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91 Cards in this Set
- Front
- Back
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To create a JT (or a TE)
PITT |
4 unities must exist to support the fiction that the coT are holding the property as if they were one (PITT)
P. Unity of possession; i.e. each coT has an undivided common rt to possess the entire property I. Unity of interest; i.e. each must have the same identical percentage of interest as to the quality and quantity of title T. Unity of Time; i.e. each must have acquired their interest at the same time T. Unity of Title; i.e. the rts of each must have been created by the same deed or will |
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A TE is defeated by the 4 Ds
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D. Death of one’s spouse whereby 100% interest in the land passes to the surviving spouse
Simultaneous debt of both H and W defeats the survivorship element and property held as JT or TE will be distributed as if it was held as a TC D. When one spouse becomes a debtor in bankruptcy Fed ct can sever NY real property law. D. Dual transfer in which both H and W take part (gift, sale or partition action) D. In MBE Divorce or annulment, or in NY DADS judgment DADS (divorce, annulment, dissolution or separation judgment) A valid NY or bilateral sister state DADS judgment decree converts the property to a TC because a valid marriage is a continuing condition for the existence of a TE |
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Real Property K
Caveat Emptor |
Requires a B to take care and diligently inquire into the structural and environmental condition of the property and neighborhood before entering the real property K
Leaking roofs, seeping seaspools, ferocious fleas, water and fire damages and prior crimes on the property have been the subject of caveat emptor and thus were not required to be disclosed by the S The CE Doctrine precludes a claim for recession for structural and other defects that were 1) open and obvious 2) discoverable by reasonable inspection of either the premises or public records and the purchaser had an unimpeded opportunity to inspect and/or 3) not concealed or hidden by the silent seller |
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Real Property K
Caveat Emptor broker's duty to disclose |
A broker has a duty to disclose known facts materially affecting the property
BY NY statute there is no duty for the broker to disclose that a death, homicide, or other crime occurred on the premises or that a prior occupant had AIDs |
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Real Property K
Caveat Emptor Seller's misrepresentations or fraudulent concealment |
A S who makes misrepresentations or fraudulently conceals defects may not rely on caveat emptor
A misrepresentation is defined as a conduct or statement that is not in accord with the facts Ex. Response lead person to believe that basement would not flood. i.e. when B asks, does it flood and seller says “I have marketable title, bring your engineer” → this is a misrepresentation CONTRAST Ex. But if issue is sex offender next door – this info is publicly available even tho S doesn’t give that info → this is caveat emptor Fraudulent concealment; Ex. Replacing the tiles simply to defraud B or hiding termite damage with furniture |
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“as is” clause
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A “as is” clause in a real property K is another hurdle for a purchaser complaining of an existence of structural defects, physical or environmental condition of the property – it expressly states that the B is to inspect the quality, fitness and value of the property before signing the K and that B has not relied on any representations by S
HOWEVER, An “as is” clause will not shield S for a claim for fraudulent concealment Note: Always include “as is” clause as a S |
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Statute of Frauds
Exception Part performance of an oral real property K |
Cts will consider 3 types of performances by the purchaser which must unequivocally refer to an agreement to transfer the realty
P. Payment of the purchase price in whole or in part I. making valuable improvements P. Taking possession In NY, it is almost impossible to achieve PIP part performance sufficient to take oral real property K out of the Statute of Frauds. B’s performance alone must unequivocally refer to the sale of realty without resort to oral testimony |
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Real Property K
TERMS OVERVIEW |
THE SIGNED real property K must contain ALL of the material elements.
i. That is it must name B and S ii. Sufficiently describe property and iii. State the purchase price (missing price will nullify the K even tho it was signed by the party to be charged) |
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Merger doctrine
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Under the merger doctrine, the covenant of marketable title merges in the deed when the S delivers the deed to the B at the closing
Absent fraud or mutual mistake, when the B accepts the deed, the S title obligations under the K are discharged, thereafter, a B’s rts are based solely on the warranties if any, contained in the deed Merger does not apply to S’s collateral Ktual obligations that do not relate to possession, quality, or quantity of land |
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Equitable conversion
Generally |
When real property K is signed that equity would specifically enforce, equity converts S’s interest into personal property and treats B as the title holder the moment the K is executed
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Equitable conversion
If the B or S dies MBE and NY |
If the MBE B or S dies equitable conversion effects a bequest of real property passing in the will
Ex: X has a will that says when die, real property passes to A and personal property passes to B. X enters K to Y to sell property. Equitable conversion, that in the eyes of equity, when entered K today, because X and Y could both enforce K, its already done and closing is a formality. When X die with Blackacre and entered into K with Y, X literally die with his cash and rt to Y’s cash and no rt to real property. Equity treats as done what is treated to be done In NY, if a testator enters a K to sell realty, the K is not revoke a prior disposition in T’s will in that property. Such real property passes under the will to the named beneficiary subject to the executory K Example. If X and Y had K to sell Blackacre. X had conveyed Blackacre to B, brother. Then when X dies, Brother gets the proceeds from the sale of Blackacre to Y |
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Equitable conversion
MBE judgment creditor |
If the MBE judgment creditor files a judgment after the seller has signed a contracted sale, it does not attach to the seller’s interest which equity now considers only personal property
If the judgment is recorded against the B then the lien attaches to B’s converted real property interest even though B has not yet officially taken the deed |
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Equitable conversion
Risk of Loss MBE |
If the MBE real property is damaged or taken by imminent domain during the executory K period without fault of either party, then absent a contrary statute for specific K language, risk of loss is on the MBE buyer
there are several exception MBE equitable conversion risk of loss rule 1) the destruction was the S’s fault 2) the sellers title was defective and S could not have tendered marketable title at the closing 3) K subject to condition that was not satisfied thereby excusing B from the K |
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Equitable conversion
Risk of Loss NY |
Under the uniform vendor and purchaser risk act (incl NY, but not NJ or MA) even tho the equitable title passes to B when the K is signed, by statute, risk of loss remains with S who is in the best position to have insured against the loss or damage to that property.
