43

B gets the estate but must reach 25 for his heirs to collect... otherwise, C springs in and takes it!

Front 44

To A for life, and if B has reached the age of 25, to B... what happens if A dies before B reaches 25?

Back 44

O or O's heirs get the estate back, subject to B's springing executory interest

Front 45

What is a vested remainder subject to open?

Back 45

Where a remainder is vested in a group but the group may expand in the future

To A for life, then to B's children... A is alive. B has two children, C and D

C and D have vested remainders subject to open

Front 46

When does a class close for purposes of vested remainders subject to open?

Back 46

When any member of the class can demand possession...

To A for life, then to B's Children... B has two children C and D

The class closes when A or B dies because C or D can demand possession

Front 47

What is the womb rule for purposes of vested remainders subject to open?

Back 47

If A dies and B is pregnant, B's unborn baby is part of the class

Front 48

To A for life, then to B's Children... B has two children C and D- what happens if C dies before A?

Back 48

C's interest passes to his divisee or heir

Front 49

To A and her heirs, but if X happens, to B and his heirs... what is this?

Back 49

A has a fee simple subject to B's shifting executory interest

B has a shifting executory interest

X does not violate RaP if it is limited in duration

Front 50

To A, if X... what is this?

Back 50

O has a fee simple subject to A's springing executory interest

A has a springing exexutory interest

X does not violate RaP so long as we know if it is satisfied by A's death

Front 51

Defining RaP

Back 51

Any uncertainties about the estate must be figure out within 21 years of the death of a measuring life

Front 52

What type of future interests does RaP pertain to?

Back 52

Contingent Remainders

Executory Interests

Certain Vested Remainders subject to open

Front 53

What type of future interests does RaP NOT pertain to?

Back 53

Any future interest in O

Indefeasibly vested remainders

Vested remainders subject to complete defeasence

Front 54

Analyze... 'To A for life, then to such of A's children as live to attain the age of 30.' A is still alive

Back 54

A has a life estate

A's living children have a vested remainder subject to open

Any future children have contingent remainders

BUT- RaP applies because 21 years may pass before an as of yet unborn child reached 30... VOID

What's left: A has a life estate and O has a reversion

Front 55

Analyze... 'To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B and his heirs'

Back 55

A has a fee simple subject to a shifting executory interest

B has a shifting executory interest

BUT- RaP applies because more than 21 years may pass after A dies in which the land may end up being used for non farm purposes... VOID

What's left: A has a fee simple determinable and O has a possibility of reverter...strike out the entire conditional phrase

FSDPOR

Front 56

Analyze... 'To A and his heirs, but if the land ceases to be used for farm purposes, to B and his heirs'

Back 56

A has a fee simple subject to a shifting executory interest

B has a shifting executory interest

BUT- RaP applies because more than 21 years may pass after A dies in which the land may end up being used for non farm purposes... VOID

What's left: A has a fee simple absolute... strike out the entire conditional phrase

Front 57

What is the charity-to-charity exception of RaP?

Back 57

'To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA'

Both parties are charities... otherwise this would violate RaP

Front 58

How do you create a joint tenancy?

Back 58

FOUR UNITIES

1. time
2. title
3. identical interests
4. identical rights to possess the whole

Front 59

Do you need to include the words 'right of survivorship' to create a joint tenancy?

Back 59

Multistate: YES

Maryland: NO

Front 60

How is a straw man used?

Back 60

If you have a FSA and you want to convert it into a JT, you have to convey it to a straw man and then have the straw man convey it back to you and your partner so as to satisfy the four unities

NOT IN MD

Front 61

What happens if you destroy one of the four unities?

Back 61

You become tenants in common

BUT... if A and B are JTs and they decide together to convey party of their land to C... A and B remain JTs for their portion of the land and C becomes a tenant in common

Front 62

What is a tenancy by the entirety?

Back 62

ONLY allowed between a husband and wife... otherwise it will be seen as a joint tenancy with right of survivorship

BUT if it is a tenancy by the entirety, it cannot be broken unilaterally...

...so if you transfer your interest to someone else, they get nothing!

Front 63

If you have a tenancy in common divided up 70% to 30% ownership, does enjoyment of the property also get divided up?

Back 63

NO- you get to enjoy the whole!

If you are kept from doing so, this is wrongful ouster

Front 64

What are the rights of tenants in common regarding repairs and improvements?

Back 64

Repairs- all co-tenants are responsible for reasonable or necessary repairs and may seek contribution for such

improvements- NOTHING!

Front 65

What are the three types of partitions for purposes of severing co-owned property?

Back 65

1. Voluntary agreement

2. Partition in kind: physical division where you keep the land

3. Forced sale: it is impossible to keep the land so you sell it and divide the proceeds

Front 66

When does the SoF attach to leases?

Back 66

If they are for more than one year

Front 67

If land is leased with no mention of duration, but payment of rent is set at intervals, what type of tenancy is this?

Back 67

Periodic Tenancy by implication

Front 68

What happens if you have an oral agreement for a lease that is over a year?

Back 68

SoF is violated and this creates an implied periodic tenancy based on how rent is tendered

Front 69

How can you terminate a periodic tenancy?

Back 69

Notice equal to the period of the tenancy provision... if month-to-month, one month notice is required

Front 70

What happens if a lease ends and the person doesn't vacate the premises?

Back 70

If L accepts new rent, this is called a HOLDOVER and the new terms are implied periodic tenancy terms determined by how the new rent was accepted

Front 71

What does ending a periodic tenancy AT THE CONCLUSION OF A NATURAL LEASE PERIOD mean?

Back 71

If it is a month to month lease starting January 1, and you terminate on February 15, the lease will end on March 31

Front 72

How much notice do you need to give in order to terminate a tenancy at will?

Back 72

Either party can terminate at any time but a reasonable demand to vacate is usually required (one month)

Front 73

What is a tenancy at sufferance?

Back 73

The time between wrongful holdover and either eviction or creation of a new tenancy (like implied periodic tenancy)

Front 74

What duty does T have with respect to third parties?

Back 74

Keep the premises in reasonably good repair

T is liable for injuries sustained by third parties that T invited (irrespective of whether L promised to make all repairs... all this means is that indemnification is a later option)

Front 75

What is T's duty to repair?

Back 75

National- T must not commit waste and must maintain premises and make ordinary repair when the lease is silent

MD- The lease MUST specify who has the duty to repair in residential leases!

Front 76

What is the definition of a fixture?

Back 76

A once movable chattel that, by virtue of its annexation to realty, objectively shows intent to permanently improve the realty

Front 77

What should L NEVER DO if T is acting like a dick head?

Back 77

SELF HELP- self help is flatly outlawed and is punishable civilly and criminally

Front 78

What happens if T wrongfully vacates before his term of years is up on his lease?

Back 78

SIR

Surrender- treat T's abandonment as an implicit offer to surrender and accept that offer (in writing if the the unexpired term is greater than one year)

Ignore- ignore the abandonment and hold T responsible for the rent (minority of states)

Re-let- re-let the premises and hold T responsible for any deficiencies

Front 79

What happens if T's lease starts and there is still someone living there?

Back 79

L has failed to properly deliver the premises (ENGLISH RULE)...L has breached his duty and T can get damages

MD: T can terminate the lease and not pay rent if he so desired

Front 80

What is the implied covenant of quiet enjoyment and how can L breach it?

Back 80

T has a right to quiet use and enjoyment of the premises without interference from L (residential and commercial)

L breaches this duty by actual wrongful eviction or through constructive eviction

Front 81

How do you show constructive eviction?

Back 81

SiNG

Substantial Interference: a chronic problem like a leaky roof

Notice: T must notify L and L must fail to act meaningfully to fix the problem

Good bye: T must vacate the premises in a reasonable time after L fails to fix the problem

Front 82

What are L's duties regarding other tenants?

Back 82

L cannot allow nuisances on the premises and L must control the common areas

Front 83

What is the implied warranty of habitability?

Back 83

L will make the place habitable (heat, water, plumbing)

Front 84

What can T do if L breaches the implied warranty of habitability?

Back 84

Move: move out and end the lease

Repair and Deduct: take the cost of repair out of the rent

Reduce Rent (putting the withheld rent in escrow to show good faith)

Remain on the premises and seek damages

Front 85

Analyze...L leases Blackacre to T1. T1 assigns to T2. T2 assigns to T3. T3 engages in flagrant abuse to the premises

Back 85

T1... L can proceed against T1- privity of contract (T1 is secondarily liable for any damage done by T2 or T3)

T2... L has no claim against T2 unless T2 had taken on ALL obligations when he was assigned Blackacre

T3... L can proceed against T3 because they are in privity of estate

Front 86

What is the privity relationship between L and a subleesee?

Back 86

NONE- there is no privity!

Front 87

What duties does L have with regard to making a premises safe?

Back 87

Generally, none...

...BUT there are five exceptions (CLAPS)

Common Areas- like hallways and stairwells

Latent Defects- L must warn (not repair) of hidden defects that L has knowledge or reason to know of

Assumption of Repair- if L volunteers to repair, he must do so with reasonable care

Public Use- like museums and stuff

Short Term Furnished Dwellings- L is liable for any defect that harms T

Front 88

Analyze... A grants B a right of way across A's land, so that B can more easily reach his land.

Back 88

B has an easement appurtenant to B's dominant tenement.

A's land is the servient tenement

Front 89

What is an easement in gross?

Back 89

An easement that only involves one piece of land... the servient land is burdened but there is no dominant tenament

Examples... allowing Joe to fish on your land or allowing a billboard to be erected on your land

Front 90

Do easements run with the land?

Back 90

Appurtenant- passes automatically with the dominant land, regardless of whether it is even mentioned in the conveyance... but the easement will not pass with the servient estate if the owner is a BFP without notice of the easement

Gross- only passes if the easement is for a commercial purpose (like Starkist tuna fishing for bait on your lake)

Front 91

How do you create an affirmative easement?

Back 91

PING

Prescription- adverse possession

Implication- splitting your property in half

Necessity- selling a portion of your land that is landlocked

Grant- if the grant is for more than a year, it must be in writing (SoF)

Front 92

What are the elements of adverse possession?

Back 92

COAH

1. Continuous use for statutory period

2. Open/Notorious use... you can't use it in secret

3. Actual Use... you have to actually use it

4. Hostile Use... you can't have permission

Front 93

How can you terminate an easement?

Back 93

END CRAMP

1. Estoppel- if you tell the servient owner that you don't need the easement any more and he relies on that... ESTOPPEL

2. Necessity- if the necessity ends, so does the easement (unless done by express grant)

3. Destruction of the servient land

4. Condemnation- eminent domain

5. Release- the dominant owner releases the servient owner in a written release

6. Abandonment- there must be intent to never use the easement again (physical action)

7. Merger- if you end up buying both plots of land, the easement is terminated

8. Prescription- adverse possession

Front 94

What happens when you make an oral easement that may last for more than one year?

Back 94

The SoF invalidates it and it becomes a freely revocable license

Front 95

What is a profit holder?

Back 95

A profit holder may enter the servient land and take from it soil, or some substance from the soil (lumber, oil, minerals, etc...)

The same rules apply as with easements

Front 96

What is a restrictive covenant?

Back 96

A promise to refrain from doing something related to land (like a promise not to build for commercial purposes)

Front 97

How do you know if the problem is a covenant problem or an equitable servitude problem?

Back 97

By the relief sought...

$$$- if the plaintiff is seeking money damages, this is a covenant issue

Injunction- if the plaintiff is seeking an injunction, this is equitable servitude

Front 98

When will covenants run with the land?

Back 98

A promises B that A will not build for commercial purposes on A's property

1. Determine which land is burdened and which land is benefited (A is burdened and B is benefited)

2. Determine if the burden runs from A to A1 (WITHN)

3. Determine if the benefit runs from B to B1 (WITV)

Front 99

What are the elements for determining if a burden runs with the land for purposes of covenants?

Back 99

WITHN

1. Writing- the original promise MUST be in writing

2. Intent- the original parties must intend to have the covenant run (courts are generous here)

3. Touch/Concern- the promise must touch and concern the land (rather than the community at large)

4. Horizontal Privity- relationship between A and B (original parties)... must be in succession of estate (landlord/tenant, owner/seller, debtor/creditor)

5. Vertical Privity- non hostile nexus between A and A1 (only an issue if adverse possession is involved)

Front 100

What are the elements for determining if a benefit runs with the land for purposes of covenants?

Back 100

WITV

1. Writing- the original promise MUST be in writing

2. Intent- the original parties must intend to have the covenant run (courts are generous here)

3. Touch/Concern- the promise must touch and concern the land (rather than the community at large)

4. Vertical Privity- non hostile nexus between A and A1 (only an issue if adverse possession is involved)

Front 101

What is an equitable servitude?

Back 101

A promise THAT EQUITY will enforce against successors

Front 102

How do you create a binding equitable servitude?

Back 102

WITNES

1. Writing- the original promise MUST GENERALLY be in writing

2. Intent- the original parties must intend to have the covenant run (courts are generous here)

3. Touch/Concern- the promise must touch and concern the land (rather than the community at large)

4. Notice- successors must have notice of the promise

Front 103

When can an equitable servitude be implied rather than in a writing?

Back 103

Common Scheme Doctrine- subdividing your land into individual lots

this creates a reciprocal negative servitude to hold the person to a restrictive covenant

1. When the sales began, the subdivider must have had a general scheme of residential development which included the defendant's lot

2. Defendant had notice of these covenants or servitudes

Front 104

How do you establish notice?

Back 104

Actual

Imquiry

Record

Front 105

How can you get out of an equitable servitude?

Back 105

Changed Conditions- the entire area must have changed in a pervasive way... mere pockets of limited change don't cut it

Front 106

What are the limits to adverse possession regarding tacking and disabilities?

Back 106

Tacking- you can't tack on the years if you oust the former adverse possessor

Disabilities- adverse possession clock doesn't start if the owner has a disability... it starts after the disability is cured (but if the clock starts before the disability, you're cool)

Front 107

What is the process for conveying a piece of real estate?

Back 107

1. The land contract: this lasts up until step 2

2. The closing: the deed becomes the operative document

Front 108

What must be contained in the initial land contract?

Back 108

The document must be a Signed Writing (SoF)

The document must describe the land sufficiently

The document must state some sort of consideration

Front 109

What happens if the description in the land contract is not accurate?

Back 109

Specific performance with a pro-rata reduction in the purchase price (when there is less land than in the contract)

Front 110

When is the SoF excused for purposes of real estate purchases?

Back 110

Two of these three elements need to be met

B takes possession

B pays all or part of the purchase price

B makes substantial improvements

Front 111

When does the risk of loss shift from S to B?

Back 111

When the land contract is signed... this is equitable conversion. So if a fire burns down the house before closing- too bad so sad

Front 112

What promises are implied with every land contract?

Back 112

1. The seller promises to provide marketable title at closing (free from reasonable doubt as to threat of litigation)

2. Seller promises not to make any false statements of material fact

Front 113

What makes title unmarketable?

Back 113

1. Adverse Possession- if part of the title rests on AP, it is unmarketable (not in MD)

2. Encumbrances: no servitudes or mortgages... but you do have the right to satisfy an outstanding mortgage with the proceeds of the sale

3. Zoning Violations: title is unmarketable when the land violates a zoning ordinance (it subjects the land to litigation)

Front 114

What is the liability for a seller of land to a buyer?

Back 114

The seller is liable for failing to disclose latent material defects...

... general disclaimers of liability (like 'as is') mean absolutely nothing and S is still liable for fraud or failure to disclose

NOT IN MD: in Maryland, if you are buying a single family house, the seller must in writing, either disclose major defects or disclaim with something like 'as is'

Front 115

Is there an implied warranty of fitness or habitability when buying land?

Back 115

NO...

... but if you are buying a new home from a builder-vendor, then there IS an implied warranty of fitness and workmanlike construction

Front 116

What does the deed need to contain at closing?

Back 116

It must be in writing and signed by the grantor (in MD, it must be recorded)

It must have a description of the land (doesn't have to be perfect)

Delivery... either physically by hand or through the mail, an agent, or a messenger

Front 117

What happens if a person rejects a deed upon delivery?

Back 117

NO DEED- the seller still owns the land!

Front 118

How are deeds handled when conditions apply to it?

Back 118

Oral conditions (like O conveying a deed to B that is absolute on its face but then he says to B... 'Blackacre is yours only if you survive me')- VOID (provable in MD though)

Escrow- you CAN deliver the deed to an escrow agent though with instructions not to deliver the deed until certain conditions are met... once those conditions are met- title passes automatically

Front 119

What is a quitclaim?

Back 119

A crappy deed

It contains no covenants and the grantor doesn't even promise that he has the proper title to convey

Front 120

What is a general warranty deed?

Back 120

This is the BEST deed you can have!

It warrants against ALL defects in title (including those attributable to grantor's predecessor)

Front 121

What are the six covenants contained in a general warranty deed?

Back 121

1. Covenant of seisin- Grantor promises that he owns the property

2. Right to convey- Grantor promises that he has the power to transfer the property

3. No encumbrances- Grantor promises that there are no servitudes or liens on the land

4. Quiet Enjoyment- Grantor promises that grantee won't be disturbed in possession by third party lawful claims of title

5. Warranty- Grantor promises to defend grantee should there be any lawful claims of title by third parties

6. Further Assurances- Grantor promises to do whatever future acts are reasonably needed to perfect the title if it turns out not to be perfect

Front 122

What is a statutory special warranty deed?

