Real Property

Front 1

Present possessory estate

Back 1

gives holder the right to present possession

Front 2

Freehold estate

Back 2

gives possession to land through some legal title or right to hold, measured by its duration (fee simple, fee tail, life estate)

Front 3

Fee simple absolute

Back 3

largest estate recognized by law
can be sold, divided, devised
possible infinite duration

Front 4

How fee simple absolute created

Back 4

Traditional CL--words of inheritance required "+ his heirs" Modern, no specific words of inheritance. Fee simple absolute presumed in absence of express contrary intent.

Front 5

Defeasible fees

Back 5

fee simple estates that can be terminated upon the happening of a stated event

Front 6

fee simple determinable

Back 6

fee simple estate that automatically reverts to the grantor if some specified event happens.

Front 7

Can fee simple determinable be conveyed?

Back 7

yes

Front 8

Can fee simple determinable be devised?

Back 8

yes

Front 9

what words are associated with the creation of a fee simple determinable

Back 9

words like "so long as," "during," "while," "until." "to B + his heirs as long as prop is used for charitable purposes."

Front 10

What interest is usually created w/ words like "so long as," "during," "while," "until". . . ?

Back 10

fee simple determinable

Front 11

Possibility of reverter

Back 11

future interest in land retained by grantor in fee simple determinable estate. Transferable, descendible & divisable but some courts hold not transferable inter vivos.

Front 12

Fee simple subj to cond/n subsequent

Back 12

fee simple estate which MAY be terminated by grantor who has power to end the estate upon the happening or non-happening of a named event.

Front 13

Power of termination or right of entry

Back 13

future interest retained by the grantor in fee simple subj to cond/n subsequent. Transferable, descendible & divisable.

Front 14

How fee simple subj to cond/n subsequent is created

Back 14

words like "on cond/n that," "subj to cond/n that" "but if"

Front 15

What property interest is created w/ words like "on cond/n that," "subj to cond/n that" "but if"

Back 15

fee simple subject to cond/n subsequent

Front 16

Fee simple subj to executory limitations

Back 16

fee simple estate wh passes to a grantee other than the grantor upon the happening or nonhappening of a stated event.

Front 17

Fee tail

Back 17

estate that is inheritable only by lineal heirs of the original grantee. Most states have abolished fee tails & attempts to create one result in fee simple.

Front 18

How fee tail created

Back 18

O to A + the heirs of his body--today only a small # of states still recognize.

Front 19

Life estate

Back 19

freehold estate where the duration is measured by the life of one or more persons.

Front 20

How is life estate created?

Back 20

conveyance or operation of law (e.g. dower)

Front 21

2 CL interests of spouses in the real prop of the other

Back 21

dower
curtesy

Front 22

dower

Back 22

interest wife take in her husband's estate when he dies. CL rule in wh wife gets 1/3 life estate interest in her husband's lands. ? of children not relevant.

Front 23

curtesy

Back 23

interest husband takes in his wife's estate when she dies. CL rule which gives him the right to ALL of the land she had when they were married as long as they had issue wh were born alive capable of inheriting.

Front 24

Life estate (for life of grantee)

Back 24

freehold estate where the duration is measured by the life of the grantee
(i.e. "to B for life")

Front 25

Life estate pur autre vie (life of another)

Back 25

life estate measured by the life of someone other than the grantee ("to A for the life of B")

Front 26

Rights & duties of life tenant

Back 26

1. entitled to any ordinary uses & profits of the land but
2. cannot injure the interests of a remainderman or reversioner.
3. subj to doctrine of waste

Front 27

4 types of waste

Back 27

1. affirmative or vol
2. permissive
3. ameliorative
4. equitable

Front 28

affirmative or vol waste

Back 28

injury to land caused by intentional or neg affirmative act e.g. exploiting minerals

Front 29

Life tenant permited to exploit naturals resources only when

Back 29

1. necessary for repairs
2. land is suitable only for such use
3. it is expressly or impliedly permitted by grantor

Front 30

Open mines doctrine

Back 30

if mining was done on the land prior to the life estate, the life tenant can continue mining--but is limited to the mines already open.

Front 31

permissive waste

Back 31

injury to land caused by T's failure to preserve & protect the land when it is T's duty to do so (i.e. repair leak in roof).

Front 32

In preventing permissive waste, a life tenant is obligated to

Back 32

1. preserve the land & structures in a reasonable state of repair
2. pay interest on mortgages
3. pay ordinary taxes
4. pay special assessments for public improvements for short duration

Front 33

A life tenant is NOT

Back 33

1. obligated to insure for benefit of the remaindermen
2. responsible for damages caused by 3rd party tortfeasor.

Front 34

Ameliorative waste

Back 34

change in physical characteristics of land by unauthorized act wh benefits the land economically.

Front 35

CL: Life tenant & ameliorative waste

Back 35

CL: actionable

Front 36

Modern: Life tenant & ameliorative water

Back 36

Life tenant may alter or even destroy existing buildings if:
1. FMV is not diminished &
2. remaindermen do not object OR
3. substantial change in area has diminished prop in current form

Front 37

re: ameliorative waste: Compare leasehold & life tenant

Back 37

Leasehold tenants remains liable for ameliorative waste even if the neighborhood has changed & market value increased.

Front 38

Can life tenant do anything if land is practically worthless in the present state?

Back 38

If land practically worthless in its present state, life tenant may seek a partition sale, the proceeds of wh are put in trust w/ income paid to the life tenant.

Front 39

Equitable waste

Back 39

A life tenant who has the benefit of an express exemption from waste will nonetheless be restrained in equity for willful, destructive, malicious or extravagant waste.

Front 40

What happens if the life tenant renounces his interest in prop?

Back 40

the future interest following the life estate is generally accelerated.

Front 41

A future interest

Back 41

1. gives holder the right or possibility of FUTURE possession of an estate.
2. is a PRESENT legally protected right in prop.
3. generic term for remainders, executory interests, reversions, etc.

Front 42

Reversionary interests are future interests in the

Back 42

transferor.

Front 43

Types of reversionary interests

Back 43

1. possibilities of reverter
2. rights of entry
3. reversions

Front 44

Reversion is

Back 44

1. estate left in grantor who converys less than she owns.
2. alienable, devisable, inheritable
3. All reversions are vested so not subj to RAP.

Front 45

Remainder . . .(2) must be created in. . (1) cannot. . . . (2)

Back 45

1. future interest in a THIRD PERSON
2. becomes possessory on the NATURAL EXPIRATION of preceding estate.
3. so cannot divest a prior estate
4. cannot follow a gap after the preceeding estate
3. must be expressly created in the instru creating previous estate.

Front 46

O conveys "to A for life, then to B & his heirs." What does B have?

Back 46

remainder

Front 47

O conveys "to A for life, then to B & his heirs." What does A have?

Back 47

life estate

Front 48

Can a reversionary holder sue for waste or tortious damage to the interest?

Back 48

yes

Front 49

Does a reversion have to be expressly reserved?

Back 49

no

Front 50

O conveys "to A for life." What does O have?

Back 50

reversion

Front 51

3 types of vested remainders

Back 51

1. indefeasibly or absolutely vested remainders
2. vested remainders subj to open
3. vested remainders subj to total divestment

Front 52

Indefeasibly vested remainder is

Back 52

1. created to an existing & ascertained person
2. who has the right to immediate possession upon the natural termination of the preceeding estate so
3. not subj to cond/n precedent &
4. not subj to divestment or diminution

Front 53

Vested remainder subj to open is

Back 53

1. created in a class of persons that is certain to become possessory
2. but is subj to dimininution by birth of additional persons who will share in that class.

Front 54

Vested remainder subj to total divestment is

Back 54

vested remainder subj to condition subsequent.

Front 55

O conveys "to A for life, then to children of B" A & B are living & B has one child, C. What does C have?

Back 55

vested remainder subject to open

Front 56

O conveys "to A for life, then to B & his heirs; but if B dies unmarried, then to C & his heirs." What does B have?

Back 56

vested remainder subj to complete divestment by C's executory interest.

Front 57

Contingent remainders

Back 57

1. created in unborn or unascertained persons or
2. subj to cond/n precedent
3. not vested
4. subj to RAP

Front 58

Does a remainderman have a right against prior estate owner (e.g. life tenant) for waste?

Back 58

No

Front 59

Can remainderman compel prior estate owner to pay taxes or interest?

Back 59

No

Front 60

Destructibility of contingent remainder

Back 60

CL: contingent remainder had to vest prior to termination of the preceding estate or it was destroyed.
MOD: abolished in most states. Prop reverts to grantor, and children have a springing exectory interest.

Front 61

Doctrine of merger

Back 61

CL: when one person acquires successive estates, the smaller of the 2 will be absorbed by larger.

Front 62

Can a merger occur if the life estate & next vested interest are created in the same instrument?

Back 62

No, as this would defeat grantor's intent. Merger may occur only when one person later acquires immediately successive estates.

Front 63

O conveys "to A for life then to B's children" If B has children & O purchases A's life estate, what does O have?

Back 63

life estate pur autre view & a reversion. Under doctrine of merger, these interests merge & contingent remainder in B's unborn children is destroyed.

Front 64

Rule in Shelley's Case

Back 64

CL: Rules against remainders in grantee's heirs. If the same instrument created a life estate in A & gave remainder only to A's heirs, the remainder was not recognized & A took both the life estate & the remainder. MOD: Most states have abolished; A's heirs have a contingent remainder.

Front 65

Doctrine of Worthier Title

Back 65

1. A remainder in the grantor's heirs is invalid & becomes a reversion in the grantor.
2. Doesn't apply if intent to create a remainder in O's heirs is clearly manifested.
3. Only applies to intervivos transfers in wh words "heirs" is used.
4. MOD result: Grantor's heirs have a contingent remainder.

Front 66

Executory interests are

Back 66

1. future interests in favor of 3rd parties
2. always contingent
3. either divests a transferee's preceding freehold estate (shifting interests) or follows a gap in possession or cut short a grantor's estate (springing interests)
4. not considered vested
5. are subj to RAP
6. not destructible.

Front 67

shifting executory interests

Back 67

rights to possession shifts from one grantee to another grantee by cutting off interest of previous grantee. O to A + his heirs as long as the land is farmed, then to B + his heirs.

