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167 Cards in this Set

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FREEHOLD ESTATES: What is the fee simple absolute?
Largest estate known to law. Runs forever and is fully alienable.

Creation: Courts will presume a fee simple unless language shows a clear intent to create another estate.

Rights of first refusal OK
FREEHOLD ESTATES: What is a life estate?
It is never measured by time but only by life.

Can arise by implication. A LIFE ESTATE CAN HAVE A PROVISION RESTRICTING ALIENABILITY.
FREEHOLD ESTATES: What is a life estate per autrie vie?
Life estate by the life of other.

If the holder of the estate dies, the property passes to the life estate beneficiary's estate until the measuring life dies.
FREEHOLD ESTATES: What is the doctrine of waste?
The life tenant has to maintain the estate, he should continue the use of the land in its present condition.
FREEHOLD ESTATES: What is voluntary waste?
Any affirmative action beyond the act of maintenance causing harm to the property.

Ask: Is the activity the normal use of the land, was it a coal mine before?

i.e. Sale of crops is not waste
FREEHOLD ESTATES:
What is permissive waste?
Life tenant has failed to maintain the land. Tenant must do three things to avoid permissive waste

1. Repair, ordinary repairs
2. Taxes, life T pays
3. Interest in mortgage not principal, holder of future interest pays principal
FREEHOLD ESTATES: What is the limitation on life tenant's liability for permissive waste?
1. Income received from land

2. If life tenant is using the land, the reasonable rental value of the land

Life tenant doesn't have to insure the property.
FREEHOLD ESTATES: What is ameliorative waste?
When the affirmative act alters the property substantially but you make it more valuable.

Rule: If changed conditions have made the property relatively worthless, the life tenant can tear it down w/o liability to the holder of the future interest.
FREEHOLD ESTATES: What is a class gift?
Gift to a class of unnamed persons.

Members of the class who predeceased the testator do not recover, their gift lapses.

Once class is established when the will executed, the class stays open to accommodate those who later meet the definition of class member.
FREEHOLD ESTATES: What is the rule of covenience?
class closes when any one of the class is entitled to a distribution.
FUTURE INTERESTS: What are the five future interests?
1. Reversion
2. Possibility of reversion
3. Right of Entry
4. Remainder
5. Executory Interest
FUTURE INTERESTS: What are the future interests retained by the grantor?
1. Reversion
2. Possibility of reverter
3. Right of Entry
FUTURE INTEREST: What is a reversion?
Is the interest kept by grantor when grantor gives LESS than the durational estate that he has.

Never subject to the rule against perpetuities
FUTURE INTEREST: What is a possibility of reverter?
If a grantor gives away a fee simple determinable the grantor keeps a possibility of reverter.

Not subject to the rule against perpetuities
FUTURE INTEREST: What is a fee simple determinable?
A fee simple determinable ends automatically when the condition happens.

Words: while, during, until, so long as...
FUTURE INTEREST: What is a right of entry or power of termination?
When a grantor gives a fee simple on a condition subsequent, grantor keeps a right of entry or power of termination. Not subject to the rule against perpetuities. Right of entry cannot be conveyed intervivos.

Words: provided however, but if, upon condition that...if grantor says "for the purpose of" then those words don't create a right of re-entry or automatic termination.
IF YOU DON'T SEE THE GRANTOR RESERVING THE RIGHT OF ENTRY, IT'S NOT A POWER OF TERMINATION.

KANSAS: YOU DON'T NEED TO RESERVE A RIGHT OF ENTRY AS LONG AS YOU HAVE THE WORDS.
FUTURE INTERESTS: What are the 2 interests created in a transferee?
Remainder and Executory Interests
FUTURE INTERESTS: What makes a remainder vested?
A remainder is vested if nothing stays in the way of becoming possessory on the expiration of the estate that comes before it. No conditions to satisfy.
FUTURE INTERESTS: What is a vested remainder subject to open?
AKA Subject remainder subject to partial divestment.

Where a remainder interest is to a class where the class members are not fully known the class remains open.