Back 122

Some states have statutory deeds that make two promises

1. Grantor has not conveyed the land to anyone else

2. There are no encumbances (this does not include predecessors)

Front 123

What are the rules for bona fide purchasers when dealing with recording systems?

Back 123

NOTICE jurisdiction- If B records, B wins... regardless of whether or not A recorder before her

RACE NOTICE- B wins IF she records before A does

Front 124

What makes a person a bona fide purchaser?

Back 124

1. BFP buys the property for value

2. BFP has no notice that someone got there first

Front 125

Is Maryland a notice state or a race notice state?

Back 125

Race notice

Front 126

If A records prior to B taking the land, is B a BFP?

Back 126

NO- record notice!

Front 127

What is the shelter rule?

Back 127

If O conveys to A and B (BFP), B records first, and then B conveys to C (who knows about the O to A transaction)...

...C WINS! He steps in to B's shoes

Front 128

What is a wild deed?

Back 128

If O conveys to A but A doesn't record... and then A conveys to B (who records the A to B transaction)...

...if O conveys to C, C will win over B because the chain of title contains a missing grantor and C is a BFP

Front 129

Analyze... O coveys Blackacre to A but A does not record...

O dies, leaving Blackacre to B, who records

B gets a loan from the Bank with the mortgage as collateral

who gets Blackacre?

Back 129

The Bank- this is a mortgagee for value situation

It doesn't matter that B is not a BFP because the mortgagee IS...

NOTICE jdx- Bank wins

RACE NOTICE jdx- Bank wins if it records before A

Front 130

Are nonassignment clauses in leases valid?

Back 130

YES- and if you breach it by assigning anyway... L can terminate the lease, evict the assignee and sue you for damages

STRICTLY CONSTRUED

Front 131

If you have a periodic tenancy where you pay per week (on sunday), if you terminate the lease on wednesday, how much more rent do you owe?

Back 131

you owe for thursday- sunday of that week... PLUS an additional week (notice)

Front 132

Can you claim adverse possession by leasing someone else's land to a third party for the statutory time?

Back 132

YES- leasing the property is something that the normal owner would do

Front 133

If the property burns down between the land contract and the closing, can you get out of the deal?

Back 133

NO- risk of loss shifts upon signing the contract... if you don't pay the purchase price, you are in breach

Front 134

Does RaP attach to rights of first refusal covenants?

Back 134

YES

Front 135

What happens if you are a tenant in common with someone and you can't agree on how to use the land?

Back 135

Partition it through the court based on the percentage of ownership

or sell it and split the profits

Front 136

To A for life, then to B... if A refuses to pay taxes, what happens?

Back 136

A is liable for the taxes... if there is a tax sale, B's rights are cut off

Front 137

Analyze... A takes out a mortgage and then sells to B... if there is a deficiency after a foreclosure sale, who is liable for it?

Back 137

A will always be liable, either primarily and personally liable (no assignment) OR he will be secondarily liable (assignment)

B will be liable if he assumes the mortgage in the deed... in which case, the bank becomes a third party beneficiary and can sue A or B

Front 138

What rights do downstream land owners have to water flow?

Back 138

Natural Uses prevail over artificial uses... the upstream owner cannot substantially interfere with the riparian rights of the downstream user

Front 139

Analyze... To A, but if she does not have children, to B

Can A start cutting down all of the trees on the property?

Back 139

YES- this is a fee simple subject to total divestment

B would only have a right to seek enjoinment of this behavior if A had a life estate.

Front 140

If A leases to B and has in the lease a covenant to repair things... A sells to C, who refuses to repair things...

...is anyone liable for the cost of repairs?

Back 140

A and C are liable... while A and B are no longer in privity of estate, they are still in privity of contract

THERE MUST BE A NOVATION in order to release A from liability

Front 141

Analyze... A gets mortgage on Blackacre... A leases Blackacre to B... B installs an oven, which is financed by giving the company a security interest in it...

...A defaults on the mortgage

...B defaults on the payments of the oven

Who has what?

Back 141

The bank can foreclose on Blackacre but has no right to the oven

The company has a valid security interest in the oven and can take it back

Front 142

Analyze... Mortgage 1, Mortgage 2, Mortgage 3...

...Joe defaults on Mortgage 2...

...who gets what?

Back 142

Foreclosure... Mortgage 2 first, then 3, then 1... junior mortgages before senior mortgages

...if there is not enough, a deficiency judgment will hold Joe liable for the rest

Front 143

If you agree with your landlord that you will be allowed to remove all fixtures... does this really mean EVERYTHING?

Back 143

NO- a fixture is a chattel that has been so affixed to the land that it becomes part of the realty. Even if L and T agree that all fixtures can be removed, if a fixture is incorporated into the structure of the building, it is part of the realty and cannot be removed!

Front 144

If you have a land contract and you find out that there is a mortgage on the property, can you cancel the deal prior to closing?

Back 144

NO- marketable title has to be delivered BY THE CLOSING DATE... it doesn't matter if it is not marketable before then

Front 145

If you have an easement that starts getting old and needs repairs, do you have to fix it?

Back 145

YES- you have the right and the duty to fix your easements

Front 146

When is an easement by necessity created?

Back 146

When A sells some of his land to B and that land has no access to utilities or to the outside world but for an easement across A's remaining land

Front 147

Is a seller entitled to clear an encumbrance off the land using the proceeds from the sale at closing?

Back 147

YES

Front 148

If A executes a deed to B but B doesn't record it... and B then destroys it...

...what is the effect?

Back 148

B still has a valid conveyance! Once it is deeded, that's it. You can destroy it, eat it... whatever. it's still valid

Front 149

life tenancy

Back 149

1. Life tenants have all rights to possess the land
2. Rights to all rents
3. Can sell it (but rts still end when seller dies)
4. Not obliged to pay principal on mortgage, but obliged to pay interest
5. Must pay ordinary taxes
6. No duty to take long-term insurance on the land
7. responsibility to maintain but not improve

Front 150

WASTE

Back 150

Whenever you have more than one interest-holder in land, the party in possession may not waste the asset or so reduce the value of it that it will hurt the party that will ultimately take over the land.

Front 151

Harvesting natural resources (e.g. clearing timber) (does / does not) constitute waste

Back 151

does not, as long as it is consistent with the grantor’s intent.

Front 152

multiple contexts where waste is a potential topic -- the less likely the future interest is, the harder to make a case

Back 152

-life estate
-Holder of possibility of reverter versus holder of fee simple determinable
- Holder of right of entry versus holder of fee simple subject to a condition subsequent
- Holder of executory interest versus holder of fee simple subject to an executory interest
- Co-tenant out of possession versus co-tenant in possession
- Landlord versus tenant
- Mortgagee (lender) versus mortgagor (borrower, in possession)

Front 153

3 types concurrent estates

Back 153

tenancy in common, joint tenancy, tenancy by the entirety

Front 154

tenancy in common

Back 154

concurrent estate type -- no limit in number of shares, all shares need not be equal. If you see unequal shares, probably a tenancy in common. If parties are not married and acquire shares at different times, (esp if by inheritance) probably a TIC. Whenever there is ambiguity as to the form of concurrent ownership, common law presumption is that the property is held in a tenancy in common. fully alienable, devisable, and descendible.

Front 155

t/f a tenant in common has a right of inheritance at co-tenant's desth

Back 155

false

Front 156

joint tenancy is different than tenancy in common in that joint tenancy (is / is not ) descendible/devisable b/c there's a ____. Also, shares in a joint tenancy (must be / need not be) equal

Back 156

is not, survivorship interest, must be

Front 157

Joint tenancies are easily _______________________ and converted into a tenancy in common during the lifetime of the joint tenant.

Back 157

severable

Front 158

joint tenants (must / need not) get their interests at the same time

Back 158

must

Front 159

Four unities for joint tenancy

Back 159

1) Interest: Joint tenants must all have an equal share or interest in the property.
2) Possession: A joint tenancy requires that every joint tenant have an equal right to possess the property.
3) Time: All joint tenant must have received his interest at the same time as the other joint tenants.
4) Title: Each joint tenant must have received his interest in the same document of title as the other joint tenants.

Front 160

If decedent intended to create a joint tenancy but 1 of 4 unities are missing, what did he create?

Back 160

tenancy in common

Front 161

Posner's Three criteria of an efficient system of property rights:

Back 161

Remember 'Posner is a UTE'

1) Universality

2) Exclusivity

3) Transferability

Front 162

universality

Back 162

ideally, all resources should be owned, or ownable, by someone, except resources so plentiful that everybody can consume as much of them as he wants without reducing consumption by anyone else

EX: sunlight

Front 163

exclusivity

Back 163

you can exclude or not exclude anyone to your property

Front 164

transferability

Back 164

right to transfer our property to someone else

-donation
-sale

Front 165

conversion

Back 165

the taking of someone else's property and converting (transferring) it to yourself (making it your own)


1) intent to exercise
2) dominion & control
3) over the goods of another so as to
4) deprive the lawful owner of possession

*remedy= full value of the property

Front 166

4 requirements of a property right:

Back 166

1) capable of precise definition

2) capable of exclusive possession or control

3) alleged owner must have established a legitimate claim to exclusivity

4) claim of exclusivity

Front 167

5 theories for justification of property:

Back 167

*remember 'justify a SuNrOLL theory'

1) occupation theory
2) natural rights theory
3) labor theory
4) legal theory
5) social utility theory

Front 168

occupation theory

Back 168

right to property is to whom first seizes it

Front 169

natural rights theory

Back 169

property is a natural or innate right

Front 170

labor theory

Back 170

right to property is in the trouble that you put in in - how much did you work to get it

Front 171

legal theory

Back 171

property is whatever is recognized as such by law

Front 172

social utility theory

Back 172

-combines all theories

-property is an order of social progress

-private property must be regulated in order to preserve value

Front 173

common law of property

Back 173

a person owns everything from the center of the earth to the skies

Front 174

6 classes of property

Back 174

'Right Now Property 1 Is My Favorite '...(class of property)

1) immovables
2) movables (chattels)
3) real property
4) personal property
5) freeholds
6) non freeholds

Front 175

immovables

Back 175

land and those things that are permanently attached to it

Front 176

movables (chattels)

Back 176

often of temporary character and can be easily moved about

Front 177

real property

Back 177

land or rights to land

Front 178

personal property

Back 178

consists of chattels or rights to chattels

Front 179

freeholds

Back 179

those interests that endure the life of the holder or longer

Front 180

non-freeholds

Back 180

1) interests that endure for a term of yrs

2)interests that have a terminating point

Front 181

lost property

Back 181

property owner involuntarily parted with (neglect, carelessness) and does not know where the property is

(ex: a wristwatch found on floor of public place will likely be regarded as lost property)

Front 182

Finder of Lost Property

Back 182

-finder has the right to possess the property against all except the true owner

-the one who reduces it to his possession becomes its finder

-finder can bring an action for conversion, trespass, or replevin to enforce the right to possession against 3rd parties

Front 183

finding in public place

Back 183

finder becomes entitled to the right of possession

*shop owner never reduced the money to possession and therefore had no possessory interest - money to finder

Front 184

burried articles

Back 184

go to the land owner, not the finder

Front 185

mislaid property

Back 185

property that the owner intentionally placed but inadvertently left

Front 186

mislaid property

General Rule:

Back 186

-finder obtains NO claim of possession in this situation

-the owner of premises upon which the voluntarily placed property is found becomes a bailee of the property and must use reasonable care for its safekeeping until the return of the owner (involuntary bailment)

(reason is, the person who mislaid the property is likely to go back to where they left it)

Front 187

Abandoned Property

Back 187

Belongs to the Finder of property

property which the owner has VOLUNTARILY relinquished all ownership of without reference to any particular person or purpose

*it is necessary to show intent to give up both title and possession

Front 188

Rule of finding unclaimed (abandoned) property

Back 188

does not equal a claim - to have ownership - must demonstrate intent to reduce to possession

Front 189

treasure trove

Back 189

any gold or silver that is found hidden, and of which the owner is unknown.

Common Law:
-belonged to finder against everyone except true owner. The fact that the finder was a trespasser would not deprive him of his possessory rights


*NOT followed in most modern day jurisdictions, and so possession will be determined under the rules of either lost or mislaid property

Front 190

*

Back 190

property imbedded in the soil without characteristics of lost property deemed to be mislaid

Front 191

Bailment

(def)

Back 191

1) legal relationship b/t the owner and the possessor of a chattel

2) the delivery of personal property, usually under an agreement, when possession of property is transferred from a bailor to a bailee for the purposes agreed upon to be returned to the bailor or otherwise disposed of according to the terms of the agreement

3) delivery of personal property under agreement, either expressed or implied, for a purpose so that after the purpose is finished the property may be recovered

Front 192

3 kinds of Bailment:

Back 192

1) for the benefit of the Bailor

2) of benefit for BOTH Bailor and Bailee (Commercial)

3) benefit of the Bailee

Front 193

Bailment for the benefit of the Bailor:

Back 193

slight care required from the bailee b/c bailee is not getting anything

Front 194

Bailment for the benefit of BOTH the Bailor and Bailee (commercial)

Back 194

both parties benefit from bailment

care by Bailee is important b/c you are both getting benefit

use of Ordinary Care

Front 195

Bailment for the benefit of the Bailee

Back 195

great care must be taken by bailee

(ex: you borrow your neighbors car)

Front 196

Elements of a bailment:

Back 196

Remember, 'bailments 'BAND' elements together'

1) delivery of possession

2) agreement

3) breach

4) negligence

Front 197

Remedies for Bailment

Back 197

Remember, 'DiRT remedies'

replevin

trover

detinue

Front 198

replevin

Back 198

suit to reclaim the property

'I want my property back'

(recovery of illegally possessed property)

Front 199

trover

Back 199

to seek the value of loss

(in a case where the property is gone and irreclaimable)

'I don't want it back, I want the value'

Front 200

detinue

Back 200

someone had a right to your property (bailment), but now they don't want to give it back

(recovery of lawfully found property)

Front 201

fungible goods

(def)

Back 201

goods of like kind and quality held in common mass

Front 202

Bona Fide Purchaser

(def)

Back 202

a person, who in good faith, purchased property for value w/out notice of any defect in the seller's title to the property

Front 203

Bona Fide Purchaser will prevail against the true owner if he can prove all 4 elements:

Back 203

Remebmer, a bona fide purchaser 'Sees Good Value and Notices'

1) semblance

2) good faith

3) value

4) without notice

Front 204

Semblance of title (5 parts)

Back 204

1) equitable estoppel (common law estoppel)

2) statutory estoppel

3) by virtue of voidable title

4) recording statutes

5) mere legal title

(see p.10, outline)

Front 205

Good Faith

Back 205

you must buy in good faith;

must be reasonably clear that the seller has the right to sell

Front 206

Value

Back 206

bona fide purchaser must give value in exchange for transfer;

the amount doesn't really matter (consideration)

Front 207

Notice

(2 kinds):

Back 207

* Actual
-had no real notice that the seller was questionable

* Constructive (or statutory)
-must be a recording
-legal notice imparted by law, by statute, statutory filing

Front 208

Adverse Possession

Back 208

concept of a long and continuous possession of anothers property so that the end result is the title passes to the possessor

*statute of limitations must be met

Front 209

Elements of Adverse Possession:

Back 209

* Remember, adverse possession is 'Actually Visible ON Everyone Continuously'

1) Actual

2) Visible

3) Open and Notorious

4) Exclusive

5) Continuous

Front 210

Actual

Back 210

adverse possession must be taking place

Front 211

visible

Back 211

must be able to see someone infringing on your real property

Front 212

open and notorious

Back 212

the owner must have knowledge of the possession of his real property by another;

the general public would know

Front 213

exclusive

Back 213

there must be sole ownership

(no one else possesses/claims the land with you)

Front 214

continuous

Back 214

continuous for the statutory period

Front 215

Prescription

Back 215

-for personal property only

-obtain title to personal property by possession

-must believe or act as if the property is yours

-Prescription is Absolute Title (but in common law, not the case)

Front 216

Accession

Back 216

innocent improvement to the personal property of another

- the good faith improver is allowed to retain the finished product, paying only for the unimproved value

- the bad faith accessor loses everything!