Front 68

springing executory interest

Back 68

rights to possession spring from the grantor to the grantee by cutting short a reversion held by the grantor. O to A for life, and one yr later, to B+ his heirs.

Front 69

Are vested remainders fully transferable, descendible & devisable.

Back 69

Yes

Front 70

Are contingent remainders & executory interests transferable intervivos?

Back 70

Not at CL. Most mod courts yes unless survival is not a cond/n to the interest's taking.

Front 71

Are contingent remainders & executory interests descendible & devisable?

Back 71

Yes, provided survival is not a cond/n to taking the interest.

Front 72

Class gift

Back 72

Class is group of persons having a common characteristic (e.g. children). The share of ea member is determined by the # in the group. Class gift of remainder may be vested subj to open or contingent.

Front 73

When is class gift subj to open?

Back 73

when at least one group member exists

Front 74

Class gift is contingent when

Back 74

not all group members are ascertained

Front 75

Class closes when

Back 75

no one born after that time can share in the gift

Front 76

Rule of convenience

Back 76

In absence of express contrary intent, a class closes when some member of the class can call for distribution of her share.

Front 77

Is survival of a class member to time of class closing necessary to share in a gift?

Back 77

No, unless survival was made an express cond/n.

Front 78

A trust is

Back 78

a fiduciary re/ship w/ respect to specific prop (res) wherein the trustee holds legal title subj to enforceable equitable rights in a bene/y. Creator of trust is settlor who must own prop at time of trust creation & must have had the intent to create the trust.

Front 79

Does RAP apply to trusts?

Back 79

yes both to equitable future interests as well as "legal" future interest

Front 80

Ways trust created

Back 80

1. will (testamentary)
2. inter vivos transfer
3. inter vivos declaration that settlor is holding prop in a trust
4. must be in writing if real prop
5. bequeth by will prop to a trust (pour over trust)

Front 81

Characteristics of a charitable trust (5)

Back 81

1. charitable purpose
2. res
3. indefinite bene/ies
4. perpetual (RAP does not apply)
5. cy pres doctrine applies
6. enforced by state attorney gen.

Front 82

What is cy pres doctrine?

Back 82

Equitable doc under wh court reforms a written doc w/ a gift to charity as closely to the donor's intention as possible, so gift does not fail. Cy pres means "as near as possible." Court must find a gen charitable intent on the part of the settlor & ascertain settlor's primary purpose.

Front 83

RAP

Back 83

No interest is valid unless it must vest, if at all, not later than 21 yrs after some life in being at the creation of the interest. If there is any possibility that the interest might vest more than 21 yrs after a life in being, the interest is void.

Front 84

RAP applies to

Back 84

1. contingent remainders
2. executory interests
3. class gifts (vested remainders subj. to open)
4. (most states) options to purchase (not attached to leasehold)
5. rights of 1st refusal
6. powers of appointment

Front 85

RAP--when does perpetuities period begin to run?

Back 85

depends on creating instrument. e.g. will= date of death; deed= date of delivery; irrevocable trust= date of creation; revocable trust= date it become irrevocable.

Front 86

What is a "life in being" under RAP?

Back 86

Unless other measuring lives are specified, one connected w/ the vesting of the interest is used. Any lives may denominated measuring leves, provded they are human & of reasonable number.

Front 87

When analyzing RAP ?s, when does perpetuities period begin to run?

Back 87

depends on the instrument & the interest created.

Front 88

When analyzing RAP ?s, when does perpetuities period begin to run for interests granted by will?

Back 88

from the date of the testator's death

Front 89

When analyzing RAP ?s for interests created by deeds when does perpetuities period begin to run?

Back 89

from the date of delivery

Front 90

When analyzing RAP ?s when does perpetuities period begin to run for interests created by an irrevocable trust?

Back 90

from the date it was created.

Front 91

When analyzing RAP ?s when does perpetuities period begin to run for interests created by a revocable trust?

Back 91

from the date it become irrevocable.

Front 92

Interests not subj to RAP

Back 92

1. present interests in possession
2. reversions
3. vested remainders
4. possibility of reverter
5 powers of termination
6. charitable gifts
7. resulting trust
8. option to purchase held by current tenant.

Front 93

What is charity-to-charity exception to RAP?

Back 93

A gift to a charity that may be shifted to another charity outside the perpetuities period is valid even though it violates RAP. (Gift from charity to private person or vice versa does not fall w/in exception)

Front 94

Consequences of violating RAP

Back 94

destroys only the offending interest. Rare for entire gift to fail (intent of testator).

Front 95

"O to A for so long as no liquor is consumed on premises, then to B." What interest does B have & what is pitfall?

Back 95

executory interest wh follows a defeasible fee. Pitfall is that such interests usu. violate RAP. Only sit in wh it will not is if cond/n is specific to fee holder or expressly limited to perpetuities period.

Front 96

Does age contingency BEYOND 21 (i.e. 25) in an open class violate RAP?

Back 96

yes. Some states have reformed legis/n reducing such age contingencies to 21.

Front 97

Fertile octogenarian rule & RAP

Back 97

legal fiction assumed under RAP that a woman can become pregnant as long as she is alive.

Front 98

Unborn widow(er) rule & RAP

Back 98

Because a person's widow (or widower) is not determined until his death, it may turn out to be someone who was not in being at the time of the disposition.

Front 99

Does gift condition on administrative capacity (e.g. admission to probate) violate RAP?

Back 99

Yes. Some state eliminate that prob w/ presumption that transferor intended the contingency to occur w/in 21 yrs.

Front 100

options & rights of first refusal & RAP

Back 100

1. Generally, if structured so it might be exercised later than perpetuities period, void
2. MIN will construe "reasonable time"
3. Exception: RAP not apply to options to purchase held by current lessee.

Front 101

If gift to any class member vest too remotely, does RAP void the whole class gift?

Back 101

yes, except gift to subclass may be treated as separate gift under RAP.

Front 102

When applying RAP, what is rule for class gift to vest?

Back 102

"Bad-as-to-One, Bad-as-to-All" If the interest of any class member may vest too remotely, the whole class gift fails.

Front 103

What must occur for class gift to vest?

Back 103

class must be closed & all conditions precedent must be satisfied for every member.

Front 104

Is a per capita gift (i.e. $1000 to each child) a class gift under RAP?

Back 104

no

Front 105

RAP--Statuory reforms

Back 105

Most states modify RAP. e.g. wait & see, alternate vesting period, etc.

Front 106

wait & see principle

Back 106

modification to RAP under which court may determine the validity of a contingent future interest based on whether it actually vests w/in the perpetuities period rather than whether it might vest outside the period.

Front 107

Restraints on alienation

Back 107

provisions in deeds, wills & mortgages that restrict the grantee's power to convert the prop

Front 108

Generally any restriction on transferability of a legal (as opposed to equitable) interest is

Back 108

invalid

Front 109

3 types of restraints on alienation

Back 109

1. disabling
2. forfeiture
3. promissory

Front 110

Disabling restraint

Back 110

w/holds power of alienation--"shall not transfer" Absolute restraints on fee simple estate are ALWAYS VOID. But restraints on fee simple estates for a limited time & reasonable purpose are likely to be upheld.

Front 111

Forfeiture restraint

Back 111

grantor says he will terminate estate if a conveyance is made (cond/n subsequent) automatic--invalid except for lesser estates or limited time (life estates

Front 112

promissory restraints

Back 112

Grantee promises not to alienate so attempted transfer breaches a covenant. Courts may or may not uphold depending on other variables. Valid on life estates. void on fee simple.

Front 113

Discriminatory restraints

Back 113

are forbidden by Con. Judicial enforcement of restraints prohibiting transfer or use of prop by a person or a specific race, religion or ethnic group is discriminatory state ac/n.

Front 114

Examples of valid restraints on alienation

Back 114

1. equitable interests like spendthrift clauses in trusts
2. future interests
3. rights of 1st refusal
4. restrictions on assignments & subleases
5. reasonable time restraints on partition by co-Ts in tenancy in common.
6. restraints of sale of apts w/in cooperative (b/e owners interdependent & seen as tenants)

Front 115

Joint tenancy

Back 115

undivided interest in whole
right of survivorship

Front 116

Creation of joint tenancy--4 unities

Back 116

time
title
interest
possession

Front 117

In addition to 4 unities, what does modern law require to establish joint tenancy w/ right of survivorship?

Back 117

Mod law requires a clear expression of a right of survivorship; otherwise a conveyance to 2 or more persons is presumed to be a tenancy in common. However in bar exam, if ? says parties are joint tenants, take it as joint tenants w/ right of survivorship.unless fact pattern actually gives you quoted language of grant creating concurrent estate & asks you type involved.

Front 118

Severance of joint tenancy results in

Back 118

termination of right of survivorship & tenancy in common

Front 119

Severance of joint tenancy will occur if (3): might occur if (3)

Back 119

Severance will occur if:
1. INTER VIVOS conveyance by one tenant of her undivided interest
2. partition- after a final decree--not simply by filing a suit for partition
3. K to convey by one joint tenant
Severance might occur if:
1. mortgage
2. lease (MAJ--lease by one does not cause severance of JT
3. judgment lien

Front 120

When there are more than 2 joint tenants, what happens when one of them conveys his interest?

Back 120

the joint tenancy is severed only to extent of conveyor's interest

Front 121

Severance of joint tenancy might occur if

Back 121

1. mortgage
2. lease
3. judgment lien

Front 122

Whether mortgage will severe a joint tenancy

Back 122

depends on if prop is located in title or lien theory state. Most states: mortgage is a lien which does not sever a joint tenancy. Some: title theory where it does.

Front 123

Partition & joint tenancy

Back 123

Partition (act of dividing real prop held jointly or in common by 2 or more peo) ac/n occurs when one or both parties file an ac/n in an equity court to divide their interests. Severance of the joint tenancy occurs after a final partition decree--not simply by filing a suit for partition.

Front 124

Effect of leases on joint tenancies

Back 124

MAJ: lease by one joint T does not cause severance (If joint T dies, rights of any lessee would cease).

Front 125

K to convey & joint tenancy

Back 125

K to convey by 1 joint tenant severs joint tenancy b/e enforceable in equity. Courts are split on whether an executory K by ALL joint tenants works a severance.

