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275 Cards in this Set

  • Front
  • Back
Four Ways Property Can Be Transferred
1. Sale
2. Gift
3. Devise (Give in will)
4. Intestate Sucession
Fee Simple
The largest possessory estate. Capable of lasting indefinite. NO FUTURE INTEREST

"to A" or "to A and his heirs"
What impact do words of intent or purpose have in defining ownership?
None. They describe why but not what interest is transferred.
What are defeasible fees?
Ownership interest that can be terminated.
1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent
3. Fee Simple Subject to Executory Interest
Fee Simple Determinable
Fee simple limited by specific DURATIONAL language.
- so long as
- while
- during
- until
Fee Simple Subject to Condition Subsequent
Fee Simple limited by specific CONDITIONAL language
Aside from the durational and conditional language what is the difference between fee simple determinable and condition subsequent?
Fee simple condition subsequent requires the grantor to exercise a right in order to take possession.
What is the future interest for fee simple determinable?
Possibility of Reverter

In MD, right limited to 30 years. And have 7 years to exercise.
What is the future interest for fee simple subject to a condition subsequent?

How does MD treat this interest?
Right of Reentry. Must be reclaimed.

May be transferred inter vivos in MD, b/c MD considers it a present possessory interest. In MD, right limited to 30 years. And have 7 years SoL to exercise.
Fee Simple Subject to Executory Interest
Fee simple that ends upon the happening of an event and the future interest vests in a THIRD PARTY
What is the future interest in a Fee Simple Subject to Executory Interest?
An executory interest. Because it divests an earlier interest. Held by 3rd party.

Executory Interest: estate in 3rd party that cuts the prior estate short upon the occurrence of a specified condition.
LIfe Estate
Present estate that is limited by a life.

"for lief"

IF ambiguous, look to intent
Is a life estate transferable?
Yes
Future interest if land goes back to grantor after life estate ends.
Reversion
Future interest if land goes back to third party after a life estate ends?
Remainder

Future estate becoming possessory upon expiration of a prior possessory estate of KNOWN fixed duration created in the same conveyance as the remainder.
When is waste a consideration?
When more than one party has an interest in the same piece of property? In the future or at the same time.
Three Types of Waste
1. Affirmative: caused by voluntary conduct.
2. Permissive: caused by neglect
3. Ameliorative: change that inc. value
Who has the right to use/possess in a concurrent estate?
All owners have right to use and possess WHOLE. Unless contract out.
Tenancy in Common
Default. Have separate but undivided interest in property.
1. No right of survivorship.
2. Can transfer at death or during life
Joint Tenancy
Tenancy with right of survivorship
How do you create join tenancy?

What is the MD rule?
1. Must make a clear expression of intent AND
2. Must have survivorship language

MD requires express language that the property be held in joint tenancy.
Four Unities of Joint Tenancy
Need ALL four: P-I-T-T
1. Possession: all must have equal right to possess.
2. Interest: must have equal share of same type of interest.
3. Time: must receive their interest at same time.
4. Title: must receive their interest in same instrument.
What happens if any of the unities are severed?
Joint Tenancy is terminated turns into Tenancy in Common
Common Situations Where JT Unities Severed
1. Inter vivos transfer: destroys survivorship
2. Mortgage: severs in MD
3. Leases: severs in MD
When does an inter vivos transfer not destroy a joint tenancy?
When only one of MORE THAN TWO joint tenants conveys
What happens to a lease against a joint tenant's interest upon the tenant's death?
The lien severs/terminates due to right of survivorship of other tenants and none of the tenants are encumbered.

In MD, severed on the date of actual execution of a judgment lien.
Jurisdictional Split for Whether a Mortgage Can Sever a Joint Tenancy

What is the law in MD?
Majority: Lien theory. Mortgage is treated as lien and does not destroy joint tenancy

Minority: Title theory: Mortgage severs title unity.
MD is a title theory state.
In MD, what happens if one joint tenant kills another?
MD makes the killer hold the victim's property in trust for the decedent's estates or heirs.
Jurisdictional Split for Whether a Lease Can Sever a Joint Tenancy
1. Lease Severs
2. Treat lease as temp, suspension of joint tenancy
Tenancy by the Entirety
Joint Tenancy between Married Spouses
Require four JT unities PLUS marriage

In MD, if parties not married and conveyed a tenancy by entirety, there will be a presumption that it becomes a joint tenancy.
How is a tenancy by the entirety different from a joint tenancy?
Tenants by the entirety CANNOT alienate or encumber their shares w/o consent of their spouse.
General rule for possession and use for Concurrent Owners
Each co-tenant has right to possess all, regardless of type of co-tenancy and co-tenant's share.

Unless contracted otherwise
Remedies for ousted tenant?
1. Get an injunction granting access to property.
2. Recover damages for the value of the use while co-tenant was unable to access property.
How is rent from a third-party distributed?
Rent minus operating expenses is divided based on ownership interest of each co-tenant
What are operating expenses?
Necessary charges, such as taxes or mortgages interest payments.
How are operating expenses divided?
By ownership interests of each co-tenant. A co-tenant can collect for any payment in excess of his/her share of operating expenses
How are repair expenses divided?

What is the MD rule?
Not divided. No right to reimbursement, but can get credit in partition action.