Front 217

Accession

(general rule)

Back 217

when a party, acting in good faith and relying upon apparent lawful permission, takes property from another, and by expenditure of money and labor, transforms it into a much more valuable article, then the true owner is entitled to no more damages than the property's original value

Front 218

Donative Transfer (Gifts)

(def)

Back 218

a gift is a voluntary transfer of property by one to another without any consideration or compensation

*to be valid, a gift must be executed or actually made. A gratuitous promise to make a gift in the future is not binding

Front 219

Inro Vivos Gift

(def)

Back 219

among the living, made while still alive

Front 220

Intro Vivos Gift

(3 requirements):

Back 220

Remember, intro vivos gifts require 'Delivery Intending Acceptance'

1) Intent

2) Delivery (actual, constructive, symbolic)

3) Acceptance

Front 221

Donative Intent

(present voluntary transfer)

Back 221

intended to part with the title now (can retain portion of title)

Front 222

Actual Delivery

Back 222

actual delivery of a tangible gift
(hand over of tangible item - always sufficient)

*if property is intangible, it is impossible to have Actual Delivery

Front 223

Constructive Delivery

Back 223

constructive delivery of a tangible item representing an intangible

-when an item, b/c of its size, location, or subject matter is incapable of manual delivery, so an intangible is used

-a constructive gift of land and vehicles are sufficient w/ title and statutory required certification

Front 224

Symbolic Delivery

Back 224

symbolic delivery of a tangible item representing a tangible item
(generally NOT allowed)

Ex: keys for a car

Front 225

Acceptance of Intro Vivos Gift

Back 225

1) Donee must accept the gift to transfer ownership

2) Donor cannot force a gift on the donee

3) Donee may refuse to accept a gift by an affirmative act

4) Courts presume an acceptance wherever the gift would be to the benefit of the donee

Front 226

Gift Causa Mortis

(def)

Back 226

a gift given in expectation of imminent death

*if you die from something other than what you thought you were going to die from, the gift causa mortis does not count!

Front 227

Gift Causa Mortis

(elements)

Back 227

same as Intro Vivos Gift, except you also need:

-expectation of death, and
-death actually occurs

*revocable if death doesn't occur

Front 228

Gift Causa Mortis

Back 228

must be delivered in person

(delivery is required to prevent fraud)

Front 229

While physical delivery is usually the best form of delivery, it is not always practical

Back 229

a gift of a future interest (intangible), done with a constructive instrument (letter) is sufficient

*the delivery of the letters (show intent) satisfies the delivery requirement in this case

Front 230

where there is unequivocal proof that the decedent has done everything possible to effectuate delivery of a gift causa mortis, it will be upheld

Back 230

remember the case where she left a suicide note and an endorsed check on the table of an apartment she shared with that guy

Front 231

Difference between 'Title Reverting' and 'Title Passing'

Back 231

the basic distinction b/t the tenurial and allodial theories of escheat is that under the tenurial theory land reverts or returns to the original owner, whereas under the allodial theory land passes forward to a new owner

Front 232

Allodial

Back 232

describes a situation where real property (land, buildings & fixtures) is owned free and clear of any encumbrances

Front 233

escheat

Back 233

property escheats to the sovereign (usually the state)

*reverts to the state when someone dies intestate with no heirs

Front 234

in a Trust:

Back 234

Trustee (bank): holds the legal title

Beneficiaries: hold the equitable interest in the trust property

Front 235

conveyance

Back 235

term used to describe the different ways property can be transferred from one party to another

Front 236

Freehold Estates

('Presently Owned Land')

Back 236

a) Fee Simple

b) Fee Tail

c) Life Estate

Front 237

Non-Freehold Estates

('Leasehold Land')

Back 237

a) Tenancy for Years

b) Periodic Tenancy

c) Tenancy at Will

Front 238

Fee Simple

Back 238

a) Fee Simple Absolute
-most complete estate a person can hold

b) Fee Simple Defeasable
-a fee which can be lost

Front 239

Fee Tail

Back 239

successor to fee simple conditional - always inheritable

Front 240

Life Estate

Back 240

*Not inheritable; ends when you die

1) Created by deed or will
-life estate for the life of the grantee
-life estate for the life of one other than the grantee - called estate pur autre vie

2) Created by operation of law (legal life estates)
-fee tail after possibility of issue extinct
-dower
-curtsey
-estate during coverture

Front 241

Fee Simple Absolute

(words of limitation)

Back 241

'and his heirs'

*modern trend, do not need to use these words of limitation

*any conveyance that does not expressly limit the estate that is being conveyed will be presumed to convey a fee simple absolute

Front 242

Fee Simple Defeasible

Back 242

a possessory estate that 'may' last forever.

*it is subject to being terminated if the express condition occurs

ex: O->A, but if A sells alcohol on the land, then O has the right to re-enter and reclaim the land

Front 243

3 types of Fee Simple Defeasables:

Back 243

1) Fee Simple Determinable

2) Fee Simple subject to a condition subsequent

3) Fee Simple subject to an executory limitation

Front 244

In a fee simple defeasable, if the future interest is held by the grantor the fee simple defeasable will be either:

Back 244

- Fee Simple Determinable, or

-Fee Simple Subject to Condition Subsequent

Front 245

In a fee simple defeasable, if the future interests is held by a 3rd party, there is only one possibility:

Back 245

Fee Simple subject to an Executory Limitation

Front 246

Fee Simple Determinable

Back 246

When the limitation occurs (e.g., the selling of alcohol) it AUTOMATICALLY reverts back to the reverter (in this case, the grantor);

*no action needed.

Front 247

Fee Simple subject to Condition Subsequent

Back 247

When the limitation occurs, the grantor has the OPTION TO TERMINATE

*in order to have a fee on condition subsequent, you must have words of re-entry (if not, it will be a fee determinable)

*the future interest is called a right of re-entry

*the future interest is NOT automatic

*you must actually re-enter (by physically or filing suit)
-failing to do so, the present interest continues

ex: O->A, but if A sells alcohol on the land, then O has the right to re-enter and reclaim the land

Front 248

Fee Simple subject to an Executory Limitation

Back 248

O-> A, but if A sells alcohol on the land, then to B

*TERMINATES AUTOMATICALLY upon the occurrence of the express condition subsequent!

*because a party other than the grantor holds the future interest, the possessory estate is a fee simple subject to an executory limitation, and the future interest is an executory interest.

Front 249

2 types of Executory Interests:

Back 249

1) Shifting Executory Interest

2) Springing Executory Interest

Front 250

Shifting Executory Interests:

Back 250

if the right to possession is being taken from a 3rd party


*ELEMENTS:

i) Grantee to Grantee
ii) Goes from the grantor to grantee and then to another grantee.

Front 251

Springing Executory Interests:

Back 251

if the right to possession is being taken from the grantor

*ELEMENTS:

i) Occurs at some point in the future
ii) From Grantor to a Grantee back to the Grantor and then to another Grantee

Front 252

O->A, but if A sells alcohol on the land, then to B and his heirs

Back 252

A holds a fee simple defeasible, and the future interest is in a 3rd party, so A holds a fee simple subject to an executory limitation.

Is B's interests a shifting or springing executory interest?
(from whom is B taking the right to possession - the grantor or a 3rd party?)

-Here, B is taking the right to possession from A, a 3rd party. Therefore, B holds a shifting executory interest.

* The full state of the title in this example is: A holds a fee simple subject to an executory limitation, and B holds a shifting executory interest in fee simple.

Front 253

O->A for as long as the Golden Gate Bridge stands

Back 253

A holds a fee simple determinable

O holds a possibility of reverter in fee simple

Front 254

O->A, but if A sells alcohol on the land, then O has the right to re-enter and re-take the land

Back 254

A holds a fee simple subject to a condition subsequent

O holds a right of entry in fee simple

Front 255

O->A as long as he farms the land organically, then to B

Back 255

A holds a fee simple subject to an executory limitation

B holds a shifting executory interest in fee simple

Front 256

O->A, but if she uses pesticides on the land, then to B

Back 256

A holds a fee simple subject to an executory limitation

B holds a shifting executory interest in fee simple

Front 257

Finite Estates:

Back 257

1) life estate

2) fee tail

3) term of years

*finite= they must end (as opposed to infinite)

Front 258

Life Estate

Back 258

lasts for the duration of the grantee's life

*most common finite estate!

Front 259

Life Estate

Back 259

a grantee may transfer his life estate inter vivos.

If a life tenant transfers his or her interest, the grantee/transferee holds a life estate PUR AUTRE VIE: a life estate measured by the life of another (i.e., measured by the life of the original life tenant).

*while A is still alive, B's life estate pur autre vie is transferable, inheritable and decisable, but upon A's death the life estate pur autre vie immediately expires - even if B is still alive.

Front 260

Fee Tail

Back 260

A fee tail is a series of potential life estates.

A fee tail is a life estate to the immediate grantee, and upon his death, a life estate to his or her children, and upon each child's death, a life estate to that child's children, and so on until there are no 'children' to take the fee tail.

*The words of limitation necessary to create a fee tail are 'and the heirs of his/her body.'

Ex: O->A and the heirs of her body, then to B and the heirs of his body

Front 261

Term of Years

Back 261

express language of the conveyance establishes a finite duration which is calculable on the day the interest is created - the end date must be capable of being determined on the first day the interest becomes possessory

Ex: O->A for 5 yrs
O->A from Jan 1, 2006 until Dec 31, 2006
O->A for 180 days starting today

Front 262

If the grantor holds the future interest following a life estate, a fee tail, or a term of years, the future interest is called a:

Back 262

reversion

Front 263

If a third party (someone other that the grantor) holds the future interest following a finite estate, it is called a:

Back 263

remainder

Front 264

Analytically, once you determine the possessory estate is a finite estate, then ask:

Back 264

'Who takes the future interest?'

Front 265

O->A for life, then to B and her heirs as long as she does not smoke, but if she starts smoking, then O has the right to re-enter and reclaim the property

Back 265

A has a life estate;

B has a remainder in fee simple subject to a condition subsequent, and

O has a right of entry/power of termination in fee simple

Front 266

O->A and the heirs of her body, then to B and her heirs, but if she grows marijuana on the land, then to C and her heirs

Back 266

A has a fee tail,

B has a remainder in fee simple subject to an executory limitation, and

C has a shifting executory interest in fee simple

Front 267

O->A and the heirs of her body, then to O and her heirs

Back 267

A has a fee tail

O has a reversion in fee simple

Front 268

O->A for ten years, then to B and her heirs as long as she remains married to C, then C and her heirs

Back 268

A has a term of years estate

B has a remainder in fee simple subject to an executory limitation

C has a shifting executory interest in fee simple

Front 269

Just as there are two types of executory interests (shifting & springing), there are two types of remainders:

Back 269

1) vested
2) contingent


*once you determine that a future interest is a remainder, you must determine whether it is vested or contingent.

A remainder is contingent unless it qualifies as vested.

Front 270

A remainder is vested if the remainderman (the party who holds the remainder) is:

Back 270

a) born and

b) Identifiable (i.e., you can identify the party by his or her personal name), and

c) there is no express condition precedent, in the same clause creating the remainder or the preceding clause. (A condition precedent is one which typically must be satisfied before the remainderman can take actual possession.)

*The remainder must satisfy all three requirements or it is a contingent remainder

Front 271

O->A for life, then to B and his heirs if he gets married

Back 271

A holds a Life Estate

B holds a contingent remainder in fee simple.
-------------------------------------

Is the remainder vested or contingent?

B is born and ascertainable (identifiable), but there is an express condition in the same clause creating the remainder.

Is it a condition precedent or a condition subsequent?

To B and his heirs 'if he gets married.'

The logical assumption is that at the time of the conveyance, B is not married yet.

B gets the possessory interest (the right to take actual possession) if, and only if, he gets married.

That express condition must occur BEFORE B's right can become possessory.

It is a condition precedent - so B holds a contingent remainder.

Front 272

O->A for life, then to B and her heirs as long as she farms the land organically.

Back 272

A holds a Life Estate.

B holds a vested remainder in fee simple determinable.

O holds a possible of reverter in fee simple
--------------------------------------

Is the remainder vested or contingent?

Notice there is an express condition in the same clause as the clause creating the remainder, but the issue is whether the condition is a condition precedent or a condition subsequent.

If the condition is a condition precedent, B will hold a contingent remainder in fee simple absolute;

If the condition is a condition subsequent, B will hold a Vested remainder in fee simple determinable.

The express condition, 'as long as she farms the land organically,' applies to her use of the land which inherently applies AFTER she takes actual possession- after her interest becomes possessory.

It is a condition subsequent;

B holds a vested remainder in fee simple determinable.

Front 273

O->A for life, then to B and her heirs if B graduates from law school

Back 273

A has a life estate

B has a contingent remainder in fee simple

O has a reversion in fee simple

*if the express condition precedent is not satisfied either prior to or at the moment the finite estate ends (A's life estate), the contingent remainder is destroyed by operation of law under the common law rule of destructibility of contingent remainders.

*In sum, if B fails to graduate from law school before A's life estate ends, the moment A's life estate ends B's contingent remainder is destroyed, and O's reversion becomes possessory. O would hold the property in fee simple absolute.

*if B graduates from lawschool before A's life estate ends, then the express condition precedent has been satisfied, B is born, and he is ascertainable (identifiable). Therefore, the remainder vests the moment B graduates and he would have a vested remainder in fee simple.

Front 274

*

Back 274

NOTICE remainders should be analyzed not only in light of the facts at the time the conveyance was created, but also in light of subsequent factual developments - all the way up to the point in time when the analysis is being performed. As long as the remainder vests BEFORE OR AT THE MOMENT the preceding finite estate ends (assuming the remainder is in fee simple), the default reversion in the grantor is extinguished.

Front 275

O->A for life, then to B and her heirs if she graduates from law school, but if she fails to graduate from law school then to C and his heirs.

Back 275

A has a life estate

B has a contingent remainder in fee simple

C has an alternative contingent remainder in fee simple

O holds a reversion in fee simple

Front 276

Alternative Contingent Remainder

Back 276

arises where the conveyance sets forth two contingent remainders, with the second expressly contingent on the first failing to vest.

*see above example

Front 277

The above example can also be stated as:

O->A for life, then to B and her heirs if B graduates from law school, OTHERWISE to C and his heirs.

Back 277

the word 'otherwise' serves the same function as the espress clause in the first conveyance stating that the alternative remainder is contingent upon the first remainder not meeting its express condition precedent.

*Watch for either form of phrasing alternative contingent remainders.

Front 278

Hierarchy of Estates:

Back 278

a) fee simple
b) fee tail
c) life estate
d) leasehold estate

Front 279

O->A for life, then to B and her heirs

Back 279

A has a life estate

B has a vested remainder in fee simple absolute

Front 280

Rule Against Perpetuities

(def)

Back 280

the future interest in question must vest, if at all, within the lives in being at the creation of the interest plus 21 yrs, or the interest is void from the moment of its attempted creation.

Front 281

Remember that you only have to worry about the Rule against Perpetuities if you see one of the three future interests subject to the Rule:

Back 281

-contingent remainders
-executory interests, and/or
-vested remainders subject to open

Front 282

Example of a scenario that violates the Rule Against Perpetuities:

O->A for life, then to A's first child to reach age 25 and his or her heirs.

*Assume A has two children, B, age 23, and C, age 20.

Back 282

A has a life estate

A's first child to reach age 25 has a contingent remainder in fee simple

O has a reversion in fee simple.


The contingent remainder at issue is to A's first child to reach age 25. CREATE! Whom do we create? We want to create someone who is eligible to claim the property under the terms of the conveyance so create a new child for A: child X is born to A.

We now have a life in being who was not alive at the time of the creation of the interest.

What do we do next?
-KILL!

Kill whom?
-All of the people who were alive at the time of the creation of the interest: A, B, C, and everybody else in the world.

Then what?
-That takes care of the lives in being, but we still have to take care of the rest of the time period. COUNT!

Count 21 years.

How old is child X at the end of the Rule's time period?
-21 years old.

Is it conveivable that X will live another four years, thereby becoming A's first child to reach age 25 and be entitle to claim the property?
-Y

Front 283

*

Back 283

If the future interest violates the Rule against Perpetuities, strike the whole clause containing the future interest and restate the title.

Here, the original conveyance stated, 'To A for life, then to A's first child to reach age 25 and his or her heirs.'

Striking the whole clause which contains the contingent remainder, the conveyance would read, 'To A for life.'

After applying the Rule against Perpetuities, the state of the title is A has a life estate, and O has a reversion in fee simple.

Front 284

O->A for life, then to B and her heirs if B reaches age 25

*assume B is age 23

Back 284

A has a life estate

B has a contingent remainder in fee simple

O has a (default) reversion in fee simple
--------------------------------------

Because B's remainder is contingent, it is subject to the Rule against Perpetuities.

Apply the 'create, kill, and count' approach.

Can you create someone who will be eligible to claim the property?
-No.

The condition is tied to B.

B is the only person who is eligible to satisfy the condition.

*If you cannot create someone who would be eligible to satisfy the condition, then you cannot create a scenario which violates the Rule and the interest must be valid.

*If the condition is expressly tied to a named person who is alive, as opposed to a generically-described person, the interest will NOT violate the Rule against Perpetuities.

Front 285

O-> A for life, then to O's first grandchild and his or her heirs.

*Assume O has three children, but no grandchildren

Back 285

A has a life estate

O's first grandchild has a contingent remainder in fee simple (contingent because he or she is not born and ascertainable), and

O has a reversion in fee simple.
--------------------------------------

If this conveyance is by inter vivos deed, is the contingent remainder valid?

Again, the first step is to create a new person, and our goal is to violate the Rule so create as far back in the process as possible.

Create a new child from O, child X.

Next, kill all the people who were alive at the time of the inter vivos conveyance: O, A, and O's 3 children.

Then count 21 years.

Is it possible that X will have a child thereafter?
-Yes.

Because that child will be O's first grandchild, the remainder will vest upon that child's birth- but we have created a scenario there that birth was delayed until after the lives in being plus 21 years.