Under this act, risk of loss does not pass to the B until 1) title passes at the closing or 2) the B takes possession prior to closing If prior to closing, NY property is materially destroyed by no fault by either party or a material part is taken by imminent domain, the seller may not enforce the real property K and the B may rescind it The B may enforce the K, with an abatement in the purchase price If only an immaterial part of the premises is damaged or taken then the K still is enforceable by either party with an abatement in the purchase price i.e. tree fell on the house and 25,000 damage on a 1 million dollar house. This is small. |
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Property Disclosure Act
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NY traditionally abides by caveat emptor
In NY and many states, however, the S of an existing residential dwelling of 1 to 4 units shall deliver a disclosure statement answering 48 questions on the condition of the realty based on the seller’s “actual knowledge” Failure to do so affords the NY buyer an automatic $500 credit at the closing |
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Implied Warranty of Habitability
MBE NY |
New residential construction carries an implied warranty of habitability from the builder
MBE: In most states it does not extend beyond the 1st purchaser who is in privity with the builder, NY: extends warranty protection to successors in title during the warranty period |
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Time of closing
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The closing is where the deed is executed and delivered by the S and the B tenders payment
Failure to tender the type of payment called for in the K constitutes a material breach of the K If the closing date is fixed in the K, it is only a tentative or target date 1. Failure of either party to close on that date is not a breach 2. Both parties are afforded a reasonable time, even beyond the K’s closing date to perform their respective obligations unless the K is expressly made “time of the essence” A material breach arises if either party is not ready to tender performance when the closing date is time of the essence The parties to a real property K need not specify a closing date because the ct may infer reasonable time |
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Time of closing
Extension |
Where 1 party request an extension of the original closing date, the other party may select a new closing date and make it “time of the essence”
The notice must 1) Provide a reasonable time to close 2) Be clear and unequivocal as to specifically warn the other party that its failure to close will render it in default and liable for damages Merely stating that “time is of the essence” is insufficient. Notice must be given that failure to timely close will put the other party in default In order to hold a party in default, the nonbreaching party must be able to demonstrate that it was RAW (ready, able and willing to comply with the K terms) |
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Real property ethics
Escrow |
All client funds held by an atty shall be held in a separate escrow acct in a NY bank
The atty must retain detailed escrow records for 7 years If deposited money paid by the buyer is embezzled by the escrowee, then risk of loss of the deposit is on the party who owned the money at the time it was converted Escrow checks may not be made to cash and only an atty admitted to NY can sign them If a L’s fee is not paid, the L has a retaining lien on client’s file and a charging lien on any amts recovered by the L’s efforts, however, the L may not assert a lien on C money held in escrow |
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Real property ethics
if a B deposit is NOT substantially large amt or it is to be held for only a short period of time so as to generate less than $150 in interest |
NY requires that if a B deposit is NOT substantially large amt or it is to be held for only a short period of time so as to generate less than $150 in interest, then it shall be deposited by the S’s atty, into a NY IOLA acct (Interst on Lawyer’s acct) which every NY lawyer who hold client’s funds must open
The interest earned on such accounts is used for funding legal services for indigents IF L’s IOLA check bounces for insufficient funds, the bank must notify the Appellate Division grievance committee |
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Real property ethics
A L may not represent a new C whose interest is adverse to a former client if 1 or 2 |
The new matter substantially relates to the prior representation or
The matters are totally unrelated but the atty possess confidential information obtained from the former representation that could now be used to the disadvantage to the former client or the advantage to the new client |
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Real property ethics
1 L may represent both B and S or realty, but only in very limited circumstances where there is little or no actual adversity between the parties |
both clients must consent after full disclosure of the disvantages and risks involved
if a dispute arises between B and S, the L must withdraw from further representation from either party A L is subject to discipline for failing to decline legal employment if the exercise of her independent, professional judgment, on behalf of the client is likely to be adversely affected by a conflict of interest |
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Real property ethics
Advertising and foreclosure |
A L may not advertise that she can “stop” a forseclosure
1. This is false and misleading 2. The AD mus be mofidifed by a disclaimer that prior results do not guarantee a similar outcome |
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Real property ethics
A L may enter a transaction for real or personal property with a C if |
A) the terms must be fair and reasonable
B) the terms must be fully disclosed to the client in writing in a manner that can be easily and reasonably be understood by the C C) the C must be advised to seek the advice of independent counsel and D) the client must consent in a signed writing to the fully discosed terms and to the lawers inherent conflict in the transaction |
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Real Property Deed
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Generally. A Deed is a written instrument, signed and delivered by a grantor to convey title to real property
The S must sign the deed and his signature must be acknowledged by a notary in order to record the deed with the county clerk An instrument recorded without any acknowledgment or a defective acknowledgement is NOT sufficient to give constructive notice of its content to a subsequent bonafide purchaser (BFP). |