Front 126

Testamentary disposition--effect on joint tenancy

Back 126

None, because at death T's interest vanishes

Front 127

Murder of one joint T by other--effect on survivorship

Back 127

Conceptually--JT who murders other should not lose right of survivorship.
Some juris/ns have statutes wh change this. Other juris/ns impose a constructive trust for decedent's estate

Front 128

Judgment liens--effect on joint tenancy

Back 128

Does not severe unities of time + title. If lien holder attempts to satisfy judgment thru foreclosure, severance does occur.

Front 129

Tenancy by the entirety

Back 129

marital estate akin to joint tenancy. Unity of time, title, interest, possession PLUS person (H&W). Right of survivorship.

Front 130

Does CA recognize tenancy by the entirety?

Back 130

NO. No CP state does. In 21 states, it is implied when prop held by H & W.

Front 131

What can severe a tenancy by the entirety?

Back 131

Conveyance (both H&W must joint)
Death
Divorce
Execution of joint creditor
Partition severs but neither spouse has right or power to partition w/o consent of the other

Front 132

Major diffs b/n joint tenancy & tenancy by the entirety

Back 132

1. marriage--tenancy by the entirety requires, JT does not
2. Tenancy by the entirety cannot be severed by one spouse as long as they are married.

Front 133

Tenancy in common--characteristics

Back 133

1. Concurrent estate w/ no right of survivorship.
2. Tenants can hold diff interests
3. Ea entitled to possession of the whole.
4. Interests are alienable, devisable.
5. Today, multiple grantees are presumed to take as tenants in common.

Front 134

ouster & co-tenancy

Back 134

the wrongful dispossession (putting out) of a co-tenant; forcing the party pushed out of the premises to bring a lawsuit to regain possession.

Front 135

Rights of possession--tenancy in common

Back 135

1. Ea has right to possess all parts of prop but no right to exclusive possession.
2. A co-T out of possession cannot bring a possessory ac/n unless she has been ousted.

Front 136

Rents & profits--tenancy in common: co-T in possession v. co-T out of possession

Back 136

Co-T in possession must share net rents from 3rd parties & net profits gained from exploitations of land such as mining. Co-T in possession has right to retain profits from her own use (e.g. running a bus on prop)--need not share absent outster or agreement to the contrary

Front 137

May one T in common encumber her interest?

Back 137

Yes but cannot encumber the interests of the other co-Ts.

Front 138

Remedy of partition: tenancy in common

Back 138

Any co-T has a right to judicial partition either in kind (physical division) or by sale & division of the proceeds.

Front 139

Can one co-T get contribution from other co-Ts for repairs?

Back 139

MAJ: T in possession can require contribution for co-Ts not in possession--requires advance notice.
MIN: no right of contribution for repairs made; but if partition then court will take into consid/n $ spent by one T.

Front 140

Can one co-T get contribution from other co-Ts for improvements?

Back 140

No--unless there is a partition, then partition court may "even up."

Front 141

Can one co-T get contribution from other co-Ts for taxes & mortgages?

Back 141

Yes for those paid on entire prop. However, reimbursement to a co-T in sole possession is limited to $ which exceed rental value of her use.

Front 142

Tenancy in common--Is there a fiduciary re/ship b/n co-Ts?

Back 142

No but good faith prevents one co-T from acquring an outstanding title or lien that may effect the estate. Difficult for one co-T to adversely possess against other co-Ts, b/e ea co-T has the right to possession of all.

Front 143

Lease & SoF

Back 143

Leases of GREATER than one yr must be in writing.

Front 144

Leasehold is

Back 144

estate in land under wh T has a present possessory interest in the leased premises & L has a future interest (reversion)

Front 145

4 types of leases

Back 145

1. tenancy for yrs
2. periodic tenancy
3. tenacy at will
4. tenancy at sufferance

Front 146

Characteristics of tenancy for yrs

Back 146

1. fixed period
2. written (if over 1 yr)
3. ends automatically

Front 147

Besides at date set, tenancy for yrs may also end

Back 147

1. By stat--L reserves right of reentry for breach of covenants
2. By stat--L ends for failure to pay rent w/o reserved right of reentry
3. T surrenders & L accepts. The same formalities required for creation of the leasehold are required for surrender (e.g. if unexpired term exceeds one yr, surrender must be in writing).

Front 148

Periodic tenancy

Back 148

continues for successive periods (e.g. month to month) until terminated by proper notice by either party

Front 149

Periodic tenancy created by

Back 149

1. express agreement
2. implication
3. operation of law (e.g. T remains in possession after lease expires & L treats it as periodic T--or lease is invlaid but T goes into possession)

Front 150

What is proper notice for termination of a periodic tenancy?

Back 150

one full period in advance; for yr to yr lease, 6 mos

Front 151

Tenancy at will

Back 151

is terminable at the will of either L or T or by operation of law (e.g. L leases to someone else, T assigns, L conveys)

Front 152

How is tenancy at will created?

Back 152

by express agreement. Absent such an agreement, court will treat periodic rent paymts as periodic tenancy.

Front 153

What if lease agreement in tenancy at will only gives the L the right to terminate?

Back 153

Similar right will be implied in favor of T

Front 154

What if lease agreement in tenancy at will only gives the T the right to terminate?

Back 154

a similar right will NOT be implied in favor of the L.

Front 155

How will tenancy at will be terminated?

Back 155

w/ notice by any party w/ power to do so or by operation of law (death, commission of waste)

Front 156

Tenancy at sufferance arises when . .

Back 156

T WRONGFULLY remains in possession when lawful lease has ended.

Front 157

Tenancy at sufferance terminates . . .

Back 157

when L takes steps to evict T. No notice is requred.

Front 158

Hold-Over Doctrine

Back 158

If T stays in possession after his right has ended, L's remedies: (1) evict or (2) bind him to a new periodic tenancy. Residential Ts are usu. held to new mo to mo regardless of original terms. Commercial Ts may be held to a new yr to yr if original term more than 1 yr.

Front 159

Exceptions to hold over doctrine in wh L cannot bind T to a new tenancy

Back 159

1. T remains for only a few hrs or leaves a few items of personal prop
2. delay is not T's fault
3. It is a seasonal lease.

Front 160

Doctrine of independent lease covenant

Back 160

CL: covenants in lease were deemed ind. Nonperformance of L or T did not excuse the other from performing. Modernly: K law in wh covenants are dependent apply.

Front 161

Liability of hold over T once removed

Back 161

relation back to the beginning of wrongful holding over, T is liable as though she was a trespasser.

Front 162

T's duties

Back 162

1. repair--doctrine of waste
2. not to use prop for illegal purpose
3. pay rent
4. duty of care (under tort law) as occupier of prop

Front 163

T's duty to repair

Back 163

means T cannot damage (commit waste) on lease premises. Rules re: waste like those in life estate (#23, 24 27, 28, 30, 31, 33)

Front 164

Modern exception to T's liability for ameliorative wate

Back 164

T permited to make change if he is a long term tenant & the change reflects changes in the neighborhood.

Front 165

If leased premises are destroyed w/o fault of either L or T,

Back 165

CL: T remains liable unless lease otherwise
MOD: most states allow T to terminate if uninhabitable + T did not cause destruction.

Front 166

In residential lease in wh T convenants to repair,

Back 166

L usually remains obligated to reapir under implied warranty of habitability.

Front 167

T's covenants to repair in a nonresidential lease

Back 167

will be enforced.

Front 168

Can L evict T if T begins illegal activity?

Back 168

Yes or L may obtain damages & injunctive relief. Occasional unlawful conduct by T does not breach this duty.

Front 169

L remedies if T stays but fails to pay rent: CL v MOD

Back 169

CL: suit for rent but no right to terminate lease.
MOD: L nonbreaching party has right to terminate.

Front 170

MOD: L remedies if T stays but fails to pay rent

Back 170

L (nonbreaching party) has right to terminate; May
1. bring suit for rent due or
2. evict under state's UNLAWFUL DETAINER stat.

Front 171

T Abandons

Back 171

unilateral act on part of T to leave prop before expiration of lease

Front 172

Surrender

Back 172

occurs when T returns premises to L before expiration of lease and the landlord agrees to accept.

Front 173

Diff b/n T's liability w/ surrender v. when surrender not found.

Back 173

If surrender, T is free from rent liability after the abandonment. If not surrender, T is responsible for diff b/n promised rent & FM rent.

Front 174

Gen rule re: L' duty to repair

Back 174

Subj to lease, stat or implied warranty of habitability, L has no duty to repair or maintain the premises

Front 175

L's duties

Back 175

1. deliver possession (ACTUAL possession--most states)
2, quiet enjoyment
3, implied warranty of habitability

Front 176

Ways L breaches implied warranty of quiet enjoyment

Back 176

1. actual eviction
2. partial eviction
3. constructive eviction

Front 177

Actual eviction occurs

Back 177

when T is physically excluded from entire prop. Terminates T's obligation to pay rent.

Front 178

Partial eviction occurs

Back 178

when T physically excluded from part of prop. If BY LANDORD, T's obligation to pay rent relieved. If BY 3rd PERSON w/ paramount title, APPORTIONMENT OF RENT of portion T continues to occupy.

Front 179

Constructive eviction occurs

Back 179

if L breaches covenant of quiet enjoyment by SUBSTANTIALLY interfering w/T's use & enjoyment of premises--L does or fails to do someth wh renders prop UNINHABITABLE.

Front 180

Implied Warranty of Habitablity is

Back 180

1. Most juris/ns
2. Residential leases
3. prop fit to live in & will remain so during lease
3. Non waivable

Front 181

T's remedy for constructive eviction

Back 181

T may terminate & seek damages. (1) Cond/n must be result of someth L did & (2) T must vacate

Front 182

If breach of implied warranty of habitability T may

Back 182

1. terminate lease
2. make repairs & offset cost
3. abate the rent to $ = FMV of prop w/ defects OR
4. remain in possession, pay full rent & sue for damages

Front 183

Retaliatory evic/n

Back 183

Nearly always illegal. L terminating lease or otherwise penalizing T for T's exercising legal rights. Many juris/ns assume if L acts (e,g, w/in 90 days). To overcome, L must show valid, nonretaliatory reason.

Front 184

Assignment of lease

Back 184

T makes a complete transfer of entire remaining interest

Front 185

Sublease

Back 185

T transfers less than entire lease + retains any part of it

Front 186

Consequences of assignment

Back 186

Assignee & L in privity of estate & ea is liable to other for covenants that run w/ the land

Front 187

Covenant runs w/ land if

Back 187

1. original parties so intended AND!!!
2, touches & concerns land (ie. benefits the L & burdens the T (or vise versa) w/ respect to their interests in the prop.