*Accordingly, the contingent remainder violates the Rule against Perpetuities and is invalid.

Front 286

The Rule in Shelley's Case applies if:

Back 286

1) the same document
2) conveys a life estate to a grantee and
3) a remainder to that grantee's heirs

-THEN-

4) the conveyance to the grantee's heirs is read as a conveyance to the grantee

Front 287

O->A for life, then to A's heirs

Back 287

Rule in Shelly's Case applies!

It would become:

O->A for life, then to A

A has a life estate

A also has a vested remainder in fee simple absolute

Front 288

The Doctrine of Worthier Title

Back 288

prevents a grantor from conveying a life estate to a grantee and a future interest (a remainder or an executory interest) to the grantor's heirs.

If the grantor attempts such an inter vivos conveyance, the future interest to the grantor's heirs is read instead as a reversionary interest to the grantor.

Front 289

O to A for life, then to O's heirs

Back 289

The Doctrine of Worthier Title appplies!

It would become:

O->A for life, then to O

A has a life estate

O has a reversion in fee simple absolute

Front 290

The Doctrine of Worthier Title applies if:

Back 290

1) the same inter vivos conveyance
2) conveys an inherently limited estate to a grantee and
3) a remainder or an executory interest to the grantor's heirs,

-THEN-

4) the conveyance to the grantor's heirs is read as a conveyance to the grantor

Front 291

3 forms of concurrent ownership (Co-tenancy)

Back 291

1) Tenants in common
2) Joint Tenancy w/ right of survivorship
3) Tenancy by the entirety

Front 292

Tenants in Common

Back 292

- 2 or more persons share ownership of property, often as the result of an intestate succession

- Conceived as owning fraction interests which may be equal or unequal

EX: A,B,C,D may own a one-fourth interest

*A may acquire the interests of B & C, so that he owns a three-fourths interest and D one-fourth

Front 293

Joint Tenancy

Back 293

Estate held by 2 or more people

-at the exact same time and same amount held together

-has the right of survivorship

-Under Common Law, requires all 4 unities

Front 294

4 Unities are:

Back 294

1) Unity of Time
-interest vested at the same time, same instruments

2) Unity of Title
-Interest derived from the same source or grantor

3) Unity of Interest
-Interest must be equal and undivided

4) Unity of Possession
-Each party must have equal possession rights

Front 295

Survivorship

Back 295

A & B own black acre together:

When A dies, B owns it ALL

Front 296

Any act which severs the joint tenancy destroys survivorship

Back 296

a) agreement to sever
b) transfer of interest
c) partition
d) conduct indicating a tenancy in common

Front 297

joint tenancy -- murder

Back 297

in some jurisdictions, murder destroys right of survivorship, but maintains interest in property (severs so that becomes tic); in others, reated as though predeceased vic, so vic's estate takes wrondoer's share

Front 298

What if one joint tenant conveys a two year lease of her interest. What happens after the two years?

Back 298

in some jurisdiction, joint tenancy revives; in others, they are TIC

Front 299

In states that treat mortgages as a kind of lien, when one joint tenant takes out a mortgage on his interest in the property, the mortgage___ a joint tenancy

Back 299

does not sever

Front 300

In states that treat mortgages as a kind of a grant of title from the borrower to the lender, when one joint tenant takes out a mortgage on his interest in the property, the mortgage ______________ the joint tenancy.

Back 300

severs

Front 301

Does a mortgage sever a joint tenancy?

Back 301

In states that treat mortgages as a grant of title, yes; in those that treat it like a lien, no.

Front 302

T/F With tenancy in common, a part owner can only use his percentage of the property

Back 302

False. Equal right to possess or use the property (unity of possession) is required

Front 303

3 ways out of a tenancy by the entirety

Back 303

joint sale, divorce, death

Front 304

With tenancy by the entireties, generally, one tenant (one spouse) may not mortgage, lease, or transfer his interest without the other spouse _____________________.

Back 304

agreeing (transaction invalid)

Front 305

If there is ambiguity, most states presume that property owned by spouses NOT a

Back 305

tenancy by the entireties

Front 306

Every tenant has a right to possess and use _______________________, no matter what his undivided share in the property. There is absolute equality in rights of possession.

Back 306

the entire property

Front 307

Must a concurrent tenant in residence pay rent to nonresident tenants? What if he owns 1 percent and other joint tenant owns 99% and he's using the whole property?

Back 307

No, doesn't matter (unity of possession). Tenant in 100% possession must pay operating costs

Front 308

resident joint tenants generally don't have to pay rent to nonresidents. Exceptions:

Back 308

1) ouster; 2) party agmt; 3) minority rule requires fair market payments to out-of-possession tenant on demand

Front 309

Third-party rents are divided up

Back 309

proportional to the division of ownership.

Front 310

profits and rents for joint tenants are divided up ___

Back 310

proportionately to ownership share

Front 311

Operating expenses are divided along the lines of each tenant’s _______________________, except in cases of exclusive possession by one tenant.

Back 311

share of ownership

Front 312

Does a co-tenant have a right to reimbursement from other co-tenants for necessary repairs? _____________.

Back 312

No, but They can get that amount credited to them when the property is sold or divided by partition.

Front 313

One co-tenant (can cannot) require another co-tenant to help pay or reimburse for any improvements.

Back 313

cannot

Front 314

Cora and Daniel own a house as tenants in common, with a 50 percent share each. The kitchen is functional but not new, and Cora decides to spend $20,000 to put in a brand new, gourmet-style kitchen. What must Daniel contribute toward the kitchen project?

Back 314

nothing - but may get a credit at partition or sale

Front 315

Tenants in common and joint tenants have an ________________ to partition.

Back 315

absolute right

Front 316

two types of partition

Back 316

by sale, physical (in kind)

Front 317

A court may order a partition in kind (i.e., a physical partition) except when:

Back 317

impractical or not in interest of parties. Won't partition a house in kind

Front 318

can parties agree not to seek partition?

Back 318

generally not.

Front 319

court will uphold an agreement by co-tenants not to sue for partition only if it is ______________________________________ that the parties agreed to it and the bar to partition only lasts a ___________________.

Back 319

absolutely clear, reasonable time

Front 320

adverse possession - -if one tenant has 100% possession, can he adversely possess?

Back 320

generally not. Maybe if the co-tenant in exclusive possession gives absolutely clear and unequivocal notice of his exclusive claim of title.

Front 321

Co-tenants have ____ general implied fiduciary duty to each other.

Back 321

no. limited exception where one party is sneakily trying to get property in fee simple

Front 322

Pete and Mina own a farm as tenants in common, each with a 50% interest. Mina cannot make her share of the property tax payment, and the county seizes the property for back taxes and holds a tax sale. Pete buys a fee simple in the property at the sale for just $10,000. What is Pete now legally obliged to do?

Back 322

sell half of property to Mina; limited exception where a fiduciary duty exists

Front 323

T/F Tenants in common have an absolute right to partition

Back 323

true

Front 324

two types executory interests

Back 324

1)shifting -Possessory interest goes from grantee to another (non-grantor) party who holds an executory interest;
and 2) springing --Possessory interest goes from grantee back to grantor and then to another (non-grantor) party who holds an executory interest.

Front 325

what is the difference betw a vested and contingent remainder?

Back 325

a vested remainder shifts to the remainderman imm after life interest; contingent only shifts/springs if a condition is met

Front 326

The Rule against perpetuities applies only to (vested / contingent ) remainders

Back 326

contingent

Front 327

To know if a remainder is vested have to know 2 things:

Back 327

whether it will go to someone else for absolute sure; and who the property is going to;

Front 328

Vested Remainder Subject to Open

Back 328

a vested remainder in a class gift when we know some of the people in the class, but the full membership of the class is unknown.

Front 329

A vested remainder subject to open is subject to the ___ because there is a possibility that the class will not close

Back 329

Rule against Perpetuities.

Front 330

The Rule of Convenience

Back 330

This is a rule of interpretation/construction- when it’s unclear what the grantor intended, if it’s possible that the grantor wanted the gift to divest and the class to close upon his death, then that’s how the gift will be construed.

Front 331

Hilda devises to “to my grandchildren immediately upon my death.” She has two grandchildren at the time of her death, Juan and Penelope. How will the class be treated under the Rule of Convenience? It will be treated as _________________. The class will just be the two grandchildren.

Back 331

as a closed class bc of the word immediately

Front 332

Doctrine of Worthier Title:

Back 332

With intervivos gifts, presumption that the grantor intended possession to return to him and not to shift to his heirs even when the grant reads that way.

Front 333

Lewis conveys Blackacre “to Thomas for life, then to my heirs”
After application of __, the grant reads to Thomas for life; Lewis or his estate has a reversion interest in Blackacre.

Back 333

Doctrine of Worthier Title

Front 334

Before you start analyzing interests under RAP, ___and decide if RAP applies

Back 334

classify them

Front 335

T/F an executory interest is one that goes to another party other than the grantor after a life estate

Back 335

False -- this is the contingent interest of remainderman where current possessor may violate a condition (Fee Simple Subject to an Executory Interest)

Front 336

T/F A remainder is contingent if the remainderman is not named

Back 336

Dana seems to say True. I thought that when "Suzy's first child" was born, e.g., the remainder would vest at the birth. Review.

Front 337

T/F A transfers land "to B, provided B does not move out of state, otherwise to C." C's interest is a contingent remainder.

Back 337

False -- contingent remainders apply only to life estates. This is a shifting executory interest

Front 338

freehold

Back 338

to be freehold, an estate must possess the characteristics of (1) immobility—in the sense that the property must be either land, or some interest derived from or affixed to land—and (2) indeterminate duration.

Front 339

Mountain Brow Lodge No. 82, Order of Odd Fellows v. Toscano

Back 339

re fee simple subject to condition subsequent --restraints on alienation

dicta: validity of restrictions on land use in deeds ok, even though they hamper alienability. However, if carried out to its conclusion, the restrictions on how the land is used may indeed become a restriction on who uses the land. Some courts will not enforce a restiction that materially affects marketability adversely . They will also consider a condition’s duration, nature or efficacy .

Front 340

fee simple subject to condition subsequent --ways out?

Back 340

1) ct finds that condition could be such a restraint on alienability that void;
2) adverse possession (but some courts find that clock doesn't start until rt of re-entry asserted)

Front 341

4 kinds of tenancies

Back 341

for a term, periodic, at will, at sufferance
PTWS (punt tenant who sucks)

Front 342

for a term tenancy

Back 342

clear stmt of intent beforehand, and if > 1 yr, in writing

Front 343

Periodic tenancy:

Back 343

Defined by the period by which rent is to be paid. Intent to form such a tenancy may be express or implied, such as through payment and acceptance of rent on a regular basis.

Front 344

tenancy at will

Back 344

continues as long as both parties want -- hard to distinguish from periodic without express intent. preference for periodic if truly ambiguous.

Front 345

Tenancy at sufferance / holdover tenancy:

Back 345

o The period for the tenancy is over, but the tenant does not leave. If the tenant remains on the property, he is a tenant at sufferance. Landlord can evict as illegal, or hold him over to a new term, making him a holdover tenant

Front 346

Tony and Fran agree that Fran will occupy an apartment owned by Tony. They have no written agreement. Tony tells Fran that he may need the premises back at any time, but until then she can stay. What kind of tenancy has Tony and Fran created?

Back 346

tenancy at will

Front 347

termination of periodic tenancy

Back 347

term renews each rent period until proper notice, notice needs to be given at least one full period before, and is effective the last day of the period following the period when notice is given

Front 348

tenancy at term -- termination

Back 348

at end of term, no notice rqd unless lease says so, may be earlier if the tenant surrenders the apartment or the landlord or tenant breaches his contract or his duties.

Front 349

Marcia rents Tanya an apartment, and they both expressly agree to a “month to month lease” whereby Tanya pays $500 on the first of every month. Marcia decides she wants to rent the apartment to someone else. On April 15, she tells Tanya she is terminating the lease and that Tanya must vacate.When is Tanya legally obliged to vacate?

Back 349

May 31

Front 350

Tenancy at will terminates how and when?

Back 350

imm upon declaration of either party, but tenant must be given time to vacate if at landlord will. If landlord dies, tenancy ends b/c this is a personal tenancy and does not carry over to the estate

Front 351

Tenancy at sufferance -- when does it end? What term/rent if holdover?

Back 351

When tenant is evicted, tenant leaves, or landlord holds the tenant over to a new term -. This is a kind of punishment b/c tenant now legally bound to a new term. most jurisdictions -- length of new term <= 1 yr. some jurisdictions require rent to stay same; others let rent increase up to 2x

Front 352

What type of tenancy must be in writing?

Back 352

Tenancy for a term of more than one year

Front 353

When in doubt about where a landlord or tenant duty rests, go with the___

Back 353

landlord and assume the tenant has a right against the landlord

Front 354

tenant duties

Back 354

pay rent UNLESS a) destruction by another party; b) landlord evicts partially or totally; c) landlord substantially breaches his duty by violating either the implied covenant of quiet enjoyment, or the implied warranty of habitability.

Front 355

Implied duty of quiet enjoyment and constructive eviction, and 3 CL rqmts.

Back 355

A landlord has duties to make premises substantially usable for their intended purposes. If the premises became substantially unusable for their intended purposes, the landlord constructively evicted the tenant and the rental obligation is cancelled. 1) all/almost all premises are substantially unusuable; 2) tenant must inform and landlord must refuse to cure/remedy; 3) has to leave in a reasonable period (can't stay after complaining)

Front 356

T/F Implied duty of quiet enjoyment and constructive eviction applies to commercial tenancy

Back 356

T

Front 357

The heat has gone out during December in Chicago. Katie calls the landlord daily. He does nothing. She buys blankets and a space heater and puts up with it until Feb, when she sues for constructive eviction. Outcome?

Back 357

She likely fails b/c she didn't move out soon enough, undercutting her argument that the apt is uninhabiltable

Front 358

Implied warranty of habitability (“IWH”) --most jurisdiction recognize landlords responsibility to comply -- stronger/more flexible than ___

Back 358

Implied duty of quiet enjoyment

Front 359

Implied warranty of habitability (“IWH”)

Back 359

o A non-waivable obligation on part of the landlord to meet the housing code and other basic requirements of decent conditions for residential leaseholds.
o in most jurisdictions it only applies to multi-family residential buildings. It does not apply to commercial leases.
o Many statutory schemes allow tenants to withhold partial or full rent and pay into an escrow account when they claim violations of IWH. Tenants also may do repairs themselves and withhold rent up to the cost of the repair.
o Tenant must inform landlord of problems and give time to cure

Front 360

Rita rents an apartment in a big building for $500 a month from Sue. Sue tells her the conditions in the apartment are just terrible – no heat, broken door, mold, and says this is why the rent is so low. Rita tells Sue that it's ok, she needs the lowest rent possible, but then Rita starts cslling Sue and asking her to fix the problems, and finally withholds her rent. Sue sues for the missing rent. What is the likely outcome?

Back 360

Rita prevails -- Implied warranty of habitability (“IWH”) is a non-waivable landlord obligation in most jurisdictions

Front 361

Tenants’ Duties: Contractual Duty to Repair

Back 361

At old common law, the tenants did have some duty to do repairs.
 The current trend is that contracts are read not to put obligations on the tenants to do repairs, and even if there is some language to that effect, it is read narrowly.

Front 362

Bob rents Nina an apartment in a large building; the lease states that the tenant is obliged to repair the hot water heater and furnace at his or her own expense if they break. Nina signs the lease. The hot water heater and oil furnace break. If the IWH applies in this jurisdiction, must Nina undertake the repairs at her own expense?

Back 362

likely not b/c IWH includes obligation for hot water and heat and overrides lease language

Front 363

Tenant’s Duties: Avoid Waste

Back 363

Even in the absence of specific terms in the lease, tenants have a background overriding duty not to waste the premises.
Tenants have a duty not to commit permissive or voluntary waste.

Front 364

Tenant’s Duties: Ameliorative Waste

Back 364

Usually not allowed to improve things without the landlord’s permission, although the current trend is to allow tenants to make ameliorative improvements unless the lease language specifically prohibits it.

Front 365

Landlord’s Remedy for Breach

Back 365

If a tenant who is supposed to be there for a year skips town after the first month, what can the landlord do? Theoretically, under common law, the tenant is still under obligation to pay rent for the lease term. Landlord has duty to mitigate under maj. rule

Front 366

Landlord’s Remedy for Breach -- duty to mitigate

Back 366

Majority rule: Landlord must make reasonable efforts to rent the property, treating it just as he would other vacant stock
A landlord need not accept an unsuitable tenant in order to mitigate -- for example, a non-credit-worthy tenant. The landlord usu has the burden of proving his efforts of reasonable mitigation. If landlord is unable to find a tenant at the same rent, tenant reponsible for difference.
Minority rule:
no duty to mitigate -- especially true with commercial leases.

Front 367

T/F if landlord doesn't make a reasonable mitigation effort, he may get nothing from tenant

Back 367

true

Front 368

landlord's duties

Back 368

1) physical possession; 2) quiet enjoyment (suitable premises for the intended purpose of the lease, including any specific promises of repairs made by the landlord); 3) for residential leases, “habitable” premises; 4) common areas 5) nuisance-like behavior created by another tenant. 6) mitigate external conditions? (Under common law, the landlord is generally not responsible for external conditions beyond their control. There has been a movement to hold landlords responsible
when they could do something to mitigate the problem.)