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Forged Deed
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A forged deed is VOID and conveys NO TITLE
To lie about the authenticity of a doc which purports ot contain the signature of another constitutes the cirme of forgery If the forgery is successful and D receives property or money as a result then D commits the crime of larceny by false pretenses There can be no BFP by a forged deed. Any new interest created in the realty after a forgery are a nullity and title remains as it was before the forgery b. If grantee of forged deed adversely possess the property for the prescribed period of time, that continuous possession may ripen into title not from the forged deed but from the adverse possession for the statutory period of time |
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Delivery of deeds
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To constitute valid delivery to the grantee the grantor must intend to pass title immediately to the grantee and the grantor must give up dominion and control over the deed
A deed not properly delivered is a nullity even if it recorded by the grantee Can't pass conditionally |
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Delivery of Gift deeds
AID |
IF the deed is a gift the AID gift elements must be established
A. Acceptance by the donee which is generally implied if the conveyance would be beneficial to the grantee (Can be rejected) I. Intent to make an immediate gift D. Proper delivery of the deed that puts the instrument out of the dominion and control of the grantor Once there has been an effective delivery and acceptance, its subsequent oral cancellation, deliberate destruction, or even redelivery back to the GOR will NOT revest legal title in the GOR |
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Delivery of Gift deeds
AID D. Proper delivery of the deed that puts the instrument out of the dominion and control of the grantor |
When the GOR intends to surrender title immediately upon delivery the law will recognize an escrow delivery to an agent for redelivery to the donee
If the escrow agent is the donor’s agent then the delivery is not complete until the deed is actually delivered to the donee, thus if the donor dies, becomes mentally disabled, or changes her mind before delivery to the donee, then the agent’s authority is revoked under agency law However, if escrow delivery is to an independent contractor or made to the donee’s agent, then the gift is effective immediately upon delivery to the agent Escrow delivery to a 3rd person for delivery upon GOR death (death escrow) is treated as vesting an immediate interest in the grantee when the 3rd person receives the deed provided GOR surrendered all rights to the deed to the escrow agent |
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No gift cause of mortis of delivery
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A deed delivered directly to GEE which is orally conditioned on the GOR death is void because the deed is then testamentary in intent and does not satisfy the statute of wills
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Corrective deeds
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The customary method of correcting an error in a delivered deed is for GOR to execute and deliver a new corrective deed in the form originally intended (ex. May use wrong name, wrong GEE on deed, go to GOR ask for Corrective deed)
The Sellers refusal to issue a corrective deed breaches the covenant of further assurances if such a covenant was given in the 1st deed. The remedy is to sue for reformation If a GEE is omitted on a deed or the extent of his interest is misstated, all grantees otherwise adversely affected by the corrective deed must join in its execution |
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Quick Claim deed (release deed)
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A quick claim deed is a simplest of all deeds.
Generally i. The GOR covenants only to convey whatever interest he may have. ii. He simply states he is quitting any claim he has to the land If a K makes no mention to the type of deed to be delivered at the closing, then ONLY a quick claim deed need be delivered If the K calls ONLY for a quick claim deed, S title must nevertheless be marketable. However, if the B accepts the deed without objecting to the title, then under the merger doctrine the GEE thereafter may only look to the deed for a remedy since Quick claim deed contains NO warranties, the GEE could no longer object to the title defect |
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Special warranty deed (MBE)
“bargain and sale deed” (NY) |
A special warranty deed containing a covenant against the GOR’s acts, during the GOR’s period of ownership, which covenants only that the GOR has not encumbered the marketability during his ownership period
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General covenant and warranty deed (aka warranty deed or full warranty deed)
SEC |
Generally
1. The SEC covenants are present covenants which are breached, if at all, when the deed is delivered. 2. The SOL for the their breach begins to run from when the deed is delivered 3. Made only to GOR immediate GEE and are NOT intended to run wit hthe land to future GEE S. Covenants of seisin, which covenants the GOR possesses the quantity and quality of the land he purports to convey. E.g. He owns 2 acres NOT just 1; he holds a fee simple, and not just a life estate; no a coT with a unnamed 3rd person E. Covenants against encumbrances, covenants that no 3rd person has any interest that would diminish property’s value except as expressly stated in the deed C. Covenant of the rt to convey. Covenants that the GOR has the rt and authority to convey title |
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General covenant and warranty deed (aka warranty deed or full warranty deed)
FEW (Generally) |
Generally
1. The FEW GEE may recover atty’s fees as expended in a 3rd party suit but only if she loses title or pays to remove the title flaw 2. If she wins, she cannot recover because the FEW covenant of quiet enjoyment was never breached as the GEE was NEVER ejected 3. Under the doctrine of horizontal privity, these FEW real covenants extend to all SUBSEQUENT GEE, i.e., that is, they run with the land whenever it is reconveyed and the new owners may sue the original GOR of the full warranty deed 4. FEW SOL begins to run only when a GEE rt is first interfered with |
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General covenant and warranty deed (aka warranty deed or full warranty deed)
FEW |
F. Covenant of further assurances. Covenant that GOR will execute any docs needed to clear the title for any subsequent GEE