Front 188

covenant running w/ the land means

Back 188

covenant that, b/e it relates to the land, binds successor grantees indefinitely. The land cannot be conveyed w/o the covenant. Impt consequence of a covenant running w/ the land is that its burden or benefit will thereby be imposed or conferred upon a subsequent owner of the prop who never actually agreed to it. Running covenants thereby achieve the transfer of duties & rights in a way not permitted by traditional K law.

Front 189

Consequences of sublease

Back 189

1. subleasee not personally liable to L
2. L may terminate main lease (wh terminates sublease) for breach.
3. Many juris/ns allow L to put lien on personal prop
4. subleasee may not enforce any covenants L made in main lease (except maybe implied warranty of habitability) against L.

Front 190

What diff is there b/n rent covenants on an assignment of lease vs rent covenant on sublease?

Back 190

Assisgnee stands in the shoes of the original T in direct re/ship w/ L & ea is liable to the other for all covenants in the lease that "run w/ the land." Sublessee is not persoanlly liable to L for rent or for the performance of any of the covenants in the main lease unless the subT expressly assumes.

Front 191

How are covenants against assignment & sublease construed?

Back 191

strictly against L

Front 192

Effect of transfer or sublease in violation of lease

Back 192

Not void but L may terminate & lease & sue for damages

Front 193

Rules in Dumpor's Case

Back 193

Once L consents to one assignment, he cannot forbid subsequent assignment. Most courts apply to assignments--not subleases

Front 194

What if L, aware of covenant against assignment, does not object & accepts rent from assignee?

Back 194

A valid covenant against assignment is then considered waived. Once L consents to one transfer, the Rule in Dumpor's Case provides that he waives the covenant as to future transfers unless L expressly reserves it.

Front 195

Attornment

Back 195

L has right to assign. Recognition of new L by T.

Front 196

Liability of L assignee to T

Back 196

all covenants that touch & concern land. Original L also remains liable on original lease.

Front 197

If leasehold taken by eminent domain, T's liability for rent

Back 197

is extinguished if ENTIRE LEASEHOLD. If taking is TEMP or PARTIAL, still liable for rent but entitled to compensation for taking.

Front 198

L's tort liability

Back 198

CL: no duty
MOD: 6 exceptions
1. disclose dangerous cond/n L knows about but T could not discover by reasonable inspection.
2. common areas--reasonable care
3. public use
4. furnished short term residence
5. neg repairs by L
f. contracts to repair

Front 199

L is laible for injuries to members of the pub if at time of lease, L

Back 199

1. knows or should know about dangerous cond/n
2. has reason to believe T may admit public before repairing the cond/n AND
3. fails to repair

Front 200

MOD trend: L tort liability

Back 200

1. gen duty of reasonable care towards residential Ts
2. liable for injuries from ordinary neg if L had notice of a defect & opportunity to reapir.

Front 201

L's liability for security & injuries to tenants from 3rd parties occurs when L failed

Back 201

1. to comply w/ housing code provisions dealing w/ security
2. to maintain ordinary security measures.
3. or provide advertised extraordinary security measures.

Front 202

Fixture is

Back 202

chattel that has become real prop either by such incorporation into the realty that its identity is lost (accession) or because its removal from would cause considerable damage.

Front 203

For personal prop to become a fixture, the annexor must have

Back 203

objective intention to make the item part of the realty

Front 204

Factors to determine intention to make personal prop part of realty

Back 204

1. nature of article
2. manner of attachment
3. amt of damage wh would be caused by removal
4. adaptation of the item to the use of the realty

Front 205

Constructive annexation

Back 205

Item of personal prop is so uniquely adapted to the real estate that it make no sense to separate it--even if not attached to realty.

Front 206

If T owns annexed chattel, can T remove it at end of lease?

Back 206

1. K controls
2. Yes if removal would not damage prop or destroy chattel.
3. Must be by end of lease term

Front 207

Trade fixtures

Back 207

chattels annexed to land by T for pecuniary gain. As a gen rule, they are removable by T unless accession occurs. T must pay for damages caused by removal.

Front 208

If prop taken by eminent domain, must compensation be paid for fixtures?

Back 208

Yes whereas personalty need not be paid for & is to be removed by owner.

Front 209

Seller of chattel w/ purchase$ lien v. mortgagee of land

Back 209

Gen rule is 1st to record wins. UCC: seller wins if "fixture filing" is recorded w/in 20 days after chattel affixed to land.

Front 210

Nonpossessory interests in land

Back 210

create a right to use land possessed by someone else

Front 211

Nonpossessory interests in land include

Back 211

easements, profits, covenants & servitudes.

Front 212

Gen. definition of easement

Back 212

grant of right to use another's land for a special purpose but no right to possess or enjoy that land; presumed of perpetual duration unless grant states otherwise.

Front 213

Types of easements

Back 213

1. neg
2. affirmative

Front 214

Neg easements--4 types

Back 214

1. light
2. air
3. lateral & subjacent support
4. flow from artificial stream

Front 215

Exam tip: Neg easements are really restrictive convenants. If pertains to ? can be both . .

Back 215

Restriction re: light, air, support or flow of an artificial stream can be neg easement or restrictive cov. Any other restricts considered only restrictive covenants.

Front 216

Easement is appurtenant when

Back 216

it benefits the holder in his physical use or enjoyment of another tract of land. For easement appurtenant there must be 2 tracts of land: dominant (benefitted) & servient (estate subj to easement right)

Front 217

Does easement pass w/ transfer of land?

Back 217

1, Yes, benefitted land regardless if mentioned in conveyence
2. Yes, burdened land unless BFP w/o notice

Front 218

Easement in gross

Back 218

holder acquires right to use servient tenement indepedent of another tract of land

Front 219

Is easement in gross transferable?

Back 219

No if for holder's personal pleasure (swin in the pond). Yes if it serves an ec or commercial interest (erect a billboard).

Front 220

Methods of creating easements

Back 220

1. express grant (writing required except less than 1 yr)
2. express reservation
3. implication
4. prescription

Front 221

Express grant must be

Back 221

in writing signed by holder of servient tenement (unless duration less than 1 yr), comply w/ requirements of deed

Front 222

Easement by reservation

Back 222

arises when a grantor conveys title to land but reserves the right to continue to use tract for a special purpose. Must be for grantor--attempt to reserve easement for someone else is void.

Front 223

Easement by implication is

Back 223

1. created by operation of law
2. exception to SoF

Front 224

3 types of easements by implication

Back 224

1. easement implied from existing use (quasi easement)
2. easement implied w/o any existing use
3. easement by necessity

Front 225

Easement from existing use (quasi easement) may be implied if

Back 225

1. prior to the division of a single tract
2. an apparent & continuous use exists on the "servient" part
3. that is reasonably necessary for the enjoyment of the "dominant" part and
4. the court determines the parties INTENDED the use to continue after division of the land.

Front 226

Easements can be implied w/o any existing use in what 2 limited sits?

Back 226

1. subdivision plat
2. profit a prendre

Front 227

Easement by necessity arises when

Back 227

a landowner sells a portion of his tract & thereby deprives one lot access to a public road or utility line. Servient lot owner has right to determine location.

Front 228

Easement by prescription when

Back 228

1. open & notorius
2. adverse
3. continuous & uninterrupted
4 for statutory period
5. generally applies only to private land

Front 229

Remedy for servient owner for overuse or misuse of easement

Back 229

injunction against the misuse

Front 230

Duty to repair easement

Back 230

easement holder if sole user. Split if both parties use easement.

Front 231

Gen rule about scope of an easement

Back 231

In absence of specific limitations, courts assume easement was intended to meet both present & future needs of dominant tenement. If dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.

Front 232

Does overuse or misuse of an easement terminate the easement?

Back 232

No the appropriate remedy for the servient owner is an injunction against the misuse.

Front 233

Ways easements can be terminated (8)

Back 233

1. stated cond/ns
2. unity of ownership (merger)
3, release
4. abandonment
5. estoppel
6. prescription
7. end of necessity
8. condemnation & destruction

Front 234

License

Back 234

privilege to go onto land of another; revocable at will of the licensor. Failed attempt to create easement results in a license.

Front 235

License becomes irrevocable if

Back 235

1. licensee invests substantial $ or labor in reliance on the license, licensor is estopped to revoke.
2. license coupled w/ an interest

Front 236

Profits entitle

Back 236

holder the benefit of taking some resources from the servient estate. writing required. Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources.

Front 237

What is implied in every profit?

Back 237

the right to enter the land to take whatever the holder is entitled to take

Front 238

All rules governing easements apply to profits plus

Back 238

profit may be extinguished through surcharge (misuse that overly burdens servient estate)

Front 239

Covenants running w/ the land (real covenant)

Back 239

1. normally found in deed
2. written promise to do or not do somethg on land.
3. run w/ land

Front 240

Requirements for burden of covenant to run w/ the land

Back 240

1. intent (for successors to be bound)
2. notice (purchasers for value)
3. horizontal privity (at time of promise, 2 original parties must have shared some interest in land independent of covenant)
4. vertical privity (some nonhostile--can't be adverse possession-- nexus between one of the original parties and a later purchaser)
5. touch & concern

Front 241

Requirements for benefit of covenant to run w/ the land

Back 241

1. intent
2. verticle privity
3. touch & concern

Front 242

Is horizontal privity required in covenant running w/ the land

Back 242

No--sit in which the promisee's successors can enforce covenant against the promisor but not against the promisor's successors.

Front 243

Remedy for breach of real covenant

Back 243

promises to pay $ damages. If injunction is sought, the promise must be enforced as an equitable servitude rather than real covenant.

Front 244

Ways real covenant can be terminated

Back 244

1. written release
2. merger
3. condemnation of the burdened prop

Front 245

Equitable servitudes

Back 245

promise to do or not do something on the land and usual remedy is injunction. For burden to run: requires writing, intent to bind successors, successor of promisor has to have actual, inquiry or record notice of the servitude and covenant must touch and concern the land. For benefit to run, intent and touch and concern elements are required. In contrast to covenants, no privity of estate is required.