Front 369

landlord duties as to external conditions

Back 369

Under common law, the landlord is generally not responsible for external conditions beyond their control. There has been a movement to hold landlords responsible
when they could do something to mitigate the problem -- e.g. install safety features (lights, locks) if property is in an unsafe area

Front 370

If a tenant is refinishing furniture in the common courtyard of an apt complex. Does the landlord have responsibility if the activities are creating strong fumes

Back 370

yes, landlord is responsible for common areas. Even if tenant is in his apt, landlord responsible for nuisance like behavior of tenants.

Front 371

landlord responsibility for neighbor noise. What level?

Back 371

reasonable -- may depend on neighborhood, population

Front 372

Retaliatory Eviction

Back 372

When landlords get complaints, the landlord cannot retaliate by evicting that tenant, even for nonpayment of rent. There is a presumption of retaliation that landlords must overcome in most jurisdictions if they evict soon after a tenant makes a complaint.

Front 373

There is a _____that landlords must overcome in most jurisdictions if they evict soon after a tenant makes a complaint.

Back 373

presumption of retaliation

Front 374

What are a tenant's duties with respect to invitees, licensees, and reasonably foreseeable trespassers?

Back 374

Tenants have a reasonable duty of care

Front 375

When are landlords liable under tort for rental property defects?

Back 375

1. Landlords are responsible in negligence for injuries caused to tenants in non-common areas from latent defects for which the landlord has not warned tenant.
2. Landlords are responsible when they voluntarily agree to do repairs otherwise not required, and they do the repairs badly.
3. Landlords are responsible for negligence that results in injuries in common areas
4. There is some trend that even patent (visible, obvious) defects, particularly if they violate housing codes, can give rise to tort liability.

Front 376

Joe rents a house from Greg. Joe tells Greg that the front step is wobbly. Greg agrees to repair it but does so poorly and the step is still wobbly. Joe knows the step is still wobbly, and nonetheless trips on it the next day, hurting himself. Is Greg liable to Joe?

Back 376

Yes, Although the wobbly step was not a latent defect, Greg is responsible because he undertook a repair and he negligently did it.

Front 377

What is an assignment?

Back 377

An assignment is the complete transfer of the tenant’s interest in the leasehold (what is a "complete interest" in the leasehold? just a right to re-enter?)

Front 378

What is a sublease or sublet?

Back 378

Any transfer that is less than the tenant's entire interest (as opposed to assignment)

Front 379

Assignment and Subletting - Responsibility for Rent

Back 379

In an assignment, the landlord can go after either the original tenant or the assignee (this is assignment + delegation in K law? can the assignee sue the landlord or the tenant or both?).
Under a sub-lease, the sublesee is not responsible directly to the landlord. The landlord can only go after the original tenant.

Front 380

Assignment and Subletting - Landlord's Permission

Back 380

The old common law rule was that a landlord did not have to give permission to a tenant to assign or sublease the premises for any reason.
The modern rule is that a landlord may deny permission to assign/sublease only for a "commercially reasonable" reason (which does not include simply being to the landlord's economic benefit

Front 381

If I want out of my 2 year lease after 2 months, can I assign the remainder of the lease to someon else?

Back 381

Apparently. The example on p 32 indicates that an "entire interest" can be tranferred for less than the entire lease term.

Front 382

Ned wants to assign his rights in leasehold to Peter, who will pay him $1,000 for the assignment, because the rent on the remaining months of the lease is well below the current market rate. The landlord denies permission to the proposed assignment because he would like to rent the apartment to a brand new tenant on a new lease at the higher, current-market rate. Under the majority rule, is the landlord entitled to deny permission?

Back 382

No -- commercially reasonable does not include landlord's economic benefit

Front 383

Fair Housing and discrimination

Back 383

Most statutes only apply to multi-family residential housing.
The protected classes include race, religion, color, national origin, sex, disability, and familial status. Not sexual orientation.

Front 384

T/F Under Fair Housing and discrimination, landlords can require senior-only or religious housing.

Back 384

True

Front 385

Landlords cannot discriminate on the basis of disability. This means...

Back 385

Landlords must make reasonable accommodations for the disabled, including accommodation to rules

Front 386

Adverse Possession

Back 386

Adverse possession creates legal title on the basis of unlawful possession. The adverse possessor owns the property, and it is as if he had owned the property since the first entry onto the land.

Front 387

Adverse Possession -- qs to ask

Back 387

1. When was the actual entry and was possession continuous?
2) Was possession long enough? threshold q (Statutory Period--usu 20 yrs. Ejectment attempts start the clock over)
3. Was it non-permissive? (Hostility)
4. Was it open enough? (Open and Notorious)
5. Was it like what an ordinary owner would do? (Claim of title)
6. Was it exclusive, i.e., not shared with the public generally or with the actual owner?

Front 388

Liam built a small house on Cora’s land in 1980. Twelve years later, after years of demanding that Liam leave, Cora has the police eject Liam from the land and removes the house. Liam imm returns and rebuilds a house and remains on Cora’s land for another ten years. The statutory period for adverse possession is 20 years. Does Liam possibly have title to all or part of Cora’s land by virtue of adverse possession?

Back 388

no -- ejectment restarts clock

Front 389

adverse possession -- hostility rqmt

Back 389

all jurisdictions: Possession must be non-permissive
some jurisdictions: Subjective intent of adverse possessor is relevant
some jurisdictions: adverse possessor must think that he owns the land

Front 390

adverse possession -- hostility rqmt--can permission be implied?

Back 390

Yes?? (lecturer refers to implied permission )

Front 391

adverse possession--Open and Notorious Possession

Back 391

Possession has to be of a kind that is open, such that (i) we want to reward it, and (ii) it is reasonable to assume that a reasonable true owner would have noticed someone was on the land and done something about it.

Front 392

adverse possession --Exclusive Possession rqmt

Back 392

Adverse possessor cannot share the property with the true owner. exception: easements by prescription

Front 393

adverse possession --Continuous Possession

Back 393

Coming onto the land once in a while is not continuous enough.
Seasonal Use: Courts have said that continuous possession of a seasonal property is enough.
subsequent adverse possessors can tack (add) their periods of adverse possession if those adverse possessors were connected or in privity

Front 394

Martha builds a house on Blackacre without permission from its true owner Betty. She stays ten years. Then she "sells" her rights to the house to her friend Dora for $100. Dora moves in and stays ten years. The statutory period for adverse possession is 20 years. Has Dora met the continuity requirement? If so why?

Back 394

yes! subsequent adverse possessors can tack (add) their periods of adverse possession if those adverse possessors were connected or in privity

Front 395

tacking

Back 395

ubsequent adverse possessors can tack (add) their periods of adverse possession if those adverse possessors were connected or in privity

Front 396

adverse possession --Disability and Future Interests:

Back 396

The adverse possession clock does not run against a disabled legal owner or the holder of a future possessory interest.

Front 397

Ricardo devises Blackacre to Tony for life, then to Yolanda. Gail enters Blackacre without permission and stays 20 years. What does Gail own, assuming she meets all the requirements of adverse possession?

Back 397

life interest for Tony's life

Front 398

t/f adverse possession does not run against remainder interest.

Back 398

t

Front 399

adverse possession--Scope of Possession

Back 399

-Usually the scope follows the legal boundaries of the parcel.
-Easements are typically confined to where the crossing actually happened.

Front 400

LAND SALE CONTRACTS--Statute of Frauds

Back 400

1) Contracts for the sale of land or for leases over a year have to be in writing, but can be in more than one document
2) must be signed by both parties

Front 401

LAND SALE CONTRACTS--Statute of Frauds-- what are essential items that must be in the K?

Back 401

price; property description (but need not be complete legal description); some description

Front 402

SOF exceptions

Back 402

1) partial performance; 2) detrimental reliance (not a complete list)
( In K's learned that Real estate deals are like other service deals in that a signed writing will satisfy the Statute of Frauds. But, unlike other service deals, part performance of a real estate contract can satisfy the Statute of Frauds if any two of the following three elements are met:
1. partial payment
2. possession
3. improvements
By my own research, not all states say 2/3 )

Front 403

SOF exceptions- detrimental reliance

Back 403

If one party was lead to believe there was a contract and detrimentally relied on it, a court may say even an oral land contract may be adequate.

Front 404

Willie and Rita orally agree that Willie will sell Rita a bare lot on which Rita plans to build a new house for herself and her family. Rita hands Willie a check, but after Rita has left, he just rips it up, having changed his mind about the sale, but doesn't tell Rita. In the meantime, Rita sells her current house. Willie refuses to go ahead with the sale, arguing there was no written contract. Will Rita prevail?

Back 404

Yes, she detrimentally relied

Front 405

Jim orally agrees to sell Blackacre to Kimberly for $10,000. Kimberly then sells her own home and buys furniture for the house on Blackacre and hires contractors to do work there, and tells Jim she is doing so. Kimberly sends Jim the $10,000, and then moves into the house on Blackacre. Two weeks later, Jim returns the money and demands that Kimberly vacate Blackacre. Who owns Blackacre? Why?

Back 405

Kimberly -- detrimentally relied AND performance

also under K lecture rules: possession + improvement + payment

Front 406

Implied Duties in a Sales Contracts

Back 406

Every land sale contract carries implied duties. These include the implied duty of good faith and marketable title. NOT IMPLIED: that the closing date an essential term. If it IS, must be explicit

Front 407

Marketable Title

Back 407

A seller must prove or warrant that he has good title to the property, which means either there is record title, or adverse possession title. Also that any easements, attached debts, and title defects have been disclosed. .

Front 408

Ron contracts to sell Blackacre to Peter. Blackacre contains a house that is set back from the street by only three feet. When the house was built (and still now) the local zoning code required a minimum setback of eight feet. Can Ron deliver marketable title?

Back 408

probably not if zoning violation is substantial.

Front 409

Breach by Buyer - Refusal to Buy - remedies

Back 409

1) diff betw K price and property value at time of breach; 2) undo K (recission); 3) specific performance -- ct WILL order if seller wants and is feasible (e.g. buyer can pay)

Front 410

Breach by Seller - Refusal to Sell- remedies

Back 410

1) If the seller refuses to sell for reasons in her control (i.e., not in good faith), the buyer can recover difference between current price and K price;
2) If the seller breaches but acted in good faith, the buyer can recover only out of pocket expenses;
3) A buyer can also seek rescission.
4) The buyer can also seek specific performance in the form of an ordered sale with a price adjustment for any defects in title. Specific performance generally will be ordered if feasible (and likely won't be if breach in good faith)

Front 411

Land transfer -- risk of loss. The buyer bears the risk of harm as soon as_____. This is called the ...

Back 411

the purchase and sales contract is signed He is the owner even if he doesn't have legal possession yet (i.e. b4 closing).(majority rule). This is called the Doctrine of Equitable Conversion
Minority rule: risk of loss is on the seller.
-In some jurisdictions that follow the traditional rule that the risk of loss is on the buyer, nonetheless if the seller is in possession of the property, the seller is held responsible.

Front 412

Death before Closing

Back 412

This does not eliminate the contract. Land sale contracts are not personal. The question becomes which heir will get the contract proceeds or get the right to the property.

Front 413

Seller Death before Closing

Back 413

proceeds are designated as personal property unless there is an anti-ademption statute, in which case they are treated as real property for purposes of inheritance/devise (ademption is the common law rule that a specific gift in a will that is not in the estate at death fails. If the testator willed the property to someone in an ademption stat, the gift would fail, and the proceeds would go to the estate. If in an anti-ademption state, the person given the property would get the proceeds. If intestate, it doesn't really matter.

Front 414

Land transfer -- risk of loss. If buyer bears risk of loss at signing, but seller has insurance still in effect, any proceeds from policy ___

Back 414

go to the buyer

Front 415

T/F a real estate sale survives a party's death

Back 415

True, unless ...ademption jurisdiction and there's a will;

Front 416

buyer death b4 closing

Back 416

When the buyer dies, the property goes to the real property heir. That party can compel transfer and if the property is not fully paid for, the buyer’s personal property assets cover it.

Front 417

mortgage

Back 417

A secured interest in a real property. Some states conceptualize it as a lien and some states conceptualize it as a title.

Front 418

How is a mortgage different from a note?

Back 418

The mortgage is money lent based on a property. The person borrowing the money also has to sign a note. They are completely different. A note is an unsecured personal obligation to make repayment, unconnected from the underlying real property.

Front 419

purchase-money mortgage

Back 419

secured interest taken in exchange for financing the

Front 420

judgment lien

Back 420

secured interest on real property in satisfaction of a court judgment

Front 421

Is there a property interest in a mortgage?

Back 421

In lien states, the mortgage is thought of another debt obligation. In title states, a mortgage is actually thought of as ownership by the bank or the lender.

Front 422

What happens to a joint tenancy when one joint tenant takes out a mortgage on a jointly held property in lien state ?

Back 422

JT is still intact b/c mortgage is not a property interest

Front 423

What happens to a joint tenancy when one joint tenant takes out a mortgage on a jointly held property in title state ?

Back 423

it severs the JT and converts it to a tenancy in common, b/c the mortgage is a property interest

Front 424

Alternatives to Mortgage - Deed of Trust

Back 424

Operates like a mortgage -using a trustee.

Front 425

Alternatives to Mortgage -Installment Land Contract

Back 425

The seller is also financing the purchase of property. buyer pays in installments -- framed as a K, q as to whether should be given protections of mortgage law. Most jurisdictions just treat them as Ks as to their terms (no implied duties, etc) unless there is gross inequity

Front 426

Mortgagor Right: Equitable rt of Redemption

Back 426

A common-law right that says the borrower who is in default has the right up until the actual foreclosure date to pay the amount due and stop the foreclosure.

Front 427

Mortgagor Right: Statutory rt of Redemption

Back 427

statutory right of the borrower to buy back the property (from the buyer) as a matter of right after the foreclosure sale -- usu within 6 months to a yr. Right can be waived once borrower in default, but not ahead of time.

Front 428

Can the right of Statutory Redemption be waived by borrower?

Back 428

Right can be waived once borrower in default, but not ahead of time.

Front 429

Transfer of Mortgages

Back 429

Sometimes properties can be transferred with the mortgage to a new buyer. There is a legal distinction between assumption of mortgage and subject to a mortgage.

assumption mortgage -- both buyer and seller are responsible
subject to-- seller is responsible, but buyer can be foreclosed upon

If unclear which agmt exists, presumption is "subj to"

Front 430

Greg takes out a $500,000 mortgage on Blackacre from Chase Bank in order to buy Blackacre. He then sells Blackacre to Judy using a written contract that provides that Judy “buys along with any prior mortgages.” Who is legally responsible for making mortgage payments on the mortgage held by Chase Bank? Why? What happens if the payments are not made to Chase Bank?

Back 430

The grant is ambiguous, so the land is presumed to be taken “subject to” the mortgage. Judy takes Blackacre subject to the mortgage and is not responsible to make payments.
However, Chase Bank can foreclose on the property if the mortgage payments are not made.

Front 431

Due-on-Sale Clauses

Back 431

When there is a sale or transfer of a mortgage, the whole mortgage is due and must be paid off. If there's a due-and-sale clause, the mortgage cannot be transferred with the property.

Front 432

Transfer by Lender

Back 432

Lenders transfer mortgages all the time. The basic rule is that a transfer of a mortgage without a note is considered void. The transfer of a note without the mortgage is allowed, but only if the original borrower is notified. Until that notification happens, the borrower’s only payment obligation is to the original lender

Front 433

Pre-foreclosure

Back 433

o The period between default and foreclosure.
o In states that treat mortgages as liens, the bank or lender has no right to possess the property during that pre-foreclosure period.
o In states that treat property as title, the lender can come into the property and possess it. Most lenders don’t want to do that because then they become responsible for it. Instead, the property, lender would likely try to get a "receiver" appointed. ( The receiver will be appointed to take possession of the mortgaged property, pay the expenses of the receivership, insurance, and taxes, account for the surplus proceeds, and turn them over to the court for application on the mortgage debt or, if not required for satisfaction thereof, to the mortgagor.)

Front 434

Greg takes out a $500,000 mortgage with a due-on-sale clause on Blackacre from Chase Bank in order to buy Blackacre. He then sells Blackacre to Judy using a written contract that provides that Judy “buys along with any prior mortgages.” Who is legally responsible for making mortgage payments on the mortgage held by Chase Bank?

Back 434

B/c of the due-and-sale clause, Chase would require Greg to pay off the entire mortgage once they learned of the transfer

Front 435

foreclosure

Back 435

forced sale of property to satisfy the secured debt

Front 436

How is money disbursed after a foreclosure sale?

Back 436

The mortgage and other secured debts are paid off first. If there is any money left over, it goes to the original borrower. Typically there is not additional money.

Front 437

What if the foreclosure produces less money than the outstanding principal on the secured debt?

Back 437

Majority rule: borrowers under the note that they signed are responsible for deficiency judgments.
Minority rule: deficiency judgments are prohibited or restricted.