Open means to allow for future siblings.
FUTURE INTERESTS: What is a contingent remainder?
Something has to happen or be known before the remainder can become possessory. They operate at the natural termination of the preceding estate.

3 situations:
1) Where there is a condition that must be satisfied

2)When the grantee is not in existence

3. When Identity of exact taker is unknown (A to B for life, then to B's widow.)
FUTURE INTERESTS: What is an executory interest?
A future interest in a grantee. It operates to cut short the estate that comes before it.

O to A for life then to B and his heirs; but if B married X, then to C and his heirs. B has a vested remainder subject to an executory interest or vested remainder subject to complete divestment.

Watch for punctuation.
FUTURE INTERESTS: Can the holder of an executory interest sue the life tenant for waste?
No, only holders of remainders can sue the life tenants for waste.

O to A for life, then to B; but if B marries X then to D.

Here, D could not sue either A or B for waste.
FUTURE INTERESTS: What is a shifting executory interest?
If an executory interests operates by taking title from one grantee and giving it to another grantee than it's a shifting exec. interest.

O to A for life then to B and his heirs; but if B is not survived by issue, then to C and his heirs. It shifts to C.
FUTURE INTERESTS: What is a springing exec. interest?
If it operates by taking title by the grantor and giving it to the grantee.

O to A for life, then to B and his heirs; but if B marries X then to C one year after B marries.
FUTURE INTERESTS: What is the rule against perpetuities?
An interest is invalid unless it must vest if at all no later than 21 years after some life in being at the creation of the interest.

Only applies to contingent remainders, exec. interests, and vested remainders subject to open.

Who is the life in being? Ask, could everyone alive at the time of the grant die and then more than 21 years pass before the vesting occurs.
FUTURE INTERESTS: O to B for life so long as liquor is not sold on the premises; but if it is EVER sold, then to C and his heirs, what kind of interest is this?
This is a fee simple determinable subject to an exec. interest but it is invalid as violates the rule against perpetuities. Because liquor can be sold after everyone that was alive during the grant dies, more than 21 years.

O then gets a possibility of reverter.

VALIDITY OF A GRANT IS DETERMINED AT THE TIME OF CREATION, IT DOESN'T MATTER IF IT ACTUALLY DOES TURN OUT AND VESTS WITHIN THE RULE.
FUTURE INTERESTS: How does the rule against perpetuities in Kansas?
YOU WAIT AND SEE IF THE INTEREST ACTUALLY DOES VEST WITHIN 21 YEARS AT THE LIFE IN BEING, CONTRARY TO THE COMMON LAW RULE.

THE COURT CAN ALSO CHANGE THE LANGUAGE OF THE GRANT TO MAKE SURE THAT THE RULE IS NOT VIOLATED. SO IN KS THE RULE HAS BEEN ELIMINATED.
FUTURE INTERESTS: What is a perpetuities savings clause
It prevents the interest to violate the rule against perpetuities.

O to A and his heirs so long as no liquor is sold on the premises; but if liquor is sold on the premises during the lifetime of A and B or within 21 years after the death of the survivor of A and B, then to B and his heirs.

That language is drafted expressly to avoid the rule against perpetuities.
Does an option or right or first refusal violate the rule against perpetuities?
Yes, if the option or right could be exercised outside the time period.
What is the charity to charity exception to the rule against perpetuities?
The rule is not violates if the gift is from a charity to another charity.
Do class gifts violate the rule against perpetuities?
2 problems:

1. Age contingency in the open class

A for life then to such of A's children who reach age 30, A has no children when the testator dies.

If the child is not a life a being at the time of the testator's death, then that child can reach 30 outside the life of anyone alive at the time of the gift.

What if it says "to such child who reaches 21 at the time of the testator's death" This does not violate the rule.

Class members: if one loses all of them loose under the rule.

2. Unborn spouses: gift over following a widow's life estate where the gift over cannot vest until the widow dies.

O to A for life, then to A's widow for life, then to As children then living.
FUTURE INTERESTS: What are the 2 interests created in a transferee?
Remainder and Executory Interests
FUTURE INTERESTS: What makes a remainder vested?
A remainder is vested if nothing stays in the way of becoming possessory on the expiration of the estate that comes before it. No conditions to satisfy.
FUTURE INTERESTS: What is a vested remainder subject to open?
AKA Subject remainder subject to partial divestment.