E. Covenant of quiet enjoyment. Promises that the GEE possession will not be disturbed and if it is, the GOR will pay damages for the disturbance. This covenant is breached when any future GEE is actually ejected from the property by a 3rd person with superior title W. Covenant of warranty. Covenants the GOR forever warrants and will defend from legal attack the title as it is described in the deed |
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DAMAGES for breach of SEC FEW covenants
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Liability for breach for an SEC FEW covenants is limited to actual out of pocket restitution damages which CANNOT exceed the purchase price received by the GOR of the warranty deed
The measure of damages is the difference 1. in the lands value as described in the deed AND 2. The reduced value of the land as encumbered Subsequent improvements made on the realty as well as any appreciation in the land’s value are NOT recoverable |
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Estoppel by Deed
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Where a GOR, who does NOT have full title, signs a deed purporting to convey MORE than she owns, she is liable for breach of the covenants contained in the deed.
a. However, if she later acquires part or all of that title, she is estopped from asserting any subsequent rts to the title. b. Most cts hold that no action is necessary by the GEE and treat the title as automatically passing This is also referred to the “after acquired title theory” Ex. H and W own blackacre as TE (T by the entirety). H forged W’s signature and conveyed Blackacre to B. What is B’s interest? i. If H dies before W, B gets nothing. ii. But if W dies first, then B gets 100% of Blackacre under the estoppel by deed theory Estoppel by deed does NOT apply if the GOR 1st deed was simply a quick claim deed |
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Recording Statutes
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Once an intrusment affecting an interest in real property has been signed, the signatures have been acknowledged by a notary, and the doc delivered, the GEE of that interest should IMMEDIATELY record it at the county clerk’s recording office to put the world on constructive notice of that interest, in case the GOR subsequently attempts to convey away or encumber same property
Recording the instrument provides constructive notice and warns subsequent persons of the GEE existing interest in the property Once the interest is recorded, any subsequent created interest in the realty takes subject to the earlier recorded interest |
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Failure to Record
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Recording the deed is not required for the deed to be effective, but if the GEE fails to record, the GEE may lose her interest to a subsequent BFP,
in order to prevail over a prior unrecorded interest, the subsequent purchaser may 1, 2, 3 1) ACT IN GOOD FAITH IN ACQUIRING subsequent interest 2) Pay some new consideration or part with some value or rt and 3) must receive her interest without CIA notice (constructive inquiry or actual notice) A subsequent BFP that has a superior interest over a prior unrecorded interest may transfer that BFP status to future GEE who otherwise would not qualify as BFP. Under the shelter doctrine, these future GEE prevail over the prior unrecorded interest even if they took without value or with notice of the prior unrecorded interest |
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CIA Notice
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C. Constructive notice
Refers to notice provided by all prior recorded docs in property’s chain of title Purchasers have a duty to search chain of title for any recorded interest and are deemed to have constructive notice of any docs previously recorded I. Inquiry notice Arises where acts exists that would excite suspicion of a reasonably prudent person (RPP) and cause the RPP to further investigate and inquire as to a 3rd person’s possible interest in that realty Failure to make reasonable inquiry is negligent and will defeat BFP status A. Actual Notice To the subsequent purchaser either orally or in a doc at the closing |
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Notice statute
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Gives priority to a subsequent BFP over a prior unrecorded instrument provided that at the moment taking the second instrument, that BFP had no CIA notice of the earlier interest
Thus even if the 1st GEE is the first to record, but she records only AFTER the BFP took his subsequent interest for value without notice and in good faith then the subsequent BFP will nevertheless prevail under the notice statute Note: the last one ot take without notice gets Blackacre |
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Race notice (NY)
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Priority is given to a subsequent BFP who at the tIme took the instrument, had no CIA notice of the prior unrecorded interest and is the 1st to record
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Race Statute
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For a race statute, neither CIA notice nor good faith are relevant because priority is based solely on who was the first to record
Subsequent purchaser for value who is the first to record prevails even tho there was inquiry or actual notice of the earlier recorded interest |
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Chain of Title
Collateral Document Rule |
The term Chain of Title describes the history of all the recorded docs which can be found by searching back in the history of the property in the county clerk’s office
These docs recorded in the property’s chain of title provide constructive notice to any subsequent purchasers Under the collateral doc rule, a purchaser is charged with constructive notice of instruments recorded in any adjacent property’s chain of title where contiguous properties were formally held by a common owner However in about half of the jurisdictions incl NY, there is NO duty to search the chain of title to any adjoining lands formally owned by a common owner |
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2 types of indexes for recording purposes
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Grantor-grantee index which uses names of the parties as an indexing method. The recording clerk alphabetically files docs for each type of land transaction according to its nature. (Search by name, if a conveyance is not recorded, subsequent purchasers have no notice)
Tract or parcel index which records and traces in sequence in time all the transactions on that parcel of land |
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Adverse possession
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AP permits a trespassers possession to ripen into ownership through the passage of time.