In MD, if co-tenant requests contribution for a repair necessary to preserve property, co-tenant entitled to contribution.
How are improvement expenses divided?
No right to reimbursement. Can get credit in partition action.
Can tenants by entirety bring a partition action?
No. Only TIC and JT have a unilateral right.
What is the effect of a partition?
Property is divided into two distinct portions. Usually a physical (in-kind) partition.
When will a court order a partition by sale?
If physical partition is:
1. not practical OR
2. not fair to all parties
Can co-tenants agree not to partition?
Yes. Agreement MUST be:
1. Clear, AND
2. Time limitation must be reasonable
What are the two kinds of executory interests?
1. Springing Executory Interest
2. Shifting Executory Interest
Springing Executory Interest
Divests the grantor

(i.e. after a life estate, third party takes instead of grantor)
Shifting Executory Interest
Divests prior grantee

(i.e. grantee loses life estate due to condition)
Can remainders follow a vested fee simple?
No
Two types of remainders?
1. Vested
2. Contingent
Vested Remainder
Interest:
1. Given to an ascertainable grantee.
2. Not subject to a condition precedent

If fail either, then contingent.
Vested Subject to Open
A vested remainder in a:
1. Class or Class Gift; and
2. Full class membership is unknown

Note: at leas one person must be vested. Otherwise contingent. If in gestation upon closing, included in class.
Rule of Convenience for Vested Remainder's Subject to Open
If the grant does not have an express closing date, the rule of convenience closes the class when ANY member of the class becomes entitled to immediate possession.

Avoids RAP.
Doctrine of Worthier Title
If remainder is in the grantor's heirs, it creates a presumption in reversion to grantor.

DOCTRINE REJECTED IN MD
Rule in Shelley's Case
If remainder is in the grantee's heirs, then uses the doctrine of merger to create a fee simple.

NOTE: same outcome. RULE REJECTED IN MD
Rule Against Perpetuities
Specific future interests are valid only if they vest or fail by the end of a life in being, plus 21 years.
NOT TESTED IN MD
If violated, strike violating interest from grant. Always identify interest after striking.
Rule Against Perpetuities Applies Only To
1. Contingent Remainders
2. Executory Interests
3. Vested Remainders Subject to Open, IF not closed by rule of convenience.
Analysis for Rule Against Perpetuities
1. When: are the interests created? at grant or death?
2. What: are interests created subject to RAP?
3. Who? Identify relevant and/ validating life
Who is the validating life?
Person who tells us whether the interest vests or not within the perpetuities period (lifetime + 21 years).
1. Must have been alive when interest was created.
2. Can validate her own interest.
3. No validating life, then interest is no good.
Special Rule for Class Gifts and RAP
If gift to any member of class if void under RAP, then gift is void to all members of class.

"bad as to one, bad as to all"
Two Exceptions to Class Gift Rule
1. Transfers of a specific dollar amount to each class member.
2. Transfer to a sub class that vests at a specific time. "to children of B, and upon death of each, to that child's issue"
Exceptions to RAP
1. Gift from charity to another charity.
a. RAP applies when property from charity to non-charity.
2. Gift to alternate charity not subject to RAP.
3. RAP does not apply to an option held by a current tenant to purchase a fee interest.
What type of interests are created by a lease?
BOTH a property interest and a contract interest
Four Type of Tenancies
1. Tenancy for Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance
Tenancy For Years

What are the MD rules for Tenancy for Years?
Measures by a fixed and ascertainable amount of time. Need not be years, can be any length of time.
-one year length in MD presumed.
-notification by landlord, w/in 3 mos. in MD, 6 mos for farms
-if 5 or more units, then lease must be in writing.
How is a Tenancy for Years created?
An agreement by the landlord and the tenant. Must demonstrate intent.

- Statute of frauds applies for terms longer than one year.
How is a Tenancy for Years terminated?
Automatically upon end of term. As a result no notice required, unless contracted for.
How can a Tenancy for Years end before the term is over?
1. Tenant surrenders lease
2. Tenant or landlord commits material breach of the lease.
Periodic Tenancy
Estate that is repetitive and ongoing for a set period of time. Renews automatically unless one party gives notice of termination.
How is a Periodic Tenancy created?

In MD, what is the term for a periodic tenancy?
Parties must intend to create a periodic tenancy EXPRESSLY or IMPLIED.

In MD, week-to-week tenancy created only for week-to-week leases. Otherwise month to month.
How is a Periodic Tenancy terminated?
When proper notice is given, otherwise renews.

1. Notice is proper when given before the start of the lase PERIOD, however the period was defined. Termination is effective last day of the period.
Tenancy at Will
Tenancy can be terminated by either landlord or tenant at any time, for any reason.
How is a tenancy at will created?
By EXPRESS agreement or by IMPLICATION
How is a tenancy at will terminated?
Can be terminated by either party without notice. Reasonable time must be given to leave.
Does the tenancy at will terminate if the landlord dies?
Yes. Similarly, if tenant dies, then terminated.
If agreement only gives the tenant the right to terminate, will the landlord have the right as well?
No.