Front 246

Equitable servitudes created by

Back 246

covenants contained in a writing that satisfied SoF w/ exception of negative equitable servitudes implied from a common development scheme

Front 247

Common scheme (for implied reciprocal negative servitudes) applies

Back 247

only if at the time sales in subdivision began, the developer had a plan that all parcels would be subject to the restriction. This must be evidenced by (1) recorded plat; (2) gen pattern of restrict/ns OR oral representat/ns to early buyers.

Front 248

to be bound by covenant not in deed, grantee must have had

Back 248

notice--actual, inquiry, record

Front 249

Actual notice is

Back 249

direct knowledge

Front 250

Inquiry notice occurs when

Back 250

neighborhood appears to conform to common restric/ns

Front 251

Record notice means

Back 251

prior deed w/ covenant in grantee's chain of title

Front 252

Requirements of equitable servitude for benefit to run

Back 252

1. intent of original parties
2. servitude touches & concerns land

Front 253

Requirements of equitable servitude for burden to run

Back 253

1. original parties intended to bind successors
2. successor of promisor has notice
3. covenant touches & concerns the land

Front 254

Equitable servitude may be extinguished by

Back 254

1. written release
2. merger
3. condemnation of the burdened prop
4. equitable defenses

Front 255

Equitable defenses to enforcement of equitable servitude (5)

Back 255

1. unclean hands
2. benefited party has acquiesed to violation
3. estoppel b/c reasonable person would view benefited party's behavior meant abandonment
4. laches OR
5. significantly changed neighborhood

Front 256

Example of unclean hands def in enforcing equitable servitude

Back 256

Person seeking enforcemant is violating similar restrict/n on his own land

Front 257

What may terminate an equitable servitude?

Back 257

1. written release from the benefit holders
2. merger of the benefitted & burdened estates or
3. condemnation of the burdened prop

Front 258

Courts will view party walls & common driveways

Back 258

as belonging to ea owner w/ extent it rests on owner's land & implyy mutual cross easements of support--i.e. ea can use & neither can destroy unilaterally

Front 259

To create party walls & common driveways

Back 259

1. Express: written per SoF
2. "irrevokable license" can arise from detrimental reliance on a parol agreement.
3. implication
4. prescription

Front 260

If prop owners agree to be mutually responsible for maintaining a wall or driveway, do the benefits & burdens run to successive owners?

Back 260

Yes

Front 261

Adverse possession--requirements

Back 261

1. Actual & exclusive possession
2. open & notorius possession
3. hostile
4. Continuous for stat period

Front 262

When does adverse possession statute begin to run?

Back 262

when true owner can 1st bring suit. Filing a suit will not stop the period from running; however the suit must be pursued to judgment.

Front 263

Exclusive means (adverse possession)

Back 263

adverse possessor is not sharing w/ true owner

Front 264

Adverse possessor will gain title only to land

Back 264

actually occupied except if occupation is under color of title to entire parcel

Front 265

Open & notorius (adverse possession) is the sort of use

Back 265

the true owner would make of prop; must be sufficiently apparent to put the true owner on notice that a trespass is occurring

Front 266

Hostile (adverse possession) means

Back 266

w/o permission

Front 267

Co-tenants & adverse possession

Back 267

Ea co-T has right to possess whole, so co-T must oust others or make an explicit declaration that he is claiming exclusive dominion to create possibility adverse possession.

Front 268

What is presumption if a grantor stays in possession of land after conveyance?

Back 268

She is presumed to be in there w/ permission of the grantee. (likewise if T remains in possession after expiration of the lease, he is presumed to have permission of L)

Front 269

Is continuous possession required for adverse possession?

Back 269

Yes, but constant use not required as long as possession is of a type the real owner would make. Also can TACK her own possession on to predecessors if PRIVITY.

Front 270

Is adverse possessor required to pay prop taxes

Back 270

Generally no but such paymt provides evid of a claim of right.

Front 271

Effect of disability of true & adverse possession

Back 271

SoL does not begin to run if the true owner was under some disability WHEN THE CAUSE OF AC/N 1ST ACCRUED.

Front 272

When does SoL begin to run against the holder of a future interest? (re adverse possession)

Back 272

Not until it becomes possessory (i.e. right of entry must be asserted by grantor)

Front 273

Is adverse possessor bound by restrictive covenants in true owner's deed?

Back 273

No if adverse possessor violated covenants. Yes if he complied.

Front 274

Land that cannot be adversely possessed

Back 274

1. Govt land
2. Land under Torrens system

Front 275

What is Torrens sytem?

Back 275

Australian sys for establishing title to land in wh claimant 1st acquires an abstract of title & than applies to a court for the issuance of a title cert. Been adopted by serveral US counties.

Front 276

Land sale Ks must

Back 276

1. be in writing
2. signed by party to be charged
3. contract essential terms

Front 277

Essential terms of land sale K

Back 277

1. parties
2. description of land
3. $

Front 278

What can take land sale K out of SoF?

Back 278

Conduct that unequivocally indicates parties have Ked for the sale of land. Jurisd/s vary as to conduct required. Usually at least 2: payment (whole or part), possession &/or valuable improvements.

Front 279

Doctrine of equitable conversion

Back 279

Once land sale K signed,equity regards B as the owner. S's interest (right to proceeds of sale) is considered personal prop. Bare legal title that remains in the S considered to be held in trust for the B. Right to possession follows the bare legal title, however; thus the S is entitle to possession until closing.

Front 280

Risk of loss rules under doctrine of equitable conversion

Back 280

MAJ: If prop is destroyed (w/o fault of either) risk is on B.
Some states: Uniform Vendor & Purchaser Risk Act places risk on S unless B has title or possession at time of loss.

Front 281

Death & doctrine of equitable conversion

Back 281

If party to land sale K dies before K completed, S's interest passes as personl prop & the buyer's interest passes as real prop.

Front 282

NOTE: Ademption & equitable conversion

Back 282

Ademption statutes take precedence over equitable conversion doctrine. If T does not own specific devise (gift of land is always specific) at the time of death, the gift fails. If land sale K executory, devisee gets proceeds in place of land

Front 283

Marketable title

Back 283

title reasonably free from doubt & free from ?s wh present unreasonable risk of litigation

Front 284

Defects in chain of title which make title unmarketable

Back 284

1. variation in land descrip/n
2. defectively executed deed
3. evidence that a prior grantor lacked capacity to convey

Front 285

Does title acquired by adverse possession render title unmarketable?

Back 285

Yes on MBE despite the fact that most modern cases are contra.

Front 286

Are future interests held by unborn or unascertained parties unmarketable?

Back 286

Yes--though future interests are transferable, courts will not appoint a guardian to represent unborn or unascertained parties for land sale conveyences.

Front 287

If mortgage will be satisfied prior to closing, can B claim title unmarketable?

Back 287

No S need not provide marketable title until B has made last payment.

Front 288

How do zoning restrictions affect marketability?

Back 288

Zoning restrictions do not affect marketability, but an existing violation of a zoning ordinance does render title unmarketable.

Front 289

B's remedy if title unmarketable

Back 289

1. 1st notify S & give reasonable time to cure defects.
2. If S cannot cure, B's remedies include rescission, damages, specific performance w/ abatement, quiet title suit.

Front 290

Is S of land still liable on Kual warranty after closing?

Back 290

No, once closing occurs & deed changes hands, the K & deed merge & seller's liability on implied Kual warranty ends.

Front 291

Does quit claim deed affect the warranty to provide marketable title?

Back 291

No

Front 292

Is time "of the essence" in land sale Ks?

Back 292

Courts presume no. Closing date not absolutely binding. Late party can still render performance w/in reasonable time.

Front 293

When presumption that time is not "of the essence" overcome in land sale Ks.

Back 293

1. If K so states
2. Circumstances show it was party's intent
3. one party gives the other notice that time of of the essence.

Front 294

Liability for breach for late performance of land sale K if time IS of the essence?

Back 294

Party is in breach & may not enforce the K

Front 295

Liability for breach for late performance of land sale K if time is NOT of the essence

Back 295

Breaching party may be liable for incidental losses.

Front 296

Issue: tender of performance in land sale K

Back 296

B's obligation to pay & S's obligation to convey are concurrent cond/ns. Neither party is in breach until other tenders performance. A party need not tender performance if the other party has repudiated the K or it is impossible for other party to perform.

Front 297

Remedies for breach of land sale K

Back 297

nonbreaching party entitled to damages (diff b/n K price & FMV on date of breach + incidental costs) or b/e land is unique--specific performance.

Front 298

Liquidated damages

Back 298

"earnest $" courts uphold S's right to retain if B defaults provided amt reasonable.

Front 299

Does S of prop have liability for warranty of fitness or quality?

Back 299

MAJ now recognize warranty of fitness or quality in sale of a new house by builder. Other types of land sale Ks, no.

Front 300

Theories of S's liability for defects in existing land & buildings

Back 300

1. Misrepresentation (Fraud)
2. Active concealment
3. Failure to disclose

Front 301

Under misrepresentation theory, S of existing real prop is liable for defects

Back 301

about wh he knowingly or negligently made false stmt of fact if B relied on the stmt & it materially affected the value of the prop.

Front 302

Under active concealment theory, S of existing real prop will be liable

Back 302

w/o making any stmts if he took steps to conceal the defects.

Front 303

Under failure to disclose theory of liability, S of existing real prop will be liable for failure to disclose defect if

Back 303

1. he knows or has reason to know of the defect
2. defect is not apparent & S knows buyer unlikely to discover it in ordinary inspection &
3. defect is serious enough that it would probably cause the buyer to reconsider if known

Front 304

Effect of general disclaimer (e.g. "as is") in land sale Ks

Back 304

is NOT sufficient to overcome S's liability for fraud, concealment or (some states) failure to disclose. If disclaimer specific, it will likely be upheld.

Front 305

Does a title insurance policy "run w/ the land"?

Back 305

No, it protects only the person who owns the policy.

Front 306

When do real estate brokers earn their commission (traditionally & mod trend) ?

Back 306

Traditionally, agents earned their commissions when they produced a buyer who was ready, willing & able to purchase prop. Mod trend is to award commission only if the sale actually closes or it fails, it is the fault of the seller.

Front 307

Real estate brokers represent

Back 307

the seller but have duty to disclose material info about prop if they have actual knowledge of it.

Front 308

Purpose of deeds

Back 308

transfer title to an interest in real prop.