Where a remainder interest is to a class where the class members are not fully known the class remains open.

Open means to allow for future siblings.
FUTURE INTERESTS: What is a contingent remainder?
Something has to happen or be known before the remainder can become possessory. They operate at the natural termination of the preceding estate.

3 situations:
1) Where there is a condition that must be satisfied

2)When the grantee is not in existence

3. When Identity of exact taker is unknown (A to B for life, then to B's widow.)
FUTURE INTERESTS: What is an executory interest?
A future interest in a grantee. It operates to cut short the estate that comes before it.

O to A for life then to B and his heirs; but if B married X, then to C and his heirs. B has a vested remainder subject to an executory interest or vested remainder subject to complete divestment.

Watch for punctuation.
FUTURE INTERESTS: Can the holder of an executory interest sue the life tenant for waste?
No, only holders of remainders can sue the life tenants for waste.

O to A for life, then to B; but if B marries X then to D.

Here, D could not sue either A or B for waste.
FUTURE INTERESTS: What is a shifting executory interest?
If an executory interests operates by taking title from one grantee and giving it to another grantee than it's a shifting exec. interest.

O to A for life then to B and his heirs; but if B is not survived by issue, then to C and his heirs. It shifts to C.
FUTURE INTERESTS: What is a springing exec. interest?
If it operates by taking title by the grantor and giving it to the grantee.

O to A for life, then to B and his heirs; but if B marries X then to C one year after B marries.
FUTURE INTERESTS: What is the rule against perpetuities?
An interest is invalid unless it must vest if at all no later than 21 years after some life in being at the creation of the interest.

Only applies to contingent remainders, exec. interests, and vested remainders subject to open.

Who is the life in being? Ask, could everyone alive at the time of the grant die and then more than 21 years pass before the vesting occurs.
FUTURE INTERESTS: O to B for life so long as liquor is not sold on the premises; but if it is EVER sold, then to C and his heirs, what kind of interest is this?
This is a fee simple determinable subject to an exec. interest but it is invalid as violates the rule against perpetuities. Because liquor can be sold after everyone that was alive during the grant dies, more than 21 years.

O then gets a possibility of reverter.

VALIDITY OF A GRANT IS DETERMINED AT THE TIME OF CREATION, IT DOESN'T MATTER IF IT ACTUALLY DOES TURN OUT AND VESTS WITHIN THE RULE.
FUTURE INTERESTS: How does the rule against perpetuities in Kansas?
YOU WAIT AND SEE IF THE INTEREST ACTUALLY DOES VEST WITHIN 21 YEARS AT THE LIFE IN BEING, CONTRARY TO THE COMMON LAW RULE.

THE COURT CAN ALSO CHANGE THE LANGUAGE OF THE GRANT TO MAKE SURE THAT THE RULE IS NOT VIOLATED. SO IN KS THE RULE HAS BEEN ELIMINATED.
FUTURE INTERESTS: What is a perpetuities savings clause
It prevents the interest to violate the rule against perpetuities.

O to A and his heirs so long as no liquor is sold on the premises; but if liquor is sold on the premises during the lifetime of A and B or within 21 years after the death of the survivor of A and B, then to B and his heirs.

That language is drafted expressly to avoid the rule against perpetuities.
Does an option or right or first refusal violate the rule against perpetuities?
Yes, if the option or right could be exercised outside the time period.
What is the charity to charity exception to the rule against perpetuities?
The rule is not violates if the gift is from a charity to another charity.
Do class gifts violate the rule against perpetuities?
2 problems:

1. Age contingency in the open class

A for life then to such of A's children who reach age 30, A has no children when the testator dies.

If the child is not a life a being at the time of the testator's death, then that child can reach 30 outside the life of anyone alive at the time of the gift.

What if it says "to such child who reaches 21 at the time of the testator's death" This does not violate the rule.

Class members: if one loses all of them loose under the rule.