Front 438

Fanny takes out a $100,000 mortgage from BankAmerica to buy Greenacre. She misses a number of payments, and Greenacre is then foreclosed upon and sold for $50,000. The outstanding principal on the mortgage or debt at that time is $95,000. What happens to the proceeds? What does Fanny owe?

Back 438

it all goes to BankAmerica

Front 439

Foreclosure Proceeds as among Secured Creditors: main rule: The ___ mortgages take priority over the ___ mortgages in payout. Seniority can be determined by.... There's a big exception to this rule: ______ come first, even if they are not otherwise senior.

Back 439

senior, junior (a second mortgage would be with a jr. creditor) , first in time = sr, or by subordination agmt, Purchase money mortgages

Front 440

Bob bought Blackacre in 2005 with a purchase money mortgage for $300,000 given by YaleBank. In 2006, Bob then took out a second mortgage for $75,000 on Blackacre from CentralBank to help finance his small business. In 2007, Bob took out another mortgage for $100,000 on Blackacre from CitiBank to help pay his grandson's college tuition. In 2008, Bob defaulted and in January 2009, the house was foreclosedupon and sold for $150,000. At that time, there was $295,000 principal remaining on the mortgage to YaleBank. Who gets the $150,000 in proceeds?

What if there was only $100,000 remaining on the YaleBank mortgage. Who would take the remaining $50,000 in proceeds?

Back 440

Yalebank -- purchase money mortgage (and also first in time)

Centralbank for the remaining 50K -- next in time

Front 441

Defenses to Foreclosure

Back 441

Fraud
Duress
Violation of usury laws (limit interest rates)
Procedural

Front 442

frequent problem in asserting a fraud defense to foreclosure

Back 442

Fraud is not a defense against a holder in due course, and sense most mortgages are sold multiple times.... (plus hard to prove)

Front 443

Doctrine of Equitable Conversion

Back 443

Once the purchase and sales contract is signed, the buyer is the owner even though he or she does not have legal possession yet. If there is harm to the property (e.g., flood, fire), that is the buyer’s risk of loss.

Front 444

Under the doctrine of equitable conversion followed in a majority of jurisdictions, the ________ bears the risk of loss if property is destroyed after the contract for sale is entered into and before the closing

Back 444

buyer

Front 445

Which of the following allows the mortgagor to redeem the mortgaged property after a foreclosure sale:
equitable right of redemption or
statutory right of redemption

Back 445

statutory

Front 446

Which of the following allows the mortgagor to pay the balance due prior to a foreclosure sale:
equitable right of redemption or
statutory right of redemption

Back 446

equitable

Front 447

TRUE OR FALSE. The borrower is never responsible for paying any deficiency between the outstanding debt and the foreclosure sale price.

Back 447

false -- majority rule requires

Front 448

Of a Purchase money mortgagee
and The first mortgage to record which mortgagee is the first to receive foreclosure proceeds?

Back 448

purchase money always gets priority

Front 449

Fixtures in Foreclosure

Back 449

A fixture is something affixed in a house.
For readily-removable fixtures, the purchase money mortgage holder sells and takes
For fixtures not readily removed, senior mortgage holders take over the junior (a first-in-time rule as opposed to priority for purchase money mortgagees)

Front 450

Deed-in-Lieu-of-Foreclosure

Back 450

foreclosure alternative. Borrower transfers his ownership rights to the lender in return for being released from the mortgage and the note. There is no foreclosure. The advantage is that it is a lot quicker and there is no risk of deficiency judgment. Also credit rating impact eliminated.

Front 451

Transfer of title -- DELIVERY AND RECORDING OF DEEDS-- requirements

Back 451

1) delivery and 2)acceptance.
Delivery does not require physical delivery; it is based on the intent.

Front 452

If the grantor gives the deed to his own agent (e.g. atty) with instructions to deliver at some future time, will the deed be considered delivered?

Back 452

no

Front 453

Fred gives an independent escrow estate agent instructions to transfer a deed to Blackacre to his cousin Vinnie in two months “unless I change my mind.” Has there been a valid delivery of a deed? Why or why not?

Back 453

no -- If the grantor retains an absolute right to recover the deed, no valid delivery exists because transfer of title was not clearly intended.

Front 454

When the grantor keeps the deed, is intent to transfer presumed?

Back 454

No, parol evidence is admissible to establish whether the grantor had the intent to make a present transfer of the property interest.

Front 455

Transfer of a deed to the grantee creates a presumption that ____. Parol evidence is admissible to show that ____ (e.g., the grantor only intended to create a mortgage not to effect an outright transfer).

Back 455

he grantor intended to make a present transfer of the property interest, the grantor lacks such intent

Front 456

when the grantor transferred a deed to the grantee subject to an oral condition (i.e., a condition that does not appear in the deed), parol evidence is (admissible/not admissible) and the condition (is / is not) enforceable

Back 456

not admissible, not enforceable.

Front 457

deed agent transfer stuff is complicated-- study some more if time

Back 457

a

Front 458

If the grantor gives the deed to an independent agent, with directions to deliver to someone under some conditions, what are some factors to help determine whether there has been a valid delivery of the deed?

Back 458

clear, irrevocable, binding instructions; whether the grantor retains an absolute right to recover the deed; whether the language indicates that grantor intended to make a present gift of a future property interest (e.g. for Mary to have on her 21st birthday) --if so, the grantor cannot later void the gift.

If a K requires transfer to a 3rd party (e.g. an escrow agent) and conditions the release, the grantor can't get the deed back absent a failure of the specified conditions. If the agent delivers the deed prior to the condition, title remains with the seller.

Front 459

Valid deed delivery and acceptance -- Bona Fide Purchaser Exception to requirements

Back 459

A bona fide purchaser is one who acquires title in good faith. If it turns out that they do not have good deed because the grantor or someone else gave them something fraudulently or negligently, nonetheless they are treated as having a valid deed because they acquired it in good faith as a bona fide purchaser.

Front 460

Gertrude agrees to sell Blackacre to Rita for $100,000 and allows Rita to take possession but never delivers a deed. Rita then agrees to sell Blackacre to Juan to $120,000, and Juan takes possession. Can Gertrude reclaim possession of Blackacre from Juan on the ground that there was no valid delivery of a deed to Rita? Why or why not?

Back 460

No -- Bona Fide Purchaser Exception to delivery requirements for a valid deed

Front 461

What must be in a deed?

Back 461

1) A valid deed must identify the parties
2) it must include the grantor's signature, since he's the one being bound;
3) description of property (need not be legal. Extrinsic (parol) evidence can be brought in to identify the boundaries;
4) There has to be some language of transfer.

Front 462

Tony transfers a deed to Yohan. The deed is signed by Tony and lists Yohan as the grantee. The deed refers simply to “all of the land.” It includes no further description of the subject of the grant. Is the deed valid?

Back 462

no -- not enough description of the land, too vague

Front 463

Does transfer of a deed need consideration

Back 463

No -- can be a gift

Front 464

+RECORDING DEEDS AND RECORDING ACTS-What does it means to record a deed?

Back 464

Go to county office and do so

Front 465

+RECORDING DEEDS AND RECORDING ACTS - how are deed records organized

Back 465

can be organized by address/tract # or by grantor or grantee

Front 466

+RECORDING DEEDS AND RECORDING ACTS -What is a chain of title?

Back 466

a record of past title transfers, tracing back in time (can be impt if a question of valid title)

Front 467

+RECORDING DEEDS AND RECORDING ACTS -What is a wild deed?

Back 467

transfer out of the chain of title

Front 468

Arnie conveys land to Yolanda. Yolanda conveys to Stan. Stan conveys to Gina. Gina's chain of title is...

Back 468

Arnie to Yolanda to Stan to Gina

Front 469

Arnie conveys Blackacre to Yolanda. Arnie conveys to Ursula. Yolanda conveys to Stan. Stan conveys to Gina. Which is the conveyance outside Gina's chain of title?

Back 469

Arnie's conveyance to Ursula. move backwards to find first out of chain -- sometimes impt-- subsequent buyer may not have notice of these transactions

Front 470

Common Law Priorities in the Absence of Any Recording Statute (or where a deed is not recorded)
The default rule in conflicts over title is:

Back 470

first in time is first in right

Front 471

Paula sells her property five times in five days -- first to Pete, then Todd, then Ursula, then Ian, then Ollie.
Who has title to the property at common law?

Back 471

Pete -- first in time is first in right

Front 472

State recording statutes establish ___ among conflicting claims to land and promote ____

Back 472

priorities, certainty of title.

Front 473

T/F first in time is first in right applies with all stare recording statutes

Back 473

False -- not necessarily

Front 474

What kinds of transfers are not covered by state recording statutes?

Back 474

gifts, inheritance, adverse possession. They only protect people who acquire real property for value. Others are covered by common law rules.

Front 475

What is notice under recording statutes?

Back 475

Usu, recording of the deed is presumed to give notice. Limited exception: if there was a defect in the deed or the way it was transferred, it may be deemed to not give adequate notice. Additionally, records may not be the end of the inquiry--special circs may give "inquiry notice," e.g. red flags that should have prompted potential taker to ask more questions to ensure a clear deed.

Front 476

Inquiry notice

Back 476

- If there are certain kinds of attributes to the property or certain kinds of situations, then maybe the subsequent taker of the property should have been on inquiry notice and should have known enough to ask some questions. E.g. References in a recorded deed to unrecorded instruments of transfer, or physical marks on the land that suggests someone else is there and thinks he owns it

Front 477

To effect a valid transfer of title, a deed must generally be _________ and _________.

Back 477

delivered, accepted

Front 478

T/F a valid deed must contain the signature of both the grantor and grantee.

Back 478

False, just the grantor

Front 479

T/F a valid deed must contain the legal description of the property

Back 479

False, just a description with sufficient specificity

Front 480

Regarding the issue of notice with respect to state recording acts, do physical marks on the land which suggest someone else may be living on it provide notice of prior conveyance of the property?

Back 480

yes, inquiry notice

Front 481

Regarding the issue of notice with respect to state recording acts, does a reference in a recorded instrument to an unrecorded instrument provide notice of prior conveyance of the property?

Back 481

yes, inquiry notice

Front 482

Regarding the issue of notice with respect to state recording acts, does a deed not in the buyer's chain of title provide notice of prior conveyance of the property?

Back 482

no this is a wild deed (but there may be some form of "inquiry notice" if the deed is referred to in a recorded instrument)

Front 483

Types of recording statutes and their main features

Back 483

1) Notice Statutes- Many jurisdictions (good title if buys without notice -- including inquiry notice--of a previous conveyance. notice is not actual notice - more about whether you should have known about it b/c you made adequate efforts to inquire)
2) Race Statutes- Few Jurisdictions (first to the courthouse wins, applies even where party has notice of an unrecorded conveyance. Easy to implement, but policy issues in that it could encourage bad conduct);
3) Race-Notice Statute (must both 1) record first and 2) show that you didn't have notice of an unrecorded prior transaction to have good title.

Front 484

If a recording statute includes language such as “first to record” and does not include language such as “good faith” or “without notice” it is a

Back 484

race statute

Front 485

If a recording statutes says “without notice” or “in good faith,” with nothing about being first to record, it is...

Back 485

a notice statute

Front 486

A recording statutes which includes language in the statute referring to the obligation to record first, but then some limitation that says “without notice” or “in good faith” is a

Back 486

Race-notice statute

Front 487

On June 1, Ben conveys Blackacre to Rona, who does not record. On July 1, Ben conveys Blackacre to Tom for $100,000. Tom is ignorant of the prior conveyance by Ben. On July 15 Rona records her deed. On July 20, Tom records his deed.
In a race jurisdiction, who prevails?
In a notice jurisdiction?
In a race-notice jurisdiction?

Back 487

Race: Rona over Tom
Notice: Tom over Rona b/c acquired without notice of a prior conveyance (a punishment to Rona for not filing timely?)
Race-notice: Rona over Tom

Front 488

On January 15, Hector conveys Blackacre to Jason, who fails to record. On February 1, Hector conveys to Ginnie for $20,000. Before paying the $20,000, Ginnie is told by a neighbor of Hector: “You know, Hector already sold that same property – that’s why he gave you such a good price. You bought nothing!” Ginnie immediately records.In a race jurisdiction, who prevails?
In a notice jurisdiction?
In a race-notice jurisdiction?

Back 488

Race: Ginnie
Notice: Jason
Race-Notice: Jason

Front 489

Blackacre is located in a state that has a statute providing, “No interest is valid unless duly first recorded in good faith.” On January 1, Kiki sold Blackacre to Wanda for $100,000. Wanda did not record. On January 5, Kiki transferred Blackacre to Ursula for $50,000. Ursula did not know of the previous transfer to Wanda. Wanda then recorded.
What kind of statute?
Who owns Blackacre?

Back 489

race notice
Wanda, no notice and records first

Front 490

On February 1, Rita transfers Blackacre to Dina for $50,000. On February 16, Rita transfers Blackacre to her son Peter as a gift. Peter does not know of the previous transfer. Peter does not record. Dina then records.
Who owns Blackacre in a “notice” or "race" or "race-notice" state?

Back 490

Dina in all -- statute doesn't apply b/c Peter's is a gift, so CL first in time applies

Front 491

Blackacre is located in a jurisdiction that has a statute that recognizes superior title in “any purchaser for value who records prior to other claimants to the property.” On January 1, Ian sells Blackacre to Ben for $100,000. On January 28, Ian sells Blackacre to Allie for $200,000. Two months later, Ben records, and then the next day, Allie records.
Who owns Blackacre?

Back 491

Race statute, so Ben

Front 492

Shelter Rule exception to notice rqmt

Back 492

When a bona fide purchaser in good faith sells to a party who had knowledge of a prior conveyance, the grantee is sheltered by the good faith purchaser and thus has good title, even in a notice or race-notice jurisdiction.

Front 493

Tim sells Blackacre to Liam. Tim then sells Blackacre to Wanda, without Wanda knowing of the prior conveyance to Liam. Peter does know of the prior conveyance to Liam. Wanda now sells her rights in Blackacre to Peter. Does Peter have good title in a notice jurisdiction?

Back 493

Yes under the shelter rule. Policy -- gives protection to buyer in good faith to allow them to convey property.

Front 494

Estoppel by Deed Doctrine

Back 494

A grantor who does not yet own land is estopped from arguing that he failed to deliver a valid deed to a grantee on that basis (unfair to sell something to which you didn't have perfect title, and then use that against buyer)

Front 495

Roger records a deed to Blackacre before he has actually taken title. He then sells Blackacre to Ursula. Roger then seeks re-possession of Blackacre on the ground that he now has perfected title to it but did not have title at the time of the recording and sale to Ursula. Will Roger prevail?

Back 495

No, under Estoppel by Deed Doctrine

Front 496

What is the relationship between the deed and the purchase and sale contract?

Back 496

Typically in a purchase and sale contract, there are all kinds of promises. The deed gets delivered. Once there’s been a valid delivery and acceptance of the deed, promises are replaced by express promises in the deed. The deed takes over.
Merger: When the deed is delivered, any promises are merged into the deed. In fact, there’s often a merger clause saying just that.

Front 497

Merger:

Back 497

When the deed is delivered, any promises, e.g. in the purchase and sale K, are merged into the deed. In fact, there’s often a merger clause saying just that.

Front 498

3 kinds of deeds

Back 498

1) General Warranty Deed: Most comprehensive type of deed. To the extent a deed can give you promises, that’s included in the general warranty deed.
2)Special Warranty Deed: The grantor only warrants that there are no defects in title while he owned the property, not before.
3) Quitclaim Deed: The grantor transfers whatever rights he has in the land, but does not promise or guarantee what those rights are. (This type of deed is often used in intra-family transfers, sometimes in settlements of litigation. )

Front 499

General Warranty Deed:

Back 499

Most comprehensive type of deed. To the extent a deed can give you promises, that’s included in the general warranty deed.

Front 500

Special Warranty Deed:

Back 500

The grantor only warrants that there are no defects in title while he owned the property, not before.

Front 501

Quitclaim Deed:

Back 501

The grantor transfers whatever rights he has in the land, but does not promise or guarantee what those rights are. (This type of deed is often used in intra-family transfers, sometimes in settlements of litigation. )

Front 502

Stan transfers a quitclaim deed to Nina for $50,000. After the transfer, Nina discovers that an easement was granted over Blackacre while Stan had title, but never disclosed by Stan. Does Nina have a claim against Stan based on the undisclosed easement?

Back 502

nope -- no promises as to clear in a quitclaim

Front 503

3 Implied Warranties, present covenants, in a general warranty Deed, or a special warranty deed for the applicable time covered

Back 503

1. Covenant of seisen: The deed conveys the legally described land in the deed
2. Covenant of the right to convey: The grantor covenants that he has the right to convey the land
3. Covenant against encumbrances: There are no encumbrances that have not been disclosed

Front 504

Implied Warranties in a Deed: 3 Future Covenants

Back 504

1. Covenant of quiet enjoyment: The grantor promises to defend against future challenges to the grantee’s title
2. Covenant of warranty: The grantor promises to protect and defend against future assertions of encroachments or encumbrances
3. Covenant of future assurances: A promise to take necessary action to pass valid title if it is later determined that the grantor failed to do so

Front 505

Marketable Title Statutes

Back 505

In almost every state, there is a statute that provides grantors and grantees with protection from technical defects in title if they arose many years ago. (a SOL for minor defects)

Front 506

Buyer's Remedy for Seller’s Breach of Deed Warranty

Back 506

1) Typically, damages
2) For the warranties that go to the right to convey, the buyer is entitled to return of purchase price or the portion attributable to the part of the land that was not conveyed.
3)For breach of the warranty against encumbrances, when the encumbrance is removable, the buyer is entitled to the cost of removal. If it is not removable, the remedy is the difference in the price of the property with and without the encumbrance.