Front 309

Elements of a valid deed

Back 309

1. writing
2. signed by grantor
3. reasonably id parties & land

Front 310

Requirements for deed to validly convey inter vivos gift

Back 310

1. donative intent
2. delivery
3. acceptance

Front 311

If deed delivered w/ name of the grantee left blank, the court presumes

Back 311

person taking delivery has authority to fill in the name & if person fills in a name, deed is valid.

Front 312

If deed delivered w/ land description left blank

Back 312

deed is void unless the grantee was given explicit authority to fill in description.

Front 313

Defective deeds include

Back 313

void & voidable deeds

Front 314

Void deeds include those wh were

Back 314

forged, never delivered or obtained by fraud in the factum.

Front 315

How will court treat void deed?

Back 315

set it aside even if prop has passed to BFP

Front 316

Voidable deeds include those

Back 316

executed by minors or incapacited people and those obtained through fraud in the inducement, duress, undue influence, mistake & breach of fiduciary duty.

Front 317

How will court treat voidable deed?

Back 317

set it aside only if prop has NOT passed to a BFP.

Front 318

Even if deed complies w/ required formalities, it may still be set aside by grantor's creditors if made w/

Back 318

1. actual intent to hinder, delay or defraud any creditor of the grantor or
2. w/o receiving a reasonably equivalent value & debtor was insolvent
3. but will not be set aside as against grantee who took in good faith & paid equivalent value.

Front 319

Deed must contain description of land conveyed which provides

Back 319

a good lead. Parol evid IS generally admissible to resolve patent or latent ambiguities if description gives a good lead. Parol evid NOT admissible where the description is inadequate.

Front 320

Rules of construction where land descriptions are inconsistent or conflicting use the following order or priority:

Back 320

natural monuments (oak tree), artificial monuments (stake, building), courses (angles), distances, name & quantity (e.g. 300 acres)

Front 321

What is the rule about title in boundary cases?

Back 321

In boundary cases, title to land passes to the center of the right of way or water boundary.

Front 322

In changing water boundaries, the slow & imperceptible change in the course of a river or stream

Back 322

operates to change the legal boundary.

Front 323

In changing water boundaries, the sudden change of watercourse (avulsion)

Back 323

does not change ownership rights

Front 324

Accretion is

Back 324

slow deposit of soil on land or abutting water. Belongs to abutting owner.

Front 325

Are fixed boundaries changed by encroachment of water?

Back 325

NO

Front 326

3 sits in wh deed will be reformed (b/e does not represent intent of the parties)

Back 326

1. mutual mistake
2. scrivener's error
3. unilateral mistake caused by misrepresentation

Front 327

To be valid a deed must be

Back 327

delivered & accepted.

Front 328

In real prop transfers, when does title pass?

Back 328

upon delivery. It cannot be cancelled or taken back. To return title to the grantor, the grantee must draw up a new deed & deliver it to the grantor.

Front 329

Is deed to dead person effective?

Back 329

No

Front 330

In general, delievery must show

Back 330

grantor's (1) intent to make deed (2) presently effective.

Front 331

Is parol evidence admissible to show grantor's intent to deliver a deed?

Back 331

Yes

Front 332

Is parol evidence admissible to show grantor's delivery of a deed was conditional?

Back 332

No

Front 333

Does failure to record a valid deed effect the passage of title?

Back 333

No even if the parties believe it is not effective until recording.

Front 334

Effect of a deed expressly conditioned on the grantor's death

Back 334

It is valid & creates a future interest in the grantee

Front 335

Effect of an oral condition contained in a deed absolute on its face delivered directly to the grantee

Back 335

The condition is disregarded and delivery is absolute.

Front 336

Is deed w/ no conditions delivered by grantor to 3rd party w/ instructions to give to grantee valid?

Back 336

Yes

Front 337

Is deed w/ conditions delivered by grantor to 3rd party w/ instructions to give to grantee valid?

Back 337

Not if the 3rd party can be considered the grantor's agent

Front 338

Effect of an oral condition when grantor delivers deed to a 3rd party in a commercial type trans/n

Back 338

a valid cond/nal delivery occurs, & parol evid is admissible to show delivery is cond/nal.

Front 339

In commercial trans/ns involving a cond/nal delivery does grantor have a right to recover the deed?

Back 339

Yes but only if the cond/n has not occurred AND there is not enforceable K to convey

Front 340

Effect of grantee wrongfully acquiring a deed from escrow sit prior to performance of cond/n

Back 340

title does not pass & grantee cannot give good titile to subsequent purchasser.

Front 341

Relation back doctrine w/ re
escrow sits when deed contains cond?

Back 341

If justice requires, title may "relate back" to time when grantor gave the deed to 3rd party (e.g. grantor dies). NOTE: Rights of intervening BFPs are protected.

Front 342

ISSUE: Can grantor revoke deed in donative transfer if grantor has given cond/nal deed to 3rd party?

Back 342

When cond/n is not grantor's death, delivery is irrevokable & donee has a springing executory interest. Courts split if cond/n is grantor's death. Some say revokable unless there is an enforceable K to convey. Others say irrevocable.

Front 343

After delivery, ___________required to complete conveyance. Most states ____________

Back 343

acceptance
presume acceptance

Front 344

Dedication is

Back 344

donation of land or easement for public use which is formally accepted. Includes CL or statutory.

Front 345

3 types of deeds used to convey prop interests other than leaseholds

Back 345

general warranty deed
special warranty deed
quitclaim deed.

Front 346

Diff among general & special warranty deeds & quit claim deed is

Back 346

scope of title assurance or covenants of title

Front 347

Covenant of title is

Back 347

covenant that binds the grantor to insure the completeness, securty & continuance of the title transferred.

Front 348

Real covenants or covenants running with the land

Back 348

written promises to do or not do something on the land. They relate to the land & bind successors indefinitely but do not relate to title.

Front 349

Usual covenants in gen warranty deed

Back 349

1. Covenant of seisin
2. Covenant of right to convey
3. covenant against encurmbrances
4. covenant for quiet enjoyment
5. covenant of warranty
6. covenant for further assurances

Front 350

Covenant of seisin is

Back 350

grantor's promise that he has title & possession at the time of the grant

Front 351

Covenant of right to convey is

Back 351

promise grantor has the authority to make the grant. Title alone will satisfy.

Front 352

Covenant against encurmbrances is

Back 352

promise against encroachments (physical) or encumbrances (e.g. mortgages)

Front 353

Covenant for quiet enjoyment is

Back 353

promise that grantee will not be disturbed in possession by a 3rd party's lawful claim of title

Front 354

Covenant of warranty is

Back 354

promise to defend against reasonable claims of title by a 3rd party and to compensate the grantee for any loss sustained by the claim of superior title.

Front 355

covenant for further assurances

Back 355

promise to perform acts reasonably necessary to perfect title conveyed. (not one of usu. covenants but frequently given).

Front 356

Covenant for quiet enjoyment & covenant of warranty are generally considered to be ____________covenants for title.

Back 356

identical

Front 357

Which of the 3 title covenants are present covenants which can be breached only at the time of conveyance?

Back 357

seisin, right to convey & covenant against encumbrances

Front 358

Which of the 3 title covenants are future covenants which can be breached only upon disturbance of the grantee's possession?

Back 358

quiet enjoyment, warranty & further assurances

Front 359

If a remote grantee is evicted by a lawful claim of title, who can he sue? for how much?

Back 359

anyone up the line. Some states allow him to recover to the extent of cons/n D grantor received. Other states limit recovery to the lesser of what he paid or what defendant covenantor received.

Front 360

Statutory special warranty deed

Back 360

deed under state law in which grantor promises (1) grantor has not conveyed the same estate to anyone else &
(2) the estate is free from encumbrances made by the grantor.

Front 361

Quitclaim deed

Back 361

releases whatever interest the grantor has. No covenants of title are included or implied.

Front 362

Estoppel by deed

Back 362

If grantor purports to convey an estate in prop that he does not own, his subsequent acquisition will automatically inure to the benefit of the grantee. (applies to warranty deed, not to quitclaim deeds.)

Front 363

At CL, if a grantor conveyed the same prop twice, who prevailed

Back 363

first in time

Front 364

In estoppel by deed sit, what if grantor transfers his after acquired title to a BFP?

Back 364

BFP will prevail over the original grantee.

Front 365

What remedies does original grantee have in estoppel by deed sit?

Back 365

Original grantee can accept title or sue for damages for breach of covenant.

Front 366

Recording act

Back 366

law wh establishes requirements for recording a deed or other prop interest & the standards for claiming priorities b/n persons who claims interests in the same prop

Front 367

In gen, who gets protection from the recording acts?

Back 367

BFPs get protection from secret interests previously created & provide a way for "earlier" grantees to give notice through recordation.

Front 368

What is effect of recordation?

Back 368

gives prospective subsequent grantees constructive notice of the existence & content of recorded instruments. It also raises a presumption of valid delivery & authenticity. It does not validate an invalid deed or protect against interests arising by operation of law (e.g. dower, adverse possesor); to this extent, BFPs are still in jeopardy.

Front 369

3 types of recording acts

Back 369

notice statutes
race-notice statutes
race statutes

Front 370

Who prevails under a notice statute?

Back 370

subsequent BFP (i.e. paid value, WITHOUT NOTICE) prevails over a prior grantee who failed to record.

Front 371

Typical language in notice stat

Back 371

No conveyance is valid against any subsequent purchaser for value w/o notice thereof, unless it is recorded.

Front 372

Race-notice stat protects

Back 372

a subsequent BFP only if he takes w/o notice AND records before the prior grantee.

Front 373

Typical language in race-notice stat

Back 373

No conveyance is valid against any subsequent purchaser for value w/o notice thereof whose conveyance is 1st recorded.

Front 374

Who prevails under a race stat?

Back 374

whoever records 1st. Notice irrelevant. Very few states.

Front 375

Typical language in race stat

Back 375

No conveyance is valid against any subsequent purchaser whose conveyance is 1st recorded.

Front 376

Are donees, heirs & devisees protected by recording stat?

Back 376

Not under notice & race notice stats, because they are not BFPs

Front 377

Again, BFP is

Back 377

purchaser w/o notice (actual, constructive, inquiry) who paid valuable consid/n.

Front 378

Is a purchaser from donee protected?