In the overwhelming maj of states, the APr’s state of mind is IRRELEVANT and the APr need not possess the land under a claim of rt. Thus a mere squatter may obtain MBE title tho he has no claim of rt and no subjective belief in ownership NY now requires an objective, good faith claim of rt Each Jurisdiction has its own SOL for ejectment after which time the actual owner’s cause of action for ejectment will be barred if trespasser can establish title by AP |
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Adverse possession frequently benefits a possessor who lacks title or who has defective title because of 1, 2, 3, 4, or 5
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1. Deed was forged or never signed
2. Deed that was improperly delivered 3. There was a mistake in taking possession 4. Neighbor who intentionally or mistakenly encroached on the property 5. The delivered deed was lost and never recorded |
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Adverse possession
Title |
The title gained by AP usually is the same interest held by the former owner (e.g. A life estate or fee interest)
APr takes the property subject existing easements, mortgages, future interest and covenants that burden the land An existing easement, covenant or profit may be extinguished by the APr possession but only if it was in fact hostile to those interests Merely ordering the APr to get off the land does not interrupt his period of AP. The owner must commence an ejectment action within the AP SOL. |
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Adverse possession
Elements EUNUCH |
ix. Because the acquisition of title by AP is NOT favored by the law, the following elements must be establishd by clear and convincing evidence. EUNUCH
E. Exclusive possession not shared with the owner. i.e. that is, the APr alone must care for the disputed property as if it were his own. APr will be credited with the time his tenants, or others who occupy the land at his behest U. The owner was under no disability (infancy or mental disability) when the AP began and the owner could have sued to eject the trespasser N. Notorious and open possession that would put owner and neighbors on notice that there is a trespasser on the land and that the owner has a cause of action for ejectment. Ex. possessing, cultivating enclosing or improving the land U. UNDER a good faith claim of rt (NY ONLY) C. Continuous and uninterrupted actual possession H. Hostile Possession (HP) |
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Adverse possession
EUNUCH If EUNCUH elements satisfied |
Once AP satisfies the elements EUNUCH for the statutory period, title vests in the AP by operation of law
This title is no longer dependent upon continued EUNUCH and cannot be lost by abandonment or OPA When 2 or more people, even H and W, adversely possess, they take as TIC (Tenants in common) with no rt of surviorship |
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Adverse possession
Elements EUNUCH U. UNDER a good faith claim of rt (ONLY NY) 1/2 |
For all NY AP claims, commenced on or after July 7, 2008, the APr must demonstrate he took possession with an objective, good faith belief that he owned the land. i.e. that is, a reasonable basis for the belief that the subject property belongs to her
Thus if the evidence introduced at trial does not support the APr’s belief that the land belong to her, or the facts state that she knew the land was not hers, she cannot establish AP in NY unless the true owners identity could not be ascertained in the land’s chain of title Ex. APr given forged deed or some type of defective deed that APr believe was good, |
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Adverse possession
Elements EUNUCH U. UNDER a good faith claim of rt (ONLY NY) 2/2 |
Also, NY AP claims may not be based on de minimis non structural encroachments, e.g. sheds, fences, birdhouses or shrubs
NY provides that lawnmowing, planting shrubbery, landscaping and other acts of maintenance on another’s land are now deemed permissive and NOT ADVERSE CONTRAST w/ MBE because cultivation, enclosures is AP If the NY AP began prior to July 7, 1998, and title by AP vested prior to July 7, 2008, then the new law would not retroactively revoke the vested title |
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Adverse possession
Elements EUNUCH C. Continuous and uninterrupted actual possession |
Seasonal use of a vacation property is sufficient to meet the AP elements as long as the use put the true owner on notice of that use. Ex. A has Hamptons property. D has been adversely possess 3 months out of the year (summer) for years and this is still AP
It is not necessary that the same person be in possession for the entire AP period Tacking allows 1 AP to tack on the time of a previous AP provided there is privity of estate between the 2. Ex. Someone there for 6 years and gives quick claim deed to a relative and they are there for 5 years. True owner comes and says get out. And predecessor there for 5 + 6 therefore 11 years |
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Adverse possession
Elements EUNUCH C. Continuous and uninterrupted actual possession Doctrine of constructive possession |
Under the doctrine of constructive possession, a possessor who has a written, colorable title or deed to an entire parcel but only occupies part of it, is regarded as being in possession of the whole parcel
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Adverse possession
Elements EUNUCH C. Continuous and uninterrupted actual possession Footprint doctrine |
If APr claim is not based on a written instrument, then under the footprint doctrine only that portion actually occupied is adversely possessed.