2. Unborn spouses: gift over following a widow's life estate where the gift over cannot vest until the widow dies.

O to A for life, then to A's widow for life, then to As children then living.
CONCURRENT ESTATES: What is a joint tenancy?
Joint tenants have an undivided interest in the property with right of survivorship.

A joint tenant has a right to partition.
CONCURRENT ESTATES: How do you create a joint tenancy?
Clear words: To A and B as joint tenants with right of survivorship. (not joint owners)
CONCURRENT ESTATES: How can you destroy a joint tenancy?
1. Partition

2. Severance (occurs whenever anyone of the four unities is destroyed)
CONCURRENT ESTATES: What are the four unities of title in a joint tenancy?
REMEMBER TTIP

1. TIME: All at the same time
2. TITLE: All took same type of title
3. INTEREST, All must take same kind and same amount of interest.
4. POSSESSION: All have same right of possession
CONCURRENT ESTATES: Ways to sever a joint tenancy?
a. Conveyance
b. Mortgage in title theory estate (majority follows lien theory)
-Lien theory: no severance of the JT
-Title theory = severance (Kansas)Minority view
d. Contract of sale: severamce occurs upon entering into the K because of equitable conversion.
e. Creditor sale: no severance until the actual judicial sale.
CONCURRENT ESTATES; What is a tenancy in common?
A tenancy where the tenants own an undivided interest with no right to survivorship.

Only unity required is possession.

Each c-tenant is entitled to possess the whole.
CONCURRENT ESTATES: What are the incidents of co-tenancy?
1. Possession
2. Accountability: one co-tenant does not have to account to the other co-tenant for the share of the profits. 4 exceptions:
a. Ouster: keeping the co-tenant off the property or claiming a right of exclusive possession.
b. Agreement to share
c. Lease by co-tenant to 3rd party: means that co-tenant must account to the other co-tenants for their share
d. Depletion of natural resources (can't keep oil but not sell w/o accounting to the other co-tenant?
CONCURRENT ESTATES: What is the right of contribution?
The right of one co-tenant to force the other co-tenant to pay their share on money incurred on the property. Exceptions:
a. Improvements: no contribution for improvements but improvements can be taken into account when the property is sold or when they partition.

b. Repairs: contribution only for necessary repairs only. But money spent for non necessary repairs may also be recouped when the property is sold.
c. Mortgage: Yes, if other co-t signed the K.
d. Taxes: yes, a governmentally imposed obligation.
NON-FREEHOLD ESTATES: WHAT ARE THE FOUR LANDLORD-TENANT ESTATES?
1. TENANCY FOR YEARS
2. PERIODIC TENANCY
3. TENANCY AT WILL
4. TENANCY AT SUFFERANCE
NON-FREEHOLD ESTATES LANDLORD-TENANT ESTATES:
ANY ESTATE MEASURED FOR A FIXED PERIOD OF TIME NO MATTER HOW SHORT IS A TENANCY FOR YEARS.

WATCH FOR THE STATUTE OF FRAUDS: ANY TENANCY FOR YEARS OVER ONE YEAR MUST BE IN WRITING.
NON-FREEHOLD ESTATES LANDLORD-TENANT ESTATES: WHAT IS THE PERIODIC TENANCY?
TENANCY THAT ROLLS ON AND ON UNTIL VALID NOTICE IS GIVEN. IT IS CREATED EITHER BY EXPRESS AGREEMENT, IMPLICATION OR OPERATION OF LAW.
NON-FREEHOLD ESTATES LANDLORD-TENANT ESTATES: What is a periodic tenancy by operation of law?
BY OPERATION OF LAW: ORAL K AND CHECK FOLLOWS FOR RENT FOR A YEAR, THERE IS A PERIODIC TENANCY BY OPERATION OF LAW FOR ONE YEAR.
WHAT IS A PERIODIC TENANCY BY IMPLICATION?
IMPLICATION: WHEN THE AGREEMENT IS SILENT AS TO DURATION BUT SAYS THAT RENT WILL BE PAID MONTHLY, THEN IT WILL BE A PERIODIC TENANCY FROM MONTH TO MONTH
WHAT IS THE HOLDOVER CASE?
When tenant holds over after the expiration of his lease.