But if agreement gives right to landlord, then tenant has it as well.
Tenancy at Sufferance
Tenancy created when a tenant holdover after the leas has ended. Same terms as the prior.
How is the Tenancy at Sufferance created?
Created by action of tenant alone.
How is a tenancy at sufferance terminated?
1. Tenant leaves voluntarily.
2. Landlord can evict the tenant.
3. Landlord can re-rent to tenant, and becomes periodic tenancy.
What are the tenant's two duties?
1. Pay rent
2. Avoid waste
Three Situations When Duty to Pay Rent Is Suspended

What is the MD specific rule?
1. Premises are destroyed (not by tenant)
a. In MD, if rented for 7 or less, then tenancy ends
2. Landlord completely or partially evicts tenant
3. Landlord materially breaches the lease
Implied Covenant of Quiet Enjoyment

IN MD, can it be waived?
Allowed to withhold rent when:
1. Landlord takes actions that make premises wholly or substantially unsuitable for their intended purposes.
2. Tenant is constructively evicted.

Cannot waive in residential leases in MD.
Four Elements of Constructive Eviction
1. Premises were unusable for intended purpose.
2. Tenant NOTIFIES landlord of problem.
3. Landlord DOES NOT correct problem.
4. Tenant vacates the premises after a REASONABLE amount of time has passed.
Implied Warranty of Habitability
Landlord has obligation to maintain the property such that it is suitable for residential use.
1. Cannot be waived.
2. Failure to comply with housing code a breach
3. For residential, not commercial
Remedies for Implied Warranty of Habitability Violation
1. Refuse to Pay Rent
a. Give NOTICE and REASONABLE TIME to fix
2. Remedy the defect and offset costs against the rent
3. Defend against eviction
Must the tenant leave for a IWH claim?
Yes. Have to vacate, not required to vacate for quiet enjoyment and constructive eviction.
Ameliorative Waste in Tenancies
Usually require landlords permission. Landlord can prohibit through lease.
Landlord's Duty to Mitigate Damages
Majority: landlord must make reasonable efforts to re-rent property. MD RULE

Minority: Does not have to mitigate. More common in commercial leases.
How can a landlord impose a higher rent on a holdover tenant?
If landlord informed the tenant of the increase prior to the expiration of the old lease.
Landlord Duty to Deliver Possession
Majority: landlord must deliver actual physical possession of the leasehold premises.
Minority: landlord must deliver only legal possession
In MD, what remedies if landlord does not give possession to tenant?
1. Does not have to pay rent
2. Has a right to cancel the contract
3. Has the right to return of deposit AND
4. May sue for damages.
What must the landlord control?
1. Common areas (lobby, hallway)
2. Nuisance like behavior of other tenants

Not responsible for off-premise 3rd party. Landlord not evict in retaliation of complaint.
Tort Liability of Tenant
Owes a duty of care. Extends to invitees, licensees and foreseeable trespassers.
Tort Liability of Invitees
1. Responsible in negligence for latent defects about which the tenant has not been warned.
2. Responsible for new faulty construction completed negligently.
3. Negligence that causes injury in common areas of property.
Assignment v. Sublease
Assignment is a complete transfer of tenant's remaining term. Sublease is a transfer for less than the entire duration of lease

NOTE: a clause that prohibits an assignment does not automatically also prohibit subleasing.
Responsibility of Rent to Landlord in an Assignment
1. Tenant (through privity of contract)
2. Subsequent Tenant (through privity of estate)
Responsibility of Rent to Landlord in Sublease
1. Tenant only
Can the landlord deny permission to transfer the lease?

What is the MD rule?
Majority: a landlord may deny, for a commercially reasonable reason.
Minority: a landlord may deny permission at discretion

In MD: unless specifically denied in lease, landlord should allow reasonable requests for sublet or assignment.
Does a landlord need a tenant's permission before transferring interest?
No. But new landlord is bound by terms of existing lease.
What type of property is the focus of fair housing and discrimination statutes?
Primary focus is on multifamily residential family
Who is protected by fair housing and discrimination statutes?
Discrimination based on:
1. Race
2. Color
3. Religion
4. National Origin
5. Sex (does NOT include sexual orientation)
6. Disability
7. Familial Status
What type of action is prohibited under fair housing and discrimination statutes?
1. Refusal to rent
2. Requiring different rents
3. Denying available units
4. Stating a discriminatory preference in an advertisment
What is required to prove discrimination under the fair housing and discrimination statute?
Prohibited behavior must be linked to the protected basis.
What is adverse possession?

What is the period of time for AP in MD?
Allows an unlawful trespasser to acquire good title to a piece of property.

In MD, 20 years for AP.
When does the good title provided by adverse possession relate back to?
To the date the person trespassed onto the property.
Four Elements for a Valid Adverse Possession
1. CONTINUOUS for statutory period
2. OPEN and NOTORIOUS
3. HOSTILE
4. EXCLUSIVE
Can infrequent use suffice for the continuous requirement?
Yes, if the infrequent or seasonal use is consistent with the type of property.
Tacking in Adverse Possession
Adverse possessor can tack on adverse predecessor's time on her own time to satisfy statute. BOTH adverse possessors must be in PRIVITY to satisfy tacking requirement.
Can an adverse possessor take over a disabled persons property?
No, if disability existed before adverse possessor entered. Yes, if disability after.
Standard for open and notorious use in adverse possession?
Use must be such that it would put a reasonable and true owner on notice of the adverse use.
Standard for "hostile" possession?