Front 507

can a fixture installed by a tenant or life tenant be removed at the end of her leasehold?

Back 507

The presumption is that fixtures can be removed if they have been installed by a tenant if doing so would not substantially damage the property.

Front 508

Can a fee holder remove fixtures that he has installed?

Back 508

Typically no, but under certain circumstances you can remove fixtures. Qs a court might ask in the absence of K provisions:
1. How much damage would removal of the fixtures cause?
2. How important is the fixture to the operation of the property? If it is operation to the property, it is assumed that it will stay there.
3. Was the fixture specifically designed for the property?

Front 509

The old common-law rule was that if someone trespassed (including those with good faith mistake as to ownership or adverse possessors) on your property and put in fixtures or made improvements, you could ____
The modern rule is that ____

Back 509

CL: owner could evict trespasser but keep the improvements
Modern rule: trespassers in good faith (not adverse then?) can remove improvements or fixtures but only if it does not cause substantial damage to the property.

Front 510

doctrine of lapsing

Back 510

devisee predeceases -- gift invalid and goes to the estate. Exceptions: if language suggests an intent to leave to person's heirs if he predeceased; anti-lapsing statutes, which reads devise as being to heirs if devisee is dead

Front 511

The Doctrine of Exoneration (making free):

Back 511

CL -An heir or devisee is generally entitled to have encumbrances, e.g. liens, upon real estate paid by the estate’s personalty rather than from the real property itself, unless the will directs otherwise.
The common-law doctrine of exoneration does not apply to survivorship interests, e.g. joint tenancy.
Some states have anti-exoneration statutes. Encumbrances pd out of estate only if that is what the testator indicated.

Front 512

Roberto devises Blackacre to Ernesto. Blackacre has a judgment lien of $200,000 on it at the time of the devise. Roberto also leaves an estate consisting of $2 million in non-real-property assets. Under the common law, who is responsible for paying off the lien?

Back 512

Roberto's estate in state's that use the CL doctrine of exoneration. In states with anti-exoneration statutes, only paid if will indicates a desire for exoneration.

Front 513

Alienation

Back 513

A volitional transfer by sale, gift, or devise.

Front 514

All of the following potentially involve ___: Inter vivos grant of real estate with a restraint; Testamentary grant of real estate with a restraint;
Agreements among co-tenants that includes restraint, and Covenants that runs with the land

Back 514

restraints on alienability

Front 515

Common law general rules that may override restraints on alienability:

Back 515

1) Absolute restraints on alienability are always void
2) Partial restraints on alienability are sometimes upheld, but not if unreasonable (must be reasonable in duration, scope, and purpose);
3) use restrictions generally upheld, but not if have an extreme impact on alienability

Front 516

partial restraints on alienability factors:

Back 516

duration -shorter better;
nature of interest - the more substantial, the worse, e.g. can't build on property is a substantial restraint;
the purpose -- a purpose that increases the property's value, or supports charity is reasonable, while a capricious personal whim is not

Front 517

A condominium association reserves the right of first refusal to buy back any unit an owner decides to place on the market. The purpose is to encourage orderly sales to newowners who will be good neighbors, and prevent properties from staying on the market too long and risk lowering prices. Will this be upheld?

Back 517

Yes -- reasonable duration; preserves property value

Front 518

Revise the following as a court might to remove restraint on alienability:
Jimmie devises Blackacre “to Fred so long as he does not sell Blackacre for 50 years, as I cannot bear to see a stranger there on Blackacre.”

Back 518

"to Fred"

Front 519

If a grantor transfers property while she is alive, and then tries to devise it in her will, the devise is invalidated by...

Back 519

Doctrine of ademption

Front 520

If A devises land to B, and the land is subject to a mortgage, B may have the mortgage paid by A's estate if which common law doctrine has not been abrogated in that jurisdiction?

Back 520

Doctrine of exoneration

Front 521

TRUE OR FALSE. An absolute restriction on alienability is always invalid, but a partial restriction on alienability is valid if reasonable.

Back 521

True

Front 522

T/F a court will generally uphold use restrictions on real property

Back 522

True

Front 523

a court may ecen uphold use restrictions on real propertythat severely restrain alienability, if the gift is to a ___

Back 523

charity

Front 524

Paul conveys a house to Roger "so long as it is used as a single family residence." The house is located in a residential suburb. Is the restriction valid?

Back 524

Yes -- not going to severely impact alienability b/c residential area

Front 525

Example 2: Wanda, owner of Wanda’s Toy Store, devises Blackacre to William "so long as the land is used for continued operation of Wanda’s Toy Store." The toy store is not a viable business. Will the restriction be upheld?

Back 525

No. too severe a restraint on alienability

Front 526

cy pres

Back 526

The court tries to honor the intent while making the condition less restraining on alienability. E.g. instead of only using the property as a toy store, only letting it be used as a retail sole proprietorship.

Front 527

What is an easement?

Back 527

1. A real property interest
2. A durable interest
3. Usually limited to an affirmative right

Front 528

easement appurtenant

Back 528

The landowner owns it, but it passes with and is attached to another piece of property. E.g. cottage one row over from beach owns an easement of a path to the beach in a neighboring beachside lot

Front 529

easement in gross

Back 529

personal easement - does not attach to land, but is held by a particular individual, e.g. person buys an easement for permission to park on lot when visiting a nearby beach

Front 530

dominant estate

Back 530

the benefitting estate in an easement appurtenant

Front 531

servient estate

Back 531

the burdened estate in an easement appurtenant

Front 532

What is a license?

Back 532

A permission to cross or to do something that can be revoked at any time.

Front 533

express easements involve real property so are subj to the ___

Back 533

SOF -- have to be in writing -- but detrimental reliance and estoppel exceptionsm and other implied easements

Front 534

express easements for value (fall / do not fall) under state recording statutes

Back 534

fall

Front 535

A subsequent buyer of an property encumbered by an easement does not buy subject to that easement unless the buyer had___.

Back 535

notice (record or inquiry)

Front 536

A buyer of a piece of land with an express easement on it without notice of the express easement has a claim against the seller for ____

Back 536

nondisclosure.

Front 537

2 kinds of express easements

Back 537

appurtenant and gross. Silence or ambiguity favors appurtenant. But may depend if property is close

Front 538

James and Taylor are neighbors. James conveys to Taylor a written grant of "a right to cross my land, good against me and my successors in interest." What does Taylor have?

Back 538

appurtenant easement b/c neighbors, and generation desription implies that right continues

Front 539

Express easement by reservation:

Back 539

The grantor reserves the easement for himself when he transfers the property

Front 540

Express easement by grant:

Back 540

The seller sells off a piece of land and expressly grants the recipient a right to cross the seller’s land (e.g. splits lot and sold portion has no road access, so grants easement)

Front 541

Non-Express, Implied, or Operation-Of-Law Easements

Back 541

These are in some sense exceptions to the Statute of Frauds ( no writing rqmt); also, not subj to recording statutes

( I PINE to use your property):
easement by Prescription
easement by Implication from prior use
easement by Necessity
easement by Estoppel

Front 542

this fact pattern on the MBR suggests what is being tested?:

one party/landowner is claiming some right to cross or use another parcel and there is no express easement.

Back 542

easement by Prescription
easement by Implication from prior use
easement by Necessity
easement by Estoppel
(PINE)

Front 543

Easement by Prescription

Back 543

Easement by adverse possession, as to right to cross land only. All of the adverse possession requirements must be met EXCEPT exclusivity.

Front 544

T/F The public as a whole can claim a prescriptive easement.

Back 544

False in some states

Front 545

Many people, kids and adults, have crossed the backyard of Joe's land Blackacre to get to the beach. Joe has never said a word to any of them. Now two regular crossers -- Betty and Tony -- claim a permanent right to cross. Will they prevail?

Back 545

likely no, b/c their use is equiv to that of public, and use was permissive (implied)

Front 546

what conditions must prescriptive meet?

Back 546

actual entry; hostility; open and notorious; continous for statutory period; often can't be same use as general public

Front 547

Easement by Implication from Prior Use

Back 547

A larger piece of land is divided up and there is read into the division an implied gift that some use previously used on part of the land will be continued by whoever gets the other part of the land. Rqmts:
Requirements
1) they are only read into transactions when a bigger estate is being divided up;
2)use prior to the division, somewhat continuous, and reasonably necessary for the enjoyment of the land; 3) use continues after division; 4) apparent and obvious at time of division;5) ct more likely to find a prior use for a grant than a reservation (presumably b/c owner should have anticipated and made express arrangement as to his own needs)

Front 548

John bought the land next to kathy from kathy. The land has no natural water source. John learns that the previous owner used Kathy's well. He argues that he should have an easement by implication from prior use. Will he prevail?

Back 548

probably not, unless the lots were once combined, and well use has been continuous by the possessors of his lot

Front 549

Example: Johan owned a large piece of land. There was a water well on one side of the land, and Johan regularly crossed from the opposite end (where he lived in a house) to the end with the well to collect water and bring it back to the house. There was no other drinking water supply. Johan then sold off the end with the house to Marty in a deed that included no express easement. Marty crossed Johan's land to get water daily until they got in a fight and Johan built a fence. What legal right does Marty have?

Back 549

Likely owns right to ccess well as an Easement by Implication from Prior Use

Front 550

Easement by Necessity

Back 550

Only applies when a larger parcel is divided up into smaller parcels, leaving part of it landlocked so that there is no road access. No need for prior use. Necessity refers only to ability to get to the land at all

Front 551

Easement by Estoppel

Back 551

An easement that arises when 1) the servient estate owner gives permission to cross his land (detrimentally relies) 2) the person crossing the land invests or does something in reliance to their detriment that the permission will never be revoked (timber company builds logging road); 3) and servient owner knows of investment but does not stop it

Front 552

Express Easements
1. Easements __ and __
Implied Easements:
1. Easements by P___
2. Easements I___
3. Easements by N___
4. Easements by E__

Back 552

Express Easements
1. Easements Appurtenant and In Gross
Implied Easements:
Prescription
Implied from Prior Use (Reservation or Grant)Necessity
Easement

Front 553

You (Can / cannot) have an implied negative easement

Back 553

cannot

Front 554

Negative Easements

Back 554

By and large, easements have to be affirmative. They are generally limited to types that are expressly permitted by statute (e.g., a scenic view or conservation easement).

Front 555

You (Can / cannot) have a negative easement by adverse possession

Back 555

cannot

Front 556

Only negative easements allowed by statutes EVER -- prob must say there's a statute, which will likely relate to one of these

Back 556

a scenic view (can't block mine)
conservation
limited: light, and air

Front 557

Subsequent Purchasers and Non-Record Notice

Back 557

If the buyer gets any notice (e.g. inquiry) that there may be a PINE easement on property, he must investigate, and if he does not, he buys subj to the easement. (If he has no such notice, he can buy free of the PINE easement) How much investigation is enough depends on the context. Sometimes a neighbor's use may be obvious upon observation, e.g. if neighbor's lot is landlocked, or if there's a well-worn path from neighbor's property.

Front 558

James is planning on buying Blackacre from Fred. There are no recorded easements on Blackacre. However, Blackacre contains a path that looks well-worn and the neighbor crosses regularly and has done so for years. As it happens, the neighborhas met all the requirements for an easement by prescription prior to James's buying Blackacre. Does James buy subject to this easement?

Back 558

Yes, inquiry notice and no investigation

Front 559

could a claim of easement by prescription and an easement by estoppel both prevail?

Back 559

no, because prescription requires hostile use, while estoppel requires permission

Front 560

Gina orally informs her neighbor Rita, “I give you the right to an easement over my land to get to the highway any time you want.” Rita never crosses Gina’s land during the following 20 years but then, when Gina erects a fence around Gina’s land, Rita demands access to Gina’s land. Does Gina have such a right? Why or why not?

Back 560

not under an easement theory b/c no type of easement applies to the facts.
Express -- should be in writing;
P- didn't use
I- no
N-no
E- no reliance

Front 561

When Henrietta dies, she devised her land Blackacre to her five children, in divided parts held in separate fee simple title. The part given to her son Paul is in what was the center of Blackacre, and can only be reached by crossing one of the parts now held in fee simple by one of the other of Henrietta’s children. What does Paul have?

Back 561

easement by necessity

Front 562

scope of the express easement

Back 562

expression -- look at language
if ambiguous,
Extrinsic evidence can be brought in.
Things that could not have been foreseeable as burdens on the servient estate will be assumed to not be part of the easement.

Front 563

scope of Implied Easements, easements by estoppel and prescription,

Back 563

With implied easements, the scope is usually limited to that of the prior use. However, if it was foreseeable that changes to easement rights would need to adjust, then new used might be ok.

Front 564

Foreseeable Development - Subdivisions

Back 564

With an easement appurtenant over a parcel, subdivision is allowed to extend the number of parcels that benefit from the easement. The overall burden cannot be something more than reasonably foreseeable at the time of the original grant.

Front 565

Benjie transferred an easement to cross his land to Frank for $10,000. Frank used the easement to drive across a road on Benjie's land. Frank then subdivided his land into 50 single family parcels, and now 50 homeowners want to cross Benjie's land under the terms of the easement. Must Benjie allow them all to cross his land?

Back 565

yes, but only if reasonably foreseeable by Benjie -- but if extraordinary, no. Generally, land development is expected.

Front 566

Non-Exclusive vs. Exclusive Apportionment

Back 566

This comes up under easements in gross
With non-exclusive easements in gross, it cannot be divided or apportioned.
Exclusive easements in gross can be divided or apportioned, but the overall burden on the servient estate cannot be increased in an unreasonable way.

Front 567

I give a personal easement to John to clear timber, 100 trees per year. John then subdivides his easement to 20 different people. He has the exclusive easement to take timber in this area. Is this ok?

Back 567

If those 20 people start taking more than 100 trees altogether, they start taking 1000 trees, a court will say that is not ok. If they just take 5 or 10 trees each, that is reasonable and will be upheld.

Front 568

one stock rule

Back 568

easement in gross can be split up, but overall burden on servient estate must remain roughly constant

Front 569

T/F a non- exclusive easement in gross can be split up, but overall burden on servient estate must remain roughly constant

Back 569

false -- this applies to exclusive easement only

Front 570

Termination of Easements, methods: (9)

Back 570

1) written release (usu reqd);
2) Merger (The dominant estate and the servient estate are owned by the same party -- i.e. are unified);
3)Severance (attempted transfer of easement appurtenant away from land);
4)Abandonment ( stated intent and lack of use not enough. affirmative action esp with other indicators is better basis);
5)Involuntary destruction of servient estate;
6) Adverse possession of an easement (servient estate takes it back);
7) Estoppel claims against assertion of easement right
8) Sale of servient estate to a bona fide purchaser in good faith without notice of easement ;
9. With an easement by necessity, the easement ends when the necessity ends.

Front 571

Fred inherits a landlocked piece of land when Blackacre is divided in two -- Westacre (which he owns) and Eastacre (his brother owns). He enjoys an easement of necessity to cross Eastacre to get to the only road in the area. Then the city builds a road that connects to his house and does not cross into Eastacre. Can Fred still have access across Eastacre as a legal right?

Back 571

No -- necessity easement ends with end of necessity

Front 572

Are easements in gross transferable?

Back 572

In most jurisdictions, alienability is a matter of the intent of the grantor. The law favors alienability.

Front 573

Profits
What are profits?

Back 573

Easement that has to do with taking natural resources (stock), e.g. mining or harvesting timber. The burden on the servient estate cannot become too much.

Front 574

Who has a duty to maintain an easement?

Back 574

servient, unless there is an agreement otherwise.The dominant estate only has to pay for necessary repairs.

Front 575

May the owner of the servient estate use the same access way as the owner of the easement?

Back 575

Yes. Servient owner must not use to degree that the other user can't utilize

Front 576

distinguish Easements from Licenses

Back 576

license can be revoked at will, is not alienable, etc.

Front 577

Easements Appurtenant vs. Easements in Gross

Back 577

appurtenant runs with the (usu geographically close) land; other is attached to the person

Front 578

Easements vs. Profits

Back 578

easement is use (usu access) only; profits involves taking stock from land

Front 579

Prior Use vs Easements by Necessity

Back 579

Both only result when property is subdivided; prior use is when there was a use b4 subdivision, which naturally should continue after. Necessity is when division results in landlocked property that needs access to road

Front 580

prescriptive easement vs. easement by estoppel

Back 580

prescriptive is adverse; estoppel is with permission.