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Adverse possession
Elements EUNUCH H. Hostile Possession |
HP towards owner’s title and not necessarily the owner
Hostility may be presumed if the other elements are satisfied but this presumption does not arise where the parties have a close or familial relationship Hostility exists where the possessor openly occupies the land without OPA 1) O. offering to buy land the land from O 2) P. asking O’s permission to use the land and 3) A. acknowledging to anyone that the title is in O Any kind of possession undertaken with the O’s permission will defeat AP HP does not begin to run until such permission has been repudiated and the possession assumes open hostility to any rt of the true owner |
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Problem: 7 years ago, D built a motel. Because of an erroneously drawn survey, the building mistakenly encroached onto P’s adjoining land. P commenced a NY action demanding possession.
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1. The ct here noted that D had not established AP for 10 years. However, where an APr’s trespass was not intentional, the ct may balance the equities and relative hardship to both parties and order money damages where it would be inequitable to require removal of the encroachment. The ct in its equitable discretion may award money damages in the amt of the difference in P’s land value before the encroachment and the value after it. Where the encroachment is 6 inches or less, the effected landowner has 1 year from compeltion of the building extension wall to sue for an injunction. Thereafter, only money damages may be sought
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Easements
Definition |
An easement is a rt to use another’s property for a specific purpose; e.g. for example to gain access to a public road or a body of water
An easement is considered a unique real property interest that may be protected by an injunction An easement is distinguished from a license which is a PERSONAL, NON ASSIGNABLE USE, revocable at the GOR’s whim Easements consist of both a dominant estate, which is the land benefited, and a serviant estate, which is the land burdened by the easement over which the easement runs The dominant estate has the duty of maintaining, repairing, or rebuilding the easement Where there is an easement in common, the burden of maintenance and repair is imposed on ALL users A subsequent purchaser of a serviant estate takes the realty subject to any easements over that land over which there was CIA notice |
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Affirmative easements.
PIGS |
Most easements are affirmative easements which grants a privilege for someone to affirmatively use the land for a specific purpose
AE maybe created by PIGS P. Easement by prescription I. Easement by implication which is an easement implied by a prior common owners apparent preexisting use of the dominant and serviant estates. G. Easement by grant. Easement created in a signed writing S. Easement by Strict necessity which arises when a common owner subdivides the land leaving one parcel landlocked without any access to the public way |
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Affirmative easements.
PIGS P. Easement by prescription |
Similar to AP, but to establish an easement by prescription, one merely uses another’s property for the statutory period without the owner’s permission
The use does not have to be exclusive as it does for AP NY also requires a good faith objective believe in the rt to use the land |
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Affirmative easements.
PIGS I. Easement by implication |
I. Easement by implication which is an easement implied by a prior common owners apparent preexisting use of the dominant and serviant estates.
It arises when a prior common owner of the dom and serv estates previously made an open, permanent, and reasonably necessary use of one part of his land for the benefit of the other (quasi easement) By dividing the land into 2 parts and selling 1, the S impliedly creates an easement over the retained parcel for the benefit of the conveyed parcel |
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Affirmative easements.
PIGS G. Easement by grant. |
Easement created in a signed writing
A CoT may not create an easement by grant without the other CoT signature The fact that an easement by grant does not provide a precise location, will not invalidate the intended easement A ct can fix the location Note: make sure to contrast with license |
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Affirmative easements.
PIGS S. Easement by Strict necessity |
S. Easement by Strict necessity which arises when a common owner subdivides the land leaving one parcel landlocked without any access to the public way
The purchaser of the landlocked parcel is entitled to an easement by strict necessity across the common owner’s parcel to reach the public way ii. An easement by strict necessity differs from easement by implication in that the easement by strict necessity does not rely on an apparent preexisting use and the necessity required is an absolute strict necessity not just the reasonable necessity required for an easement by implication |
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Negative easements
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Prevent the serviant estate from using the land in a particular way, are limited to
LAWS L. LIGHT A. AIR W. WATER USE S. SUPPORT |
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profit
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A profit is a easement that permits the hodler to sever and remove something from the land
E.g. rt t fish, hunt, or remove sand, oil or minerals. Real property law considers the rt to take water which belongs to nobody, an easement rather than a profit If K calls for the seller to sever minerals from the land then it is considered a sale of goods governed by UCC Art 2 |
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Appertament easement
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An easement that benefits the dom estate is called an appertament easement
An appertament easement runs with the land whenever the land is conveyed An appertament easement may only be used to serve the dom estate it was intended to benefit May not be used for any purpose not connected with the enjoyment of the dom estate nor can the easement be assigned to a stranger to the land It cannot be expanded by the dom owner for use by other nearby lands If the dom estate is subdivided the subdivision may not unreasonably increase the burden on the serviant land beyond that burden originally contemplated or beyond the reasonable use |
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Easement en gross
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An easement that DOES NOT benefits ones land, but personally benefits the easement holder is an easement en gross
At CL, easement engross could not be assigned Today commercial easements in gross are freely assignable |
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An easement, profit, or covenant running with the land may be extinguished by A CRAM