What is the MD standard for "hostile" possession?
Possession must be adverse to the owner's interest.
Majority: Do not inquire into the adverse possessor's state of mind. MD RULE
Minority:Inquire into the adverse possessor's state of mind.
Jurisdictional Split for Subjective Inquiry Into Hostile Possessor
Good Faith: adverse possessor thinks that the land is unowned or that she is the rightful owner and therefore AP allowed.
Bad Faith: must have bad faith to acquire land
What is constructive adverse possession?
When adverse possessor enters under the color of title from an invalid instrument and occupies a portion of the property. AP, now in actual possession of land occupied and constructive possession of remainder.
Can easements be acquired by adverse possession?
Yes
Two stages to a land-sale contract
1. Contract Stage: liability must be based on K provision
2. Deed Stage: liability must be based on deed warranty
Doctrine of Merger in Land Sale Contracts
Covenants under the K are merged into the deed and therefore cannot be enforced unless the COVENANT ALSO IN DEED
Requirements of Statute of Frauds for Land Sale K
1. Must be written
2. Must be signed by the party to be charged, (does not need both)
3. Must include the essential terms. (parties, description of property and price and pmnt)
Exceptions to Statute of Fraud req for Land Sale K
1. Part-Performance (Payment, Possession & Improvment)
2. Detrimental Reliance
Implied Covenant of Marketable Title
Title is free from UNREASONABLE risk of litigation
1. Unquieted Title
2. Private encumbrance (mortgage, covenant, easement)
3. Violation of a zoning ordinance
REMEDY: recession of title

In MD, prior owner having HIV, dying or felony is not required to be disclosed.
Implied Warranty of Fitness or Suitability
Applies to defects in NEW CONSTRUCTION. Depending on jurisdiction both initial and subsequent homeowner may recover damages
What if a material defect does not the effect the value of the home, health and safety or desirability of the home?
Then no duty to disclose defects. Must disclose all KNOWN physical material defects.
Sellers Remedies when Breach by Buyer
1. Damages: diff btwn K price and mkt value on date of breach.
2. Recession and Sale: seller can sell property to someone else
3. Specific Performance
Buyer's Remedies on Breach by Seller
1. Damages: diff btwn K price and mkt value on date of breach.
2. If seller breach in good faith, buyer can only recover out of pocket expenses.
3. Recession and Sale: returns payments to buyer and cancels K.
3. Specific Performance
Who holds the risk of loss between execution of K and closing of the deed?
Majority: Buyer holds equitable when btwn when K is executed and closing of the deed.
a. Buyer responsible for damages to property.
b. As holder of legal title, seller has a right to possess

Minority: risk of loss on seller until closing of deed.
Mortgage
A security device used to secure repayment of a debt.
Two Components of a Mortgage
1. Note: borrower's promise to repay the loan/debt.
2. Mortgage: instrument that provides security to the note
Two Kinds of Mortgages
1. Purchase Money Mortgage: loan to buy property
2. Future Advance Mortgage: line-of-credit
Deed of Trust
Operates like a mortgage but uses a trustee
Equity of Redemption for Mortgagor
Mortgagor (borrower) can proclaim title and prevent foreclosure upon full payment of debt.
Statutory Redemption

Does MD have statutory redemption?
Allows mortgagor to redeem the property even after foreclosure sale. This redemption can only happen by statute.

MD does not permit redemption of property after foreclosure sale.
Two Types of Transfers by Mortgagor
1. Buyer can assume the mortgage: both parties responsible for mortgage
2. Buyer can purchase subject an existing mortgage: only original debtor is liable for mortgage (default)
Two Common Methods of Foreclosure
1. Judicial Sale: sale under supervision of court
2. Power of sale: sale held by lender

Deficiency judgment issued for balance not covered by sale.
Who has priority interest in foreclosure?
Earliest mortgage placed on the property has priority over other interests.
Four Exceptions to the Earliest Priority Rule for Foreclosures
1. Purchase Money: gets priority over all other mortgagees.
2. Unrecorded Senior Mortgage: junior mortgage who paid value has priority over senior when junior was never given actual notice or constructive notice.
3. Subordination Agreement: a senior mortgagee agrees to subordinate interest to a junior mortgage.
4. Mortgage Modification: if mortgage becomes more burdensome, the modification is subordinated. Original mortgage still remains superior.
Deed in Lie of Foreclosure
Mortgagor can convey property to lender in exchange for releasing any outstanding debt.
What are the requirement for a valid deed?
1. Must be delivered, AND
a. Whether the grantor had PRESENT INTENT to transfer the property. Req. in MD. In MD, parol evidence is admissible to prove delivery was conditional, burden on grantor to prove oral condition.
2. Must be accepted
a. Presumed if provided for value/beneficial conveyance
What FOUR contents must be present in a valid deed?
1. Identify parties and signed by grantor.
2. Include words of transfer
3. Granting clause that evidence a present intent to transfer.
4. Sufficient description of property

NOTE: Consideration not required.
Does recording affect the validity of a deed?
No, a deed is valid at delivery. Delivery is key. Delivery is satisfied at the existence of the necessary grantor intent.