Back 378

yes against prior unrecorded conveyances of the record owner.

Front 379

Is a mortgagee for value considered a BFP?

Back 379

Yes

Front 380

Is a judgment creditor protected by recording stat?

Back 380

Most states permit judgment creditor to file a lien on D's real prop. But MAJ hold such a judgment creditor is NOT protected by the recording stat against a prior unrecorded conveyance by D.

Front 381

Shelter rule

Back 381

A person who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against.

Front 382

Do recording stat protect a purchaser under an installment land K?

Back 382

most states: only to the extent of $ paid. Court may award the purchaser (1) share of prop as T in common (2) lien on prop = $ paid or (3) entire prop subj to lien on prop the extent of balance still owed.

Front 383

w/o notice means

Back 383

Purchaser had no actual, constructive (record) or inquiry notice of a prior conveyance at the time she paid consideration & received the interest--i.e. AT THE TIME OF THE CONVEYANCE

Front 384

Record notice & chain of title

Back 384

means that subsequent purchaser will be held to have record notice if it is recorded in a way that searcher could reasonably find it.

Front 385

"Wild deed" is

Back 385

recorded deed that is not in the chain of title usu. b/e previous instrument connected to chain of title has not been recorded--does not impart constructive notice b/e subsequent purchaser could not feasibly find it.

Front 386

Deed recorded late

Back 386

deed recorded AFTER the grantor is shown by record to have parted w/ title through another subsequent instrument-- is not constructive notice in most states (but is in some race-notice juris/ns)

Front 387

Effect of deed recorded before grantor obtained title

Back 387

split of authority: Most courts say a recorded deed received from grantor who did not have title but who afterwards gained title does not give constructive notice to BFP. MIN protects the prior grantee over the BFP on an estoppel by deed theory (see #322, 323)

Front 388

Are restrictive covenants in deeds of adjacent lots by same grantor w/in chain of title on subj lot?

Back 388

Courts split. Better view, no.

Front 389

Inquiry notice

Back 389

notice attributed to a purchaser when the info would lead an ordinarily prudent person to investigate further. Even if person did not make any inquiry, he is charged w/ what would have been revealed.

Front 390

What is valuable consideration?

Back 390

To get protection from recording stat, person must prove he is purchaser not donee. $ does not have to be adequate but must be of some pecuniary value.

Front 391

2 types of title searches

Back 391

tract index
grantor & grantee index

Front 392

Tract index

Back 392

usu. kept in county's recorder's office listing by location of ea parcel of land, the volume & page # of the recorded prop trans/ns affecting the parcel.

Front 393

grantor-grantee index

Back 393

An index, usu. kept in the county recorder's office, alphabetically listing by grantor the volume & page # of the grantor's recorded prop trans/ns.

Front 394

Effect of recordation

Back 394

gives propspective subsequent grantees constructive notice of the existence & content of recorded instruments. Also raises the presumption of valid delivery & authenticity--but does not validate an invalid deed or protect against interests arising by operation law (e.g. dower, adverse possession).

Front 395

If recorder makes a mistake in indexing a subsequent purchaser

Back 395

is charged w/ notice anyway but may have a cause of ac/n against the recorder's office.

Front 396

If acknowledgement of a deed is defective for reasons not apparent on the fact, a subsequent purchaser

Back 396

will probably still be charged w/ constructive notice.

Front 397

Ademption

Back 397

A specific gift in a will fails if T no longer owns it at time of death. A gift of prop is always a specific gift b/e land is unique.

Front 398

Ademption & executory Ks

Back 398

Most states do not apply the ademption doctrine to a land sale K. If T is seller in executory land sale K, the devisee gets the proceeds in place of the land. If T is buyer in executory land sale K, the devisee gets prop.

Front 399

Other prop not subj to ademption includes

Back 399

$ from insurance proceeds not paid until after T's death on prop damaged or destroyed. That is, beneficiary of specific bequest takes the insurance proceeds.

Front 400

In CA (& MIN), ademption

Back 400

depends on T's intent at time he disposed of item during his lifetime.

Front 401

Exoneration doctrine

Back 401

CL: devisee of specific prop entitled to have liens & mortgages paid off from T's residuary estate. MOD: growing trend to abolish.

Front 402

In CA does beneficiary of will have the right of exoneration?

Back 402

No, in CA a specific devise of prop takes SUBJECT TO any lien existing on the day of death.

Front 403

Lapse

Back 403

When the beneficiary of gift in a will dies before T, CL, gift void.

Front 404

Anti-lapse stat.

Back 404

Under state probate law, a stat that gives a bequest to the heirs of the beneficiary if the beneficiary dies before T dies--prevent lapse by permitting gift in will to pass to predeceasing beneficiary's living descendants.

Front 405

Anti-lapse stat does not apply if

Back 405

will expressed a contrary intention.

Front 406

In CA, anti-lapse stat applies only if predeceased devisee was

Back 406

kindred of T or kindred of a surviving, deceased or former spouse or domestic partner of T.

Front 407

Does anti-lapse stat apply if beneficiary already dead when will executed?

Back 407

No gift will then fail.

Front 408

Does anti-lapse stat appply to member of a class gift?

Back 408

yes, class gift's issue will take the deceased member's share

Front 409

Abatement

Back 409

If the estate assets are not sufficient to pay all claims against the estate, gifts are reduced.

Front 410

If estate assets are not sufficient, most states and CA abate in the following order

Back 410

1. intestacy
2. residuary estate
3. general legacies to persons other than T's relative
4. general gifts to T's relative
5. specific gifts to persons other than T's relative
6. specific gifts to Ts relatives

Front 411

Emblements are

Back 411

growing crops produced by labor as opposed to crop growing naturally. Also called fructus industriales.

Front 412

Generally, does conveyance of land includes crops growing on it?

Back 412

Yes

Front 413

When are crops not included in conveyance of land?

Back 413

1. crops that have already been harvested or severed from land
2. crops planted by a tenant during a tenancy of uncertain duration which ends through no fault of the tenant.

Front 414

List 5 types of security interest in real prop

Back 414

1. Mortgage
2. Deed of trust
3. Installment land K
4. Absolute deed
5. Sale-leaseback

Front 415

In a mortgage, the debtor/notemaker is the

Back 415

mortgagor.

Front 416

In a mortgage,the lender is the

Back 416

mortgagee.

Front 417

On default of mortgage, the lender can get prop

Back 417

only by having a foreclosure sale conducted by the sheriff.

Front 418

In deed of trust, the debtor/notemaker is the

Back 418

trustor.

Front 419

In a deed of trust, the trustor gives a deed of trust to a

Back 419

3rd party trustee

Front 420

In a deed of trust, the trustee is usu. closely connected to

Back 420

the lender or beneficiary

Front 421

In deed of trust, on default

Back 421

the lender instructs the trustee to foreclosee the deed of trust by sale.

Front 422

In an installment land K

Back 422

an installment purchaser obtains legal title only when the full K $ has been paid off. Forfeiture clauses are common.

Front 423

Absolute deed is

Back 423

a deed that conveys title w/o cond/n or encumbrance.

Front 424

If an absolute deed is given for security purposes, it can be treated by court as an

Back 424

equitable mortgage (intent but not form of a regular mortgage); viewed as any other mortgage (i.e. creditor must foreclose by judicial ac/n)

Front 425

Sale-Leaseback

Back 425

A landowner may sell her prop for cash & then lease it back from the purchaser for a long period of time. Like an absolute deed, this may be treated as a disguised mortgage.

Front 426

note

Back 426

written promise by one party (the maker) to pay to another (the payee) or to bearer.

Front 427

mortgage note

Back 427

a note evidencing a loan for wh real prop has been offered as security

Front 428

Can mortgage be tranferred w/o the note?

Back 428

yes in some states but transfer not complete, and transferee can immediately file equitable ac/n to compel transfer of the note also. Usu. transfer of mortgage automatically transfers note. Other states transfer of mortgage w/o note void.

Front 429

Can note be transferred w/o the mortgage?

Back 429

Yes, but the mortgage will automatically follow the properly transferred note, unless the mortgagee-transferor expressly reserves the rights to the mortgage. No sep written assignment of the mortgage is needed.

Front 430

Methods of transferring a mortgage note

Back 430

1. endorsing & delivering it to transferee
2. sep document of transfer

Front 431

Only by the endorsement & delivery method of transferring a mortgage note can the transferee become a

Back 431

holder in due course

Front 432

holder in due course

Back 432

A person who in good faith has given value for a negotiable instrument that is complete & regular on its face, is not overdue or dishonored.

Front 433

In addition to endorsement & delivery, for transferee of a mortgage note to be a holder in due couse

Back 433

the note must be negotiable in form (e.g. payable "to bearer" w/ promise to pay a sum certain & no other promises); transferee must take the note in good faith & pay value.

Front 434

Benefits of holder in due course status

Back 434

freedom from any personal defenses of the maker (e.g. failure of consid/n, fraud in the inducement, waiver, estoppel & payment); but still subj to real defenses.

Front 435

If mortgagor does not get notice of transfer of mortgage note is his payment to the original mortgagor effective?

Back 435

Yes, new mortgagee's only recourse is to recover from the original mortgagee.

Front 436

If mortgagor transfers prop subj to mortgage

Back 436

transferee signs assumption agreement & becomes primarily liable to lender while original mortgagor is secondarily liable as surety,

Front 437

If mortgagor & transferee who has assumed mortgage make any modification of original agreement, the original mortgagor is

Back 437

discharged from all liability.

Front 438

If mortgagor transfers prop w/o transferee assuming mortgage

Back 438

the grantee is not personally liable on the loan; and if original mortgagor does not pay, the loan may be foreclosed.

Front 439

Due on sale clauses

Back 439

most modern mortgages allow the lender to demand full payment if the mortgagor sells the prop.

Front 440

Foreclosure is

Back 440

legal proceeding to terminate a mortgagor's interest in prop, instituted by mortgagee either to gain title or to force a sale in order to satisfy the unpaid debt secured by the prop

Front 441

3 theories of title

Back 441

lien theory
title theory
intermediate theory

Front 442

In the the lien theory,

Back 442

mortgagee is considered a holder of a security interest only; mortgagor is deemed the owner of the land until foreclosure.

Front 443

In lien theory states, may mortgagee get possession of prop before foreclosure?