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A. Abandonment clearly indicating the intent to surrender the easement. Mere nonuse alone is NOT abandonment
C. Condemnation of the serv estate by the State’s imminent domain power. State pays just compensation to serv estate should also pay dom estate since lost a valuable property interest R. Written release of the easement A. Adverse possession fo serviant estate in a hostile manner that prevents easement use M. Merger by common ownership by 100% of the dom and serv estate a. Resubdivision of the property DOES NOT REVIVE THE EASEMENT, b. however an easement may be independently established as an easement by strict necessity or by implication |
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Zoning
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Zoning laws exist under state’s police power
They permit municipality to restrict the development, size and use of the land to promote safety, health, and the general welfare of the community Even if a landowner complies with zoning laws she may still be liable for 1. The tort of nuisance or 2. Violating an existing covenant or condition restricting land’s use |
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Zoning
Art 78 Special Proceeding |
In CPLR Art 78 Special Proceeding, Ct give great deference to the decisions of zoning boards as long as the decision is rational and not arbitrary and capricious, the ct will not disturb the zoning board’s determination
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Variance
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If a landowner faces unreasonable hardships because of existing zoning laws, a variance may be requested to use the property in a manner that conflicts with the zoning laws
2 types of variances 1) a use variance 2) an area variance |
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Use variance
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a use variance requires the landowner to show a, b, and c
a) the zoning law imposes an undue financial hardship on the owner so that the entire land as zoned cannot yield a reasonable economic return if it has to comply with the zoning law b) the applicant’s problems are due to the unique circumstances of the property c) granting the variance will not substantially alter the character of the neighborhood |
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Area variance
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an area variance does not seek to change the use of the property but seeks to decrease the area required by the zoning law e.g. for example, allowing a building to be built closer to a neighbor’s boundary line or to be built higher than the zoning laws will allow
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Zoning board variance considerations/process
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the zoning board balances the benefits to the landowner against the detriment to the neigborhood. It will consider a number of things
1) alternatives for accomplishing the goal without a variance 2) whether the variance will alter the character of the neighborhood 3) would it adversely affect the environment 4) was it self created, e.g. that is, did the owner buy with notice of the problem or subdivide the property creating the problem 5) is the variance substantial or insubstantial When a variance is deined, the owner seeking the variance has standing to challenge the denial When the variance is granted, an unhappy neighbor must show an injury DIFFERENT from the rest of the public at large Spot Zoning: A frequent challenge by neighboring landowners arises when the zoning law is amended to single out and favorably rezone just 1 parcel for a different use than the surrounding lands. May be held to be arbitrary and illegal |
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non conforming use
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A non conforming use is the use of land which was lawful prior to the zoning law being enacted
It permits the owner of the land to continue that use even tho it is not in compliance with the zoning law It cannot be expanded (double in size) without a variance and if it is substantially destroyed it cannot be rebuilt without a variance Nonuse of the property will constitute an abandonment of the nonconforming use. NYAA 695 They can be eliminated by an amendment to the zoning law but under the Amortization Doctrine, the owner must be given a reasonable time to recoup the original investment at which time they must conform to the zoning law |
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Covenants running with the land (CRL)
PINTS |
CRLs are annexed to the land and CANNOT be separated from the land when it is transferred
CRLs benefit, bind, and burden all successors in interest to that realty A subsequent purchaser is bound by a CRL provided there was CIA notice Elements for a CRL are PINTS P. Privity of Estate which historically traces the lands of the P and D back to a common owner who imposed the restriction (vertical privity) I. Intent by the original King parties that the covenant attached to the land and run to all future assignees of that property (horizontal privity) N. CIA Notice of the CRL T. Covenant must touch & concern the land (both the burden and benefit of enforcing the covenant must relate to the land) S. Statute of Frauds which is easily satisfied under the Deed Poll Doctrine if the original covenant was in a document signed either by the GOR or the GEE Can run indefinitely with the land (Not subject to RAP) |
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CRL v. Equitable Servitudes
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CRLs can either be “real covenants” (PINTS) or they can be equitable servitudes which do not require privity of estate back a common owner
Thus to satisfy a CRL as an equitable servitude, the P need only satisfy TINS which is PINTS without privity of estate Today the only difference between the 2 doctrines is that privity of estate is rrquired to recover money damages for breach of the CRL |
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CRL
CANS |
CRL falls into 1 of 4
C. A covenant imposed by a common owner upon part of the land conveyed away for the benefit and protection of the land she retained i. Subsequent owners can enforce this type of covenant provided PINTS is satisfied A. The covenant was entered into the adjoining land owners for their mutual benefit, but since there is no privity of estate, tracing the land back to a common owner this restriction can be enforced only as an equitable servitude by way of an injunction, but money damages cannot be sought N. GOR’s restricted covenant on conveyed land for the benefit of neighboring lands which the neighbors can enforce as 3rd party beneficiaries of the covenant despite the absence of prvity of estate between the GOR and the neighbors S.** A covenant to carry out a common plan or scheme for the future benefit of ALL owners in a housing development. Once recorded in the original chain of title to all the lots, its enforceable against all subsequent GEE |
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CRL