In MD,
Common Law (default) Recording Rule
First grantee to receive a deed wins. First in time, first in right.
Who is not protected by recording statutes?
Those who do not purchase for value.
Three Types of Notice
1. Actual Notice: subsequent grantee has real & personal knowledge of a prior interest.
2. Constructive Notice: prior notice is recorded.
3. Inquiry Notice: reasonable investigation would have disclosed existence of prior claims.
Race Recording Statutes
First to record wins, even if subsequent purchaser had notice of prior, unrecorded conveyance
Notice Recording Statute
Subsequent purchaser has good title if she buys without notice of prior, unrecorded conveyance
Race-Notice Statute
Good title, if purchase without notice of prior unrecorded conveyance AND has to record first.

MD is a race-notice statute state.
Shelter Rule for Recording Statutes
A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor, even if the person had knowledge of a prior conveyance.
Estoppel by Deed
If grantor conveys land he does not own, cannot later repossess land if grant subsequently acquires title.
Three Kinds of Deeds
1. General Warranty
2. Special Warranty
3. Quit-Claim Deed
General Warranty Deed
Grantor warrants title against ALL defects, even if the grantor didn't cause the defects.
Six Implied Covenants in a Deed
1. Covenant of Seisin
2. Covenant of the Right to Convey
3. Covenant against Encumbrances
4. Covenant of Quiet Enjoyment
5. Covenant of Warranty
6. Covenant of Future Assurances
Covenant of Seisin
Warrants that the deed describes the land in question
Covenant Against Encumbrances
Warrants that there are no undisclosed encumbrances on property that could limit its value.
Covenant of Quiet Enjoyment
Grantor promises to defend against future challenges to grantee's title to the property.
Covenant of Warranty
Grantor promises to defend against future assertions of encroachment.
Covenant of Future Assurances
Grantor promises to future title problems.
Special Warranty Deed
Grantor warrants only against defects caused by the grantor.
Quitclaim Deed
Grantor makes no warranties as to the health of the title.
Remedies When Covenants are Breached
Damages. Usually lesser of new purchase price or cost of perfection.
Fixtures
Tangible personal property that is attached to real property in a manner that it is treated as a part of real property.
Can the buyer of a real property remove fixtures?
Buyer is entitled to chattel, unless the seller reserves the right to keep chattel.
Can life tenants and tenants remove fixtures?
Presumption is they can, unless doing so would permanently damage the property.
Can trespassers remove or improve fixtures?
Old Rule: could never remove any fixtures or improvements that they installed.
New/Majority Rule: trespassers can recover the value added to the property so long as they acted in good faith.
Define Heirs
people who take a decedent's INTESTATE estate. If not dead, not heir.
Guiding principle in interpretation of will?
Testator's intent
What happens if decedent dies without a will or heirs?
Decedent's property escheats to the state.
Four Types of Gifts in a Will
1. Specific Devise: can be distinguished
2. General Devise: when satisfied from general assets
3. Demonstrative Gift: satisfied from particular source
4. Residual Gift: balance when general & specific gift made.
Define Ademption
Devise of property that fails because it is no longer in the testator's estate, at testator's death. Beneficiary gets nothing.

NOTE: ademption only for specific devise (real property), no ademption for generay devise (money).
Define Ademption by Satisfaction
If testator gives the property to the beneficiary while testator is still alive, the gift is adeemed by satisfaction.
Lapse of a Devise
Devise fails (lapses) if beneficiary dies before the testator dies, and no alternate beneficiary is named.

Then, gift becomes a part of the residuary gift.
Anti-Lapse Statutes
Gifts do not lapse when:
1. Lapsed gift was made to a party specified in statute (usually family members)
2. Deceased beneficiary survived by issue (kids).
Then gift goes to issue and does not lapse.
Trusts
Device for managing property whereby one person owns the property for benefit of another.
Name of person who creates trust?
Settlor
Name of person who has the benefit of the trust?
Beneficiary
- holds equitable title (no obligations)
- enforces trust
Name of person who has responsibility of managing the property?
Trustee
- holds legal title
Can grantor absolutely restrain alienation?
No
When is a partial restraint on alienation valid?
If it is for a
1. LIMITED TIME and
2. REASONABLE PURPOSE
Define Easement
Right held by one person to make use of another person's land.
Servient Estate
Land burdened by easement
Dominant Estate
Land benefited by the easement
Name of an easement tied to the land?
Easement appurtenant

Note: easement assumed to be appurtenant unless otherwise stated.
Name of easement benefiting the holder personally?
Easement in Gross. No dominant estate, only a servient.
Can an easement be created by implication?
Yes
Can an express easement be created orally?
No, Must be in writing.
Define Easement By Reservation
An easement created when a grantor conveys land but reserves an easement right in the land for the GRANTOR'S use and benefit. Nobody else.
Can a negative easement be created by implication?

What is the rule in MD?
NO. Must be in writing.