Back 443

No

Front 444

In the title theory,

Back 444

legal title is in the mortgagee untill the mortgage has been satisfied or foreclosed.

Front 445

In title theory states, may the mortgagee gain possession of prop before foreclosure

Back 445

Yes.

Front 446

Intermediate theory

Back 446

legal title is in the mortgagor until default; and upon default, legal title is in the mortgagee.

Front 447

In intermediate (few) states, may the mortgagee gain possession of prop before foreclosure?

Back 447

Yes

Front 448

If mortgagor abandons prop or gives consent, may mortgagee gain possession of prop?

Back 448

Yes under any title theory.

Front 449

Why do most mortgagees do not want to take possession of prop?

Back 449

risks of liability (e.g. account for rents, managemt duties, tort liability)

Front 450

receivership

Back 450

appointment usu. by court of disinterested 3rd party to manage prop that is subj to diverse claims

Front 451

Courts generally appoint receivers to manage prop subj to foreclosure if

Back 451

1. waste is occurring
2. value of prop inadequate to secure debt
3. mortgagor is insolvent

Front 452

types of mortgage foreclosure ac/ns

Back 452

judicial foreclosure
power of sale foreclosure

Front 453

judicial foreclosure

Back 453

costly & time consuming foreclosure method by wh the morgaged prop is sold through a court proceeding requiring many standard legal steps.

Front 454

power of sale foreclosure

Back 454

process by wh, according to mortgage instrument & a state stat, mortgaged prop is sold at a nonjudicial public sale w/o stringent notice requirements, burdens & delays of a judicial foreclosue.

Front 455

mortgage redemption

Back 455

payment of defaulted mortgage debt by a borrower who does not want to lose prop

Front 456

types of mortgage redemption

Back 456

redemption in equity
statutory redemption

Front 457

redemption in equity

Back 457

Mortgagor may redeem prop by paying $ due AT ANY TIME PRIOR TO FORECLOSURE SALE. If acceleration clause, full balance of note or mortgage must be paid to redeem.

Front 458

Can a redemption in equity be waived in the mortgage itself?

Back 458

No

Front 459

Statutory redemption

Back 459

In about 1/2 of state, mortgagor allowed to redeem prop for some fixed period (e.g. 6 mos) AFTER FORECLOSURE SALE.

Front 460

Priority among diff mortgage holders usu determined

Back 460

by time placed on prop.

Front 461

When does foreclosure not destroy junior interests

Back 461

when holder of jr. interest not included in a foreclosure ac/n.

Front 462

When does chronology NOT determine priority of mortgage holders?

Back 462

1. operation of recording stats if a prior mortgagee fails to record
2. purchase $ mortgage
3. subordination agreement b/n sr. & jr. mortgagee
4, jr. mortgagee has priority over sr mortgage modification or
5. jr. lien has priority over advances made by sr.

Front 463

Purchase $ mortgages

Back 463

given in exchange for $ used to purchase the prop; have priority over prior non purchase $ mortgages even if recorded 1st.

Front 464

When more than one purchase $ mortgage, which has priority?

Back 464

seller's mortgage over a 3rd party's; if more than one 3rd party, chronological

Front 465

Order of distribution of proceeds of foreclosure sale

Back 465

1. attorney's fees & court costs
2. pincipal & accrue interest of the foreclosed loan
3. any other jr. interests
4. mortgagor

Front 466

To avoid the harsh forfeiture remedy in most installment land Ks, court actions include

Back 466

1. equity of redemption
2. restitution
3. treat as a mortgage
4. waiver
5. election of remedies

Front 467

When courts use the equity of redemption to address default of a land sale K,

Back 467

the K purchaser is given a grace period to pay the accelerated full balance of the K & keep prop after default.

Front 468

When courts use the restitution to address default of a land sale K

Back 468

forfeiture is allowed but the purchaser gets $ paid back

Front 469

When courts use waiver to address default of a land sale K

Back 469

courts strictly interpret vendor's pattern of accepting late payments as waiver of right to strict performance unless borrower is given reasonable notice & time to make up late payments.

Front 470

When courts use election of remedies to address default of a land sale K

Back 470

the vendor must choose only one remedy (damages or specific performance) & forgo others.

Front 471

Land owner's right to lateral support includes

Back 471

right to have land supported in its NATURAL STATE by adjoining land.

Front 472

If a landowner's excavation causes adjacent land in natural state to subside,

Back 472

landowner is STRICTLY LIABLE

Front 473

If a landowner's excavation causes damage to adjacent land w/ buildings,

Back 473

landowner is strictly liable only if it is shown land would have collapsed in its natural state. Otherwise, landowner is liable if excavation was NEG.

Front 474

Landowner's right to subjacent support

Back 474

is right to have land supported by the earth that lies underneath.

Front 475

Liability of an underground occupant of land (e.g. mining co)

Back 475

1. must support surface & buildings existing on date subjacent estate created
2. is liable for subsequently erected buildings only if NEG.

Front 476

Land owner's water rights depend on type of water wh include

Back 476

1. watercourses
2. groundwater
3. surface waters

Front 477

Watercourses include

Back 477

streams, rivers, lakes

Front 478

What 2 doctrines establish who owns water in water courses?

Back 478

Riparian doctrine
Prior appropriation doctrine

Front 479

Under riparian doctrine, water belongs to

Back 479

those who own land bordering watercourse.

Front 480

Riparian rights are determined by which 2 theories?

Back 480

1. natural flow
2. reasonable use

Front 481

Under the natural flow theory

Back 481

a reparian owner's use resulting in substantial or material diminution of the water's quantity, quality or velocity is enjoinable.

Front 482

Under the reasonable use theory,

Back 482

(most common) all riparians share the right of "reasonable use" which does not substantially interefere w/ other reparian's use.

Front 483

What factors do courts look at to determine whether riparian has violated reasonable use?

Back 483

1. alteration of flow
2. purpose of use
3. pollution
4. extent of use
5. destination of water taken
6. misc conduct giving rise to litigation.

Front 484

Under either natural flow or reasonable use theory,

Back 484

natural uses prevail over artificial ones.

Front 485

Under prior appropriate doctrine

Back 485

individuals acquire rights to water by actual use & among those who border on a watercourse, the earliest users have a right to take all they can use before anyone else has a right to it.

Front 486

Groundwater of percolating water is

Back 486

diffuse underground water recovered through wells

Front 487

What 4 doctrines are used to determine rights to groundwater?

Back 487

1. absolute ownership doctrine
2. reasonable use doctrine
3. correlative rights doctrine
4. appropriative rights doctrine

Front 488

Under the absolute ownership doctrine, groundwater

Back 488

belongs to the owner of the overlying land who can take all the water he wishes for any purpose. Followed in about 12 eastern states

Front 489

Under the reasonable use doctrine, groundwater

Back 489

can be used by the overland prop owner for any purpose except exporting water which harms others having rights in same aquifer. About 25 states follow.

Front 490

Under the correlative rights doctrine, owners of the overlying land

Back 490

own the underground water basin as joint tenants. CA follows.

Front 491

Under the appropriative rights doctrine,

Back 491

priority of use of ground water (not ownership of overlying land) is determinative. Folowed in some western states.

Front 492

Surface waters are

Back 492

water w/o a channel that passes over land such as rainfall, seepage, etc.

Front 493

Issues re: surface water usually concern

Back 493

liability for changing natural flow by dykes, drains, etc.

Front 494

States follow what 3 different theories w/ re to liability for surface waters?

Back 494

natural flow theory
common enemy theory
reasonable use theory

Front 495

Under the natural flow theory of surface waters,

Back 495

owners cannot alter the natural drainage patterns. Some states soften to allow "reasonable changes." About 1/2 states

Front 496

Under the common enemy theory of surface waters,

Back 496

owners can take any protective means to get ride of water. Modified by many courts to prohibit unnecessary damage to others' lands. Used in almost 1/2 states.

Front 497

Under the reasonable use theory of surface waters,

Back 497

the utility of the use is balanced against the gravity of the harm. Used in growing # of states.

Front 498

Though prop owner's rights to air space not exclusive,

Back 498

owner is entitled to freedom from excessive noise.

Front 499

Remedies of possessor of real prop for invasion include

Back 499

1. trespass
2. private nuisance
3. continuing trespass
4. ejectment or unlawful detainer

Front 500

Cooperative

Back 500

Title to buildings or land is held by corp wh leases ind apts to SHs.

Front 501

re Cooperatives & financing

Back 501

seen as a single unit so all SHs are dependent on ea other for mortgage paymts.

Front 502

Are restrains on alienation allowed in cooperatives?

Back 502

Yes, b/e of interdependence & fact SHs are seen as tenants

Front 503

Divison of ownership in a condominium

Back 503

Ind holds a fee simple as to his own space while owning an undivided share of the common areas.

Front 504

Are restrains on alienation valid in condominiums?

Back 504

No, b/e treated as fee ownership.

Front 505

Generally zoning statutes control use of land for

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health, safety, morals & welfare of citizens.

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Zoning power based on

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state's police power & authorized by state enabling acts.

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Zoning power limited by

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Due Process & Equal Protection Clauses of the 14thA & "no takings w/o justification" clause of 5thA.

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Nonconforming use

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is use existing at time zoning law is passed that does not conform to the stat & can't be eliminated at once.

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Special use permit

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one that must be obtained even though use fits zoning requirments (such as hopital, funeral home, etc)

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Variance

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is a land use which departs from the literal restrictions of a zoning ordinance granted by admin ac/n.

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Zoning ordinances are generally invalid if

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1. have no reasonable re/ship to pub welfare
2. are too restrictive
3. are racially discriminatory
4. beyond grant of authority
5. violate due process
6. are discriminatory as to a specific parcel

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A zoning ordinance constitutes a taking under the 5th & 14th As if

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it denies all ec value

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If a zoning ordinance denial NEARLY all ec value, courts will determine if there was a taking by

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balancing (1) the social goals of the regulation, (2) the diminution in value of the prop & (3) the owner's reasonable expectations for use of the prop

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Govt demands that landowner give up some land for pub use in exchange for zoing approval unCon unless govt proves

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1. demands are rationally connected to added burden the project will place on public facilities or rights (essential nexus) &
2. dedication is reasonably re/d to nature & extent the impact of the proposed development will have in community.

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Remedies for regulation constituing a taking

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1. just compensation or
2. terminate the reg & pay owner damages for the temp taking.