Front 581

REAL COVENANTS AND EQUITABLE SERVITUDES

Back 581

agmts that restrict the right to use land, and which, unlike a simple K, run with the land

Front 582

+requirements for a covenant to run with the land

Back 582

1) in writing (SOF applies), exception is an implied reciprocal servitude;
2) Intent (language like “and his heirs and assigns,” or "runs with the land");
3) Touch and concern (benefit or burden must affect parties as landowners, not simply as individuals);
4) notice must be constructive or actual for subsequent owners;
5) privity, horizontal (at the time the covenant is formed) and
6) vertical privity (title traceable back to primsor) (RST is not so concerned with privity, and more with affirmative vs. negative covenants)

Front 583

2 main differences betw equitable servitudes and covenants

Back 583

1. Requirements for finding real covenants are more demanding (privity, and must be express)
2. Equitable servitudes have only injunctive relief; for real covenants the only relief is damages

Front 584

Dora and Tito, neighbors, sign a written agreement that says only: "Dora and Tito agree not to use our land for commercial purposes." Is this a real covenant?

Back 584

No, it is a K betw them, but won't run with the land.

Front 585

If a K is ambiguous re. the intent to run with the land, can extrinsic evidence be considered?

Back 585

yes, to support intent

Front 586

Horizontal Privity

Back 586

Requires that the estates be unified or connected at the time the covenant was created. E.g.
1. A larger estate that was divided up
2. Landlord and tenants

not clear why rqd

Front 587

Vertical Privity

Back 587

The connection between a party to the covenant and subsequent owners or buyers of the land. At common law, you needed perfect vertical privity- the exact same estate in the land. So e.g. if land split up in inheiritance, this could disrupt v. privity

Front 588

Arnie and Robbie have in the deeds to Blackacre and Greenacre promises not to build any structure higher than two stories. Arnie grants Tom a life estate in Blackacre. Can Robbie enforce the promise as a real covenant against Tom? Why or why not?

Back 588

No -- Tom's estate is lesser than Arnie's fee simple, so v. privity lost

Front 589

Greenacre is burdened by a real covenant benefitting Blackacre that provides that Greenacre will not be used for industrial purposes. However, a loud factory has been built and begun operation on Greenacre. Tara, the owner of Blueacre, a parcel neighboring both Greenacre and Blackacre, wants damages for the loss of business for her bed andbreakfast due to the factory's operation. Can Tara seek damages for violation of the real covenant?

Back 589

no she has no v privity to the original promisors under the covenant so can't invoke covenant to bring an action

Front 590

There is a real covenant burdening Blackacre, a parcel held in fee simple by Joe. Joe subdivides Blackacre in two and sells one half to Peter. Can the real covenant be enforced against Peter?

Back 590

No, the subdivision disrupts vertical privity

Front 591

What kind of notice is needed for a real covenant to apply to a subsequent purchaser?

Back 591

record notice (outline says actual notice is sufficient as well)

Front 592

Touch and concern

Back 592

runs only if it touches and concerns the land. What does this mean? vague. Old definition: relates to use and value of the land; RST: can't be overly oppressive or monopolistic; practically -- issue never considered re. negative restrictions; Affirmative money covenants are most likely to be suspect, e.g. owner will pay $20/ month to X for gardening svcs (may have a monopoly motivation by developer )

Front 593

Must equitable servitudes be express? in writing?

Back 593

Yes, usu must be express and in writing. Exception: Implied mutual negative servitudes in a common development subdivision scheme (common-interest community, where all rules didn't get expressed in writing)

Front 594

Covenants vs. equitable servitudes

Back 594

1) equitable servitudes MAY be implied in a narrow exception; covenants can never be;
2) no horizontal privity is required for equitable servitudes;
3) perfect vertical privity is not required -- a successor can have different interests in the land -- but there must be a substantial connection between the successor and the original bound covenant party.
4) third party beneficiary of equitable servitude can enforce an equitable servitude in some jurisdictions, while 3rd party can never bring action under a covenant for lack of v. privity;
5) ES gives injunctive relief only
6) inquiry notice may sometimes be enough

Front 595

Is the expression of an equitable servitude's intent to Run with the Land the same as for a covenant?

Back 595

Yes, This is the same as with real covenants- language or indications that there was an intent that the restriction continue to subsequent assignees.

Front 596

Is horizontal privity required for an equitable servitude?

Back 596

no

Front 597

Is vertical privity required for an equitable servitude?

Back 597

Not perfect. A successor can have a different interest in the land -- but there must still be a substantial connection between the successor and the original bound covenant party.

Front 598

John and I establish restrictions in the deeds we will not build commercial building on the land. We have intent to run with the land. John then leases his property for 20 years to a company. The company wants to build a commercial building. Can I enforce the equitable servitude against that company?

Back 598

Yes. There’s no real covenant because the leasehold isn’t the same kind of interest exactly, but there’s enough connection between the holder of the lease and John that I can enforce the restriction as an equitable servitude.

Front 599

Can a third party enforce an equitable servitude where she has no connection with an original bound covenant party?

Back 599

In some jurisdictions yes, IF the covenant was intended for her benefit (i.e. she's a 3rd party beneficiary)

Front 600

Gina and Nina own parcels bordering a church they both support through charitable contributions. To make sure that the church can have the quiet it needs, they mutually agree that their parcels will be never be used for industrial or commercial operations. Gina sells her parcel to Rita, who plans to open a loud bar on the parcel. Can the church enforce the equitable servitude against Rita?

Back 600

In some jurisdictions, yes, 3rd party beneficiary of an equitable servitude can enforce

Front 601

Does "touch and concern" apply to equitable servitudes?

Back 601

Yes, same as for covenants

Front 602

+Implied Reciprocal Servitudes, general rationale

Back 602

In a common-interest community, everyone looking at the development should understand that there are these restrictions on the property.

Front 603

+Implied Reciprocal Servitudes, requirements

Back 603

1) common scheme develpment -- multiple properties (not just 2)
2) touch and concern;
3) reciprocal (all owners have burden/benefit);
4) negative promise only;
5) actual, record, or inquiry notice

Front 604

how to tell if common scheme

Back 604

o Advertisements to possible buyers mentioning reciprocal restrictions
o Use of a sales map showing such restrictions
o Oral or written representations to buyers that all lots will be similarly burdened by someone such as a sales broker;
o Sale of a number of lots with the restriction in the lot deed mentioning reciprocal restrictions

Front 605

William is developing a large parcel he owns through subdivision. He has already sold off 50 lots out of a planned 200, each of which contains a restriction on use for current and future owners to single family residential use. He transfers the very next lot to Gloria, for $20,000; her deed contains no mention of a restriction to single family residential use. Gloria has seen the sales promotional material that says that all lots will be used only for single family homes. Gloria then decides to build a fast food restaurant on the lot. Can she? Why or why not?

Back 605

no-- implied Reciprocal Servitudes -- lots of notice, evidence of common scheme

Front 606

Pleasantville Subdivision is one in which all deeds to date contain a restriction against building more than three stories high. The last lot sold in the subdivision, however, omitted this restriction, and its current owner, Tess, now has built a five story mansion. Can she be made to tear it down?

Back 606

probably -- Implied Reciprocal Servitude --visual notice, all deeds prior having provision is sufficient evidence of common scheme. (I think it might depend in part on what happens while she''s building -- she should get actual notice from neighbors long b4 completion, otherwise laches defense)

Front 607

Termination of Equitable Servitudes

Back 607

methods not in common with elimination of covenants:
1) Abandonment/acquiescence: If a significant number of units are not complying and no one has done anything about it;
2) material changes in circumstances making it impossible to enforce (have to be substantial, and not caused by party in violation)

also some equitable defenses against enforcement against the particular individual:
o Estoppel: If you were told you could build a bigger building and detrimentally relied
o Unclean hands: enforcer violated the same restriction being enforced
o Laches: if you wait too long to enforce in a way that prejudices the party you want to enforce against

Front 608

A common development community has a restriction prohibiting commercial development or use. The development is now surrounded by a very loud commercial area -- so loud that none of the houses in the development can be sold or rented for residential use. One owner, Tim, is nonetheless trying to enforce the restriction against an owner who wants to develop a bar and liquor store on his parcel. Can he?

Back 608

yes under a changed circumstances defense

Front 609

water rights - 2 main approaches

Back 609

most states use a blend of reasonable use and prior appropriation.
1) reasonable use: Users of water can only make a use such that it does not unreasonably interfere with another party’s domestic use. Domestic use trumps commercial use

2) Prior appropriation:The first party to make beneficial use of water owns that flow to the extent that they used it. This applies whether use is domestic or commercial (e.g. agricultural)

systems apply to underground water as well

Front 610

Navigable waters

Back 610

government has special rights there no matter what the private claims are.

Front 611

riparian landowner

Back 611

owns land along a river

Front 612

Can a riparian landowner make changes such as building levees and creating retaining ponds in order to prevent flooding?

Back 612

Yes but -- You can take special protection to prevent your land from flooding but not if it unduly harms your neighbor.

Front 613

The riparian doctrine

Back 613

states that water belongs to those who own the land bordering the water course (known as riparians).

Front 614

Lateral Support Rights

Back 614

When mining on one land causes subsidence on a neighbor’s land

Front 615

Lateral Support Rights - strict liability

Back 615

when the actions caused subsidence on a neighbor's land and the neighbor's surface building structures did not contribute at all to the subsidence.

Front 616

Lateral Support Rights - negligence liability

Back 616

when the actions caused subsidence on a neighbor's land and the neighbor's surface building structures did contribute to the subsidence.

Front 617

Subjacent Support Rights

Back 617

right of land to be supported by the land which lies under it. -- applies when there is a division in ownership between the surface rights and the underground rights in mining.

Front 618

Subjacent Support Rights-- Strict liability

Back 618

for subsidence from mining caused to surface structures in place before the mining rights were transferred or sold.

Front 619

Subjacent Support Rights-- negligence liability

Back 619

for subsidence from mining caused to surface structures built after the mining rights were sold or transferred.

Front 620

zoning

Back 620

- restrictions on land use by govt
- A form of legislative action, done mostly at the local level
- Where do localities get their power to zone? state enabling statute.
- Courts generally defer to local zoning legislation and decisions that are consistent with the enabling statute.

Front 621

comprehensive zoning plan -- relevance to zoning grievances

Back 621

Courts look to see if a particular zoning decision adheres to the comprehensive plan. (A plan for long-term zoning in a locality)

Front 622

+doctrine of Nonconforming Use

Back 622

A nonconforming use is a use that was legal when it was established, but zoning laws changes now prohibit the use.

Doctrine says that if you have a use that was lawful when it was established, municipality can't shut it/ condemn down unless it pays just compensation (or gives them a long period for transition)

Front 623

doctrine of Nonconforming Use: vested right

Back 623

a way of saying that a person was using the property for the prohibited purpose before the zoning changed to prohibit

Front 624

variance

Back 624

adeviation from the current zoning to allow some technical requirement not to be complied with, basically an exception -- an administrative action, applies to individual property use, granting if current zoning imposes an undue hardship on the owner of the parcel (b/c of a factor related to the property that would affect any owner) and the variance does not harm the public interest, very high standard, have to be supported by a review of individual circs

Front 625

Spot zoning

Back 625

where legislative action results in a kind of legislative variance -- giving one biz or individual (or small group) an advantage or penalty vis a vis any similar party. Looked at askance, not given as much deference as legislative decisions usu are

Front 626

Zoning Wipeouts

Back 626

When zoning takes away ALL the economically viable use and value of the property, presumptively that is a “taking” that the government has to pay just compensation for.

Front 627

Eminent domain:

Back 627

Federal or state government (or local government that has been delegated the power) can take title to the property itself by eminent domain, sometimes called condemnation

Front 628

T/F The owner of land is strictly liable for damage due to actions on his own land that caused subsidence on a neighbor's land if the neighbor's surface buildings contribute to the subsidence.

Back 628

False -- negligence liability

Front 629

Regulatory taking:

Back 629

A regulatory taking occurs when the government does not seek title to property, but new regulation so reduces the value of the property that under certain circumstances the court will say that it is the equivalent of a taking and just compensation has to be paid. In general, these situation must be extreme, i.e. a wipeout, for the court to find a reg. taking

Front 630

Takings under eminent domain must be for ___.

Back 630

public use

Front 631

What qualifies (is at the boundary) of public use for the purposes of eminent domain?

Back 631

Under the Federal Constitution, public use is very broadly defined to mean any real public benefit. Even if the property is taken by the government to give to a private party as part of a public effort of redevelopment of an area that is blighted, that is ok.
o Under some state constitutions, taking of private property to give to a developer is subject to heightened scrutiny.

Front 632

Big City wants to condemn (take by eminent domain) ten private houses in order to help a developer who wants the land for an up-scale condominium development. The houses are in good repair but do not generate nearly as much tax revenue as the new development is estimated to generate, and Big City is cash strapped and needs more revenue for social services. Would these condemnations be for "public use"?

Back 632

under const std, probably ok b/c public benefit usu treated as public use. States may find otherwise. due to heightened scrutiny when state gives property over to a developer

Front 633

If eminent domain is exercised, govt has to give ___ to owner

Back 633

fair market value before the eminent domain is filed. Objective std.

Front 634

Usually a court will not find a regulatory taking absent a ____ in ____.

Back 634

total or near total reduction, fair market value

Front 635

regulatory taking -- public harm inquiry

Back 635

the court will consider the question of public harm in deciding whether there has been a regulatory taking (cost benefit analysis). This is way to prevent owners of property that present a significant public harm to avoid remediation required by compliance with beneficial regulations. I'm not sure if/when this is really relevant if the govt won't find a regulatory taking minus a total wipeout anyway. But technically, public harm is one of the factors

Front 636

factors considered in determining whether there's been a regulatory taking

Back 636

1) reduction in value
2) (nominally) public harm

Practically, only found when there's a wipeout in property value / no potential development use

Front 637

nuisance

Back 637

competing interests -one private user is substantially and unreasonably interfering with another's use

Front 638

private nuisance --substantial and unreasonable interference factors

Back 638

look at first use; fit in the neighborhood; relative burdens to parties (social utility balancing)

Front 639

Remedies for private nuisance

Back 639

-injunction -- but some courts may limit plaintiffs to a damages remedy.
- The courts should only grant damages vs an injunction if shutting down a plant or facility would cause great economic harm and loss of utility.
- Damages are the difference between the value of your land without the nuisance and the __________ of your land with the nuisance.

Front 640

public nuisance

Back 640

unreasonable interference with a public right -- e.g. blocking road

Front 641

A private actor may bring a public nuisance case if the party can show that they have a _______________ that is distinct from the public as a whole.

Back 641

particular harm

Front 642

Dedication:

Back 642

The giving of land by the lawful owner to the government for use of the public. The owner retains ownership, but significant restrictions on use.

Front 643

Condominium:

Back 643

The building as a whole is privately owned

Front 644

Cooperative:

Back 644

The building as a whole is owned as a corporation and individual units are just leased as shares in the corporation. Greater latitude for the owners because own in common.

Front 645

In order to be categorized as a freehold, an estate must be...

Back 645

(i) immobile (either land or some interest derived from or affixed to land), and (ii) for an indeterminate duration (as opposed to leasehold, which is for a limited duration).

Front 646

duration). The owner of a present estate has the right to ____the property.

Back 646

currently possess

Front 647

T/F a vested remainder is fully transferable inter vivos, devisable by will, and descendible by inheritance.

Back 647

True

Front 648

T/F a vested remainder is not reachable by creditors

Back 648

False -- most states permit any transferable future interest to be reached, except for interests held by unascertainable or unborn persons.

Front 649

What is the measuring life in RAP?

Back 649

If a measuring life is not specified, the measuring life is the life directly related to the future interest that is subject to the rule. Restriction: it must be human. It can be determined by more than one life, provided the number of such lives is reasonable.

Front 650

A devises Blackacre “to B for life, and then to B’s children who reach the age of 25" Whose is the measuring life?

Back 650

B

Front 651

RAP -- exceptions to failure of class to vest

Back 651

transfers of a specific dollar amount to each class member and transfers to a subclass that vests at a specific time (“to the children of B, and upon the death of each, to that child’s issue”) are tested separately. Any person who is entitled to the transferred interest is not prohibited from taking that interest simply because there are other members of the class who are prohibited from taking the interest.

Front 652

Conveyance of Crops

Back 652

Generally, both fructus naturales and industriales are conveyed along with the land conveyance because the owner of the land is presumed to be the owner of both types of crops. Since this presumption is based on the intent of the parties, a contrary intent may be shown to rebut the presumption. Exception -- ripe / harvested crops: harvested are not conveyed; some jurisdictions say that ripe fruits are severed b/c no longer drawing from the soil, and so are not conveyed.

A tenant whose lease is terminated though no fault of his own can reenter to remove, harvest, and cultivate crops planted prior to the termination of his tenancy. (“doctrine of emblements”)

Front 653

doctrine of emblements

Back 653

A tenant whose lease is terminated though no fault of his own can reenter to remove, harvest, and cultivate crops planted prior to the termination of his tenancy. However, adverse possessors who plant under a claim of right are entitled to the same rights as tenants.

Front 654

"To Anne for life, then to Bonnie's heirs." Bonnie is 90, and has 1 child, Rick. Is Rick's future interest vested?

Back 654

No, because living people cannot have heirs. (Also, "heirs" is a class gift, and Bonnie could still have other children under common law, so class isn't closed)