MD ALLOWS NEGATIVE EASEMENTS BY IMPLICATION.
When must implied easements be recorded?
When subsequent purchased had notice of easement.
Four Kinds of Implied Easements
1. Easement by Necessity
2. Easement by Implication
3. Easement by Prescription (Adv. Possession)
4. Easement by Estoppel
When is an easement by necessity created?
When property is virtually useless, w/o easement, only if
1. Dominant and servient estate owned by one person.
2. Necessity when estates were severed, AND
3. At SEVERANCE, property became useless w/o easement
Is an easement by necessity indefinite?
No. Only exists until it is necessary.
Easement by Implication

In MD, who bears the burden of proof to prove an easement by implied reservation?
Created by an existing use on a property:
1. When owned by one person
2. Before division, owner had a quasi-easement
3. Use must be CONTINUOUS and APPARENT at severance
4. Use must be REASONABLY necessary to dominant estate's use and and enjoyment

In MD, grantor has greater burden of proof b/c assumed to have greater knowledge than grantee.
Easement by Prescription
1. Continuous
2. Open and notorious
3. Hostile

Not required to be exclusive. In MD, SOL is 20 years.
Easement by Estoppel
If servient estate reasonably and in good faith relied on dominant estate's permission to use easement, servient estate owner cannot rescind.
If the terms of an express easement are ambiguous how dos a court decide the scope of the easement?
Court looks to the intent of the original PARTIES as to the purpose of the easement.
How are changes in use of an easement tested?
Under reasonableness standard. Courts presume the parties contemplated both its current use and future use, which means future use must be FORESEEABLE.
Is the holder of the dominant estate entitled to use the easement to access property acquired after the easement is created?
No
How is the scope of an implied easement determined?
By nature of the PRIOR USE or NECESSITY
Who has the duty to maintain the property subject to an easement?
The owner of the easement, unless parties agree otherwise.
Ways to Terminate an Easement
1. Release
2. Merger: when acquire fee title to underlying estate.
3. Abandonment
4. Prescription
5. Sale to a Bona Fide Purchaser
6. Estoppel
7. End of Necessity
How does a easement holder release an easement?
Must
1. Expressly release
2. Be in writing
Requirement of Abandoning Easement
Owner must act in affirmative way & show clear intent to relinquish.
- Requires more than non-use or statements
- Need non-use and an ACT demonstrating intent to abandon
Termination of Easement By Prescription
Holder fails to protect against trespasser for the statutory period.
Termination of Easement by Estoppel
When the servient owner changes position to his DETRIMENT in RELIANCE on statements/conduct of the easement holder that the easement is abandoned.
Define Profit
Right to enter another's land and remove natural resources. CANNOT be created by necessity
License
A revocable permission to use another's land.
An oral easement that is a mere privilege (a non-possessory right) to enter another's land for some delineated purpose. Do not have to pay for it.
Five Requirements for a Covenant to Run
1. Writing
2. Intent
3. Touch and Concern
4. Notice: actual or constructive.
5. Privity: horizontal and vertical

HEAVILY TESTED
How is intent for a real covenant to run with land exhibited?
"and his heirs and assigns"
How is it determined that the real covenant touches and concerns the land?
Burden and benefit must affect both the promissee and promisor as owners of land.
Define Horizontal Privity
When original parties to the promise had a privity of estate. Where the estate and covenant are contained in the same instrument.
Define Vertical Privity
Relationship between original party and the sucessor to the property. Relationship needed depends on whether successor is getting a burden or a benefit.
What type of vertical privity is necessary for a burden of a covenant to run to the successor?
Sucessor must take the original party's whole interest.
What type of vertical privity is necessary for a benefit of a covenant to run to the successor?
Successor need only take an interest that is carved of the original party's estate.
What is the remedy for the breach of a real covenant?
Damages
Equitable Servitude
Operates like a real covenant, but easier requirement because there is no privity requirement.
Requirements for a Equitable Servitude?
1. Must be in writing
2. Must have intent to run w/ land
3. Touch and Concern
4. Successor must have notice
What is a remedy for breach of an equitable servitude?
INJUNCTION ONLY
Implied Reciprocal Servitude
When not in writing, requires:
1. Intent to create a servitude on all plots in subdivision.
2. Must be reciprocal
3. Must be negative.
4. Successor must be on notice of restriction
5. Must be a common scheme
Termination of Implied Reciprocal Servitude
Changed Circumstances Doctrine: situations where restriction no longer makes sense due to drastic changes in the surrounding ares since the restriction was put in place
What type of defenses are also available for equitable servitude?
Equitable defenses. Like unclean hands and laches.
Riparian Rights

Does MD follow riparian doctrine?
Landowner who borders a waterway own the right to the waterway.

Riparians share the right to REASONABLE use of the water, liable to another for interference.

MD FOLLOWS THIS RULE
Prior Appropriation in Water Rights
First to use the water, regardless of location, has the rights to water. MUST:
- put water to a beneficial use, can be any productive use
And surface owner may make REASONABLE use of groundwater.
Lateral Support Rights
Neighboring landowner cannot excavate so as to cause a cave in on a neighbor's land
- If neighbor's surface building contributes: negligence
- If not neighbor's fault: then strict liability
Subjacent Support
Rights of surface landowners not to have their land subside from the activities of the owners of underground rights.
- if building existed when mineral rights were created: strictly liabile
- if building built after mineral rights created: negligible
When can a landowner be exempt from zoning laws?
Owner may request a variance from the zoning ordinance IF can demonstrate that ordinance imposes UNIQUE hardship.
Vested Rights in Zoning
If building project was started in good faith before the change in law, exempt from zoning ordinance
What if use lawfully existed before zoning existed but violates it once ordinance is enacted?
Most jurisdictions permit it continue, but prohibit expansion of non-conforming use.
Private Nuisance
A substantial and unreasonable interference with another individual's use or enjoyment of his property.
Public Nuisance
Unreasonable interference with healthy, safety, or property right of the community.