CANS S. A covenant to carry out a common plan or scheme |
S.** A covenant to carry out a common plan or scheme for the future benefit of ALL owners in a housing development. Once recorded in the original chain of title to all the lots, its enforceable against all subsequent GEE
It is enforceable in equity (injunction) or at law (money damages) by subsequent owners because PINTS exist PINTS can come in CANS Even if developers covenants were not recorded in the chain of title (no constructive notice), cts have hed that an existing common plan or scheme in a development puts subsequent purchasers on inquiry notice (CIA) as to existing restrictive covenants |
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implied reciprocal servitude
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CRLs in a housing development is enforceable by earlier purchasers against the developer and against subsequent buyers in the development on the basis of an implied reciprocal servitude
That is implied the developer who sold the first parcels with restrictions imposed, would impose the same restrictions on subsequent purchasers sold in the development If a developer set aside acerage to build a school or a golf course but subsequently attempts to sell the acerage to a fast food restaurant the nthe prior owner in the development can sue on the basis of an implied reciprocal servitude |
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Eminent Domain (ED)
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The US constitution 5th Am and every state Const has a “taking” clause which gives the govt the power of eminent domain to “take” private property for a public purpose provided just compensation is paid to those having a present or future interest in the property
The ED clause prevents the govt form forcing some people alone to bear the public’s burden where in fairness it should be borne by the public as a whole |
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public use
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Govt is given broad discretion and the judiciary is given an extremely narrow scope of judicial review in defining what is for “public use.”
It does not literally mean use by the public, but instead is a taking for an overall public purpose and all of the land taken does not have to suffer from blight “public purpose” permits taking to revitalized an economically distressed neighborhood and for development by private developers |
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rough proportionality test
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The ED clause prevents the govt form forcing some people alone to bear the public’s burden where in fairness it should be borne by the public as a whole
This clause is violated when a municipality requires a landowner to use part of her property for public use as a condition to obtaining a building permit or a zoning variance unless the govt can show a “rough proportionality” connecting the landowner’s intended use and the public’s need for part of that land |
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A regulation or restriction becomes compensable taking 1 or 2
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An actual physical taking or possessing private property for public purpose
For example. i. Building a ct house or an interstate highway on the P’s land ii. A state law permitting all cable TV companies to install its cable on private land iii. The permanent flooding of O’s land when the govt contructed a dam iv. seasonal flooding for 6 years is a taking Is a regulatory taking where the govt permanently or for a prolonged period restricts ALL USE of the land leaving it economically idle and depriving the owner of all economic value of the property |
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Fixtures
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A fixture is chattel which by being annexed to the realty becomes part of the realty
If chattel becomes a fixture it passes with the real property whenever the realty is conveyed by deed, through the owners estate, by adverse possession, or by a mortgage foreclosure Any personal property which is essential for the functional utlity of a fixture, likewise cannot be removed from the property. For example. A garage door opener or the hose and attachments to a central vacuum system |
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Whether a chattel becomes a fixture is determined by TIP
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T. Type of chattel that generally becomes part of the realty, ie. Chandelier, awning
I. Intent of the person installing the chattel. If the land and chattel had a common owner, there is a presumption it is intended as a fixture P. Party’s relationship |
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Trade fixtures
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Trade fixtures are chattel installed by a commercial tenant for a business purpose
Can be removed by the T at the end of the lease, but they must be removed prior to termination fo the lease, otherwise the fixture reverts to the landlord Any damage done in removing the fixture, must be repaired by the T and removal is prohibited if it would cause substantial damage to the realty Under UCC Art 9. A creditor having perfected a security interest in fixtures may remove the fixture even if substantial damage would be caused provided the creditor post a bond to repair any damage |
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Lateral support
MBE |
Land is entitled to lateral support from neighboring land when adjacent land is excavated weakening the lateral support to a neighbor’s land absolute/strict liability is imposed in MBE if the adjoining land IN ITS NATURAL STATE would have collaposed because of the excavation.
However if the collaposed land contained a artifical structure increasing the pressure on the land and that land would not have collapsed except for the extra weight of the structure the nthe injured land is required to prove negligence (not strict liability) in the excavation Problem: A’s structure fell into B’s excavation. If A’s land would not have fallen if no building was on it, then B is not strictly liable and A must prove B was negligent in the exacavation. However, if A’s land would have fallen if there was no building on it, B is strictly liable If nonadjacent land also collapses it can recover from the excavator on a negligence theory but not absolute liability for the collapse of noncontiguous land |
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Lateral support
NY |
NEW YORK RULE. In NY, as soon as the excavation exceeds 10ft NY imposes STRICT LIABILITY, regardless of whether the the land was in its natural state or it was encumbered with an artifical structure (house, building)
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nonexclusive profit
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The GEE of such a profit cannot convey any profit rts to a 3rd party unless the parties agree to apportion their rts so that the GOR's rt to take the things is not impinged
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