What if he sends another check, then it becomes a periodic tenancy from month to month.
HOW DO YOU TERMINATE A PERIODIC TENANCY?
By giving proper notice and to be valid it must:

1. Be timely in advance of the expiration of the tenancy period. e.g. month to month, a month's notice, but a year to year, have to give at least 6 months.

KANSAS: termination of a year to year periodic tenancy requires a written 30 days notice.

2. Effective day of termination can be only on the last day of the period. i.e if it starts on 2/15, then it ends on 3/14.
WHAT IS A TENANCY AT WILL?
No period of durantion. Either party can terminate at any time without notice. It can also terminate by operation of law by:

1. Death
2. Waste by tenant
3. Assignment by the tenant
4. Transfer of title by landlord
5. Lease by landlord to someone else

MBE: Rule: Either party can terminate without notice

Kansas: You gotta give a written 30 day notice.
WHAT IS A TENANCY AT SUFFERANCE?
It is the bare possession that the tenant has when the tenant holds over.

At the landlords sole option he can:
1. He can hold tenant as a wrongdoer trespassor and sue for damages

2. Landlord can elect to impose a new tenancy on the holdover tenancy which will be a periodic tenancy measured:

a. For residential leases, month to month

b. For commercial, if old tenancy was for year or more then from year to year. If for less than a year, then new tenancy measured by rent payments. If month to month then just month to month.

If new tenancy's rent will be higher in rent, the landlord has to tell the tenant BEFORE the expiration of the lease.
LANDLORD-TENANT: What are the tenant's duties?
1. Pay rent

2. Tenant must not commit waste

If T covenants to repair and maintain, then tenant is liable for all damage to the property even ordinary wear and tear unless specifically excluded.
LANDLORD-TENANT: Can Tenant terminate the lease when the property is destroyed?
Yes, under the modern view.
LANDLORD-TENANT: What are the landlord remedies?
1. Sue for damages if pay is not rent

2. Evict the tenant
LANDLORD-TENANT: What if the tenant abandons the leasehold?
T has 2 choices:

1. Can treat the leasehold as abandoned and re-rent the property, T's liability ends then.

2. L can re-rent the premises on the tenants account and hold the T liable for the difference in rent price.
LANDLORD-TENANT: What are the landlord's duties?
1. Give the T possession of premises when lease begins (not so at CL)

2. Implied warranty of habitability for residential property: L must deliver premises in habitable condition. (not so at CL)

3. Implied covenant of quiet enjoyment.

a. Total eviction (rare)

b. Partial eviction
If there is a partial eviction by third party rent gets apportioned.

c. Constructive eviction

KANSAS: Tenant can stay in the lease and recover actual damages or 1 1/2 months rent whichever is greater.
LANDLORD-TENANT: What are the tenant's options if implied warranty of habitability is breached?
1. Tenant can move out

2. Stay and sue
LANDLORD-TENANT:WAYS TO TRANSFER LEASEHOLD?
1. ASSIGNMENT: Transfer everything of leasehold

2. SUBLEASE: Transfer only portion of lease period.
LANDLORD-TENANT: Who is liable under a sublease and assignment?
A lease is both a conveyance and K and give separate and independent grounds for liability.

Privity of estate: if so, liability. Exists only the PRESENT LL and PRESENT Tenant

Privity of K: if so, liability on the contractual part of the lease. Exists where there is an agreement or where asignee expressly assumes obligations under lease.

Either one will give full liability.
LANDLORD-TENANT: When does a covenant run with the land?
It runs with the land if it touches and concerns the land.

It touches and concerns the land if it makes the land more valuable or more useful.

ie. Fix the fence and pick up the mail? Fix the fence yet, but pick up the mail, no, it is personal to the grantee.
LANDLORD-TENANT: Change of landlords, when can the tenant sue the new landlord?
Since there is privity of estate, L can sue the new landlord on any covenant.

He can also sue the old tenant based on privity of K.
LANDLORD-