Distinguish from Private: in pvt. person shows suffered a different kind of harm than the rest of community
Remedies for Nuisance
Damages.

But if inadequate or unavailable court can impose injunctive relief
IN MD, if premises is destroyed by nobody's fault, who pays?
Tenant is excused if lease was for less than seven years.
In MD, what must a tenant do if landowner is in breach of any of the covenants?
Must establish a rent escrow and pay into it. Does not apply to farm tenancies.

In ADDITION, tenant may simply withhold the rent and raise the landlord's failure to maintain the premises as an affirmative defense.
Restrictions on use of security deposit by landlord in MD
1. Limited to two months rent
2. Can only be used upon an itemization of the damage
3. Any unused portion must be returned to a tenant who DEMANDS it after 45 days.
4. No late fee can exceed 5%.
Remedy if landlord abuses security deposit in MD?
Landlord is subject to treble damages
Remedies provided to landlord to a lease in MD, aside from security deposit?
Landlord can retake premises or release the premises. But are not permitted to self-help. Must sue for summary ejectment action, as soon as due-date passes.
In MD, when can a buyer take title of property in an installment land sale contract?
After buyer pays 40% of the purchase price.
In MD, rule for surface water use?
Allowed reasonable use of water. Domestic use more important than commercial use.

Should not make changes to natural flow, that cause unnecessary harm.
When must the life tenants pay taxes, insurance and interest on mortgage?
Only required to pay to the extent the property produces income.
If there is a mortgage on the life estate, who is responsible for the mortgage and the interest payments on the mortgage?
Life tenant is responsible for interest of a mortgage on life estate, whereas remainderman is responsible for mortgage.
If a life estate is not producing income, is the life tenant responsible for taxes and mortgage interest?
Yes, still responsible, to the extent of the reasonable rental value of the land.
Is a co-tenant required to share profits earned from the use of property, such as business conducted on the property?
No, generally not required.
How are a concurrent estates' entitlement to natural resources divided?
Divided in proportion to the share of the co-tenant's share.
What are the fiduciary duties that co-tenants owe each other?
No fiduciary duties among co-tenants. Owe duty of fair-dealing.

However, some tenants' who become co-tenant's at the same time (joint tenancy) can have fiduciary duties such that if one co-tenant buys back his property at a tax or mortgage foreclosure sale, the other tenants can reacquire the original interests by paying their due contributions.
Can a holder of a future interest who shares that interest with another maintain an action for involuntary partition?
No, because that holder does not have the right to immediate possession and cannot maintain an action for involuntary partition.
What is the difference between a remainder and an executory interest?
Both interests in 3rd party. A remainder "waits patiently," only becomes possessory upon the culmination of the prior estates fixed duration, whereas an executory interest cuts a prior estate short upon the occurrence of a specified condition.
Can a remainder follow a fee simple?
No, a remainder ends after a duration, there is no duration to a fee simple. The only 3rd party future interest that follows a fee is an executory interest
Can you transfer remainders and executory interests?
Yes, vested remainders are always transferable, Executory interests and contingent remainders are transferable in most jurisdictions.

Note: Creditors are also allowed to reach any transferable interest.
Is an oral rescission of a land sale contract valid?
Yes, in a majority of states an oral rescission is permitted.
What is the default rule for whether "time of the essence" is read into land sale contracts?
Court assume's that it is not in real estate contract. A party that fails to render performance on the date set for closing in the contract will be in breach and liable for damages in an action at law.
Does the inability of the seller to produce marketable title automatically create a breach?
Does not automatically create a breach. The buyer must give the seller sufficient time to cure the title defect.
What is the effect of a contracting party dying in a land sale contract before the performance date?
Seller's interest may be treated as personal property and the buyer's interest may be treated as real property interest, for the purposes of distribution.

Seller's devisee of personal property is adeemed. In anti-ademption, then receive sale proceeds.
When are creditors protected when they file a judgment lien?
Protected only if claims arise after judgment lien is recorded. In most jurisdictions, creditor likely to not be protected against an earlier interest even if unrecorded.

Majority of jurisdictions protect purchasers of property at a judicial sale against all unrecorded interests subject to the recording act.
Wild Deed
An instrument that is recorded and indexed in the recording office, but not recorded in such a way as to give notice to subsequent purchasers. If not in chain-of-title then subsequent purchaser not held to prior unrecorded conveyances.
Where a deed is recorded late, and a subsequent purchaser has no knowledge of original conveyance and the seller had knowledge of original conveyance, seller's knowledge flow to subsequent purchaser?
No. If subsequent purchaser has no notice the original conveyance is outside the chain of title.
If order of abatement is not stated, what is the order of abatement to pay creditor's claims, funeral and administration expenses?
1. Property not devised by will
2. Residuary devises
3. General devises
4. Specific devises
Permissible Restraints on Alientation
1. Limited in time and purpose.
2. Right of First Refusal
3. Restrictions on the transfer of a lease
4. Restraints in commercial transactions when restraint is basis for parties' contractual obligations.
In MD, under what conditions can a joint tenancy sever?
MD is a title theory state:
1. If fewer than all joint tenants grant a mortgage or lease;
2. Upon conveyance by all joint tenants (profits distributed)
3. When the option of an option contract granted by fewer than all joint tenants is exercised.
If a property is acquired by adverse possession by husband and wife, does that create a tenancy by entirety?
Generally, no. In MD, no.
In MD, what obligations does a tenant whose lease contains a duty of good repair provision have?
Tenant is not required to build a new building or pay for a building that was destroyed, unless the tenant's negligence or other fault contributed to negligence.
In MD, may a landlord include provisions in residential leases that waive the tenant's right to a jury trial or statutory rights?
No. Such provisions are unenforceable.
In MD, what are the exceptions to the duty to pay rent for military personnel and those on medical leave?
Upon proper notice to landlord:
- the duty to pay rent is specifically limited to 1 month after military member is activated for more than 3 months.
-limited to 2 months when a tenant is forced to leave for medical reasons
What is "warrant of restitution" and how is it used in MD?
Device that gives the landlord the power to evict. In MD, if tenant has not moved out in the time ordered, landlord can seek warrant, and arrange for eviction with officer present as an officer of the court. If landlord does not seek warrant in 60 days of judgment for possession, then judgment stricken.
How can a tenant in MD who is subject to an eviction order stay at his premises?
Pay all past due rent and late fees, plus court-awarded costs and fees, in cash, certified check or money order before eviction.

Lose this right if 3 or more judgments of possession for rent due and unpaid entered in 12 mos. prior to eviction.
When are MD tenants protected against retaliation?
1. If they file a written complaint
2. If they file a lawsuit against the landlord
3. If they are member or organizer of a tenant's org.

Tenant may get attorney's fees and court costs if judgment is for the tenant on basis of one of the above defenses.
When does an MD tenant lose its protection against retaliation from landlord?
1. In monthly tenancies, if 4 or more judgments against the tenant in the 12 mos. preceding the filing of action.

2. In weekly tenancies, if there have been 6 or more judgments in 12 months before action.
What is the MD rule for the duty of a landlord to give a tenant possession?

What remedies are available for a MD tenant who cannot take possession?
In MD, landlord req. to give possession of premises in the beginning of the lease term.
- Tenant does not owe any rent until possession
- Tenant may cancel lease, by written notification
- Landlord must return any deposits if lease cancelled.
- Consequential damages, w/ tenant duty to mitigate
When are indemnification clauses regarding liability for negligence between landlord and tenant enforceable?
When in commercial leases and to the extent that the common area is within the control of the tenant.

Ct. can order a levy on goods on the lease premises, regardless of whether the goods are property of the tenant or of some other person.
When and where can an action for distress be filed in MD and what remedies is a landlord entitled to from an action for distress?
May be brought ONLY for unpaid rent under written lease of > 3 mos or a tenancy that has continued for > 3 mos. In the district ct. of the country in which the property is located.
- Goods related to work of tenant exempt from distress
- If tenant fails to file an answer w/in 7 days after a levy is made, the court may issue an order for sale of goods.
In MD, is an adverse possessor required to pay taxes on the property?
No.
What is an equitable lien? And does MD have it?
An equitable lien is created when there is INTENT to create a security interest in real property but the necessary documentation is defective.

MD courts recognize that the holder of the putative security interest has an equitable lien, which can be treated as a valid security interest.
In MD, may a creditor bring two suits against a debtor of mortgage? One against the promissory note and another against the collateral security?
Yes. Can bring suit against debtor for promissory note obligation even though the collateral security is being foreclosed SO LONG AS creditor's total recovery from the two actions does not exceed the amount owed to him.
In MD, what deed formalities must be followed for the deed to be valid?
Properly:
1. Executed
2. Acknowledged: grantor must appear before notary and certify that deed is grantor's act.
3. If required, recorded.

Any defect or failure to comply has no effect if no action is brought on these grounds six months after deed is recorded.
Does a deed need to be sealed in MD?
No. But doing so extends the statute of limitations for contract claims from 3 to 12 years.
When does a lease need not be recorded in MD?
A lease for a term of seven years or less.
What is the MD rule for protection of creditors when they file judgment liens?
Creditors are protected only against claims that arise after a judgment lien against the debtor is recorded, but are not protected by MD's recording act. Must file a judgement lien to be protected.
How are conveyances and encumbrances recorded in MD?
All MD counties use grantor-grantee index. City of Bmore uses a tract index system because it is its own entity apart from any county.
Does MD recognize future interest holders who are unborn?
No, MD recognizes all future interest holders WHO ARE ALIVE. Such interest holders are presumed to be able to sell, lease, or mortgage the property.
In MD, is a purchaser subject to a lease, if a lease has not been recorded, but the purchaser of land has notice of a tenant?
Yes. Subject to terms of a valid lease if have notice.

NOTE: different from standard race-notice statute.
What rule does MD follow for compensating persons who make improvements to real property belonging to another?
Majority rule. Entitled to expenses or inc. in value if:
1. Person reasonably believes that she is true owner.
2. Person occupies the land
3. Improvement inc. value of real property.

If landowner knows and encourages or influences work then landowner must pay full compensation.
In MD, when can an easement in mineral rights be implied?
ONLY implied if doing so is reasonable and necessary.
What is the MD prescriptive easement theory for creating public roads?
A public road will be created if:
1. Landowner does not offer road for public use.
2. But allows public to use land as a road
3. Public uses road for 20 years.
- Use need not be heavy, but must occur w/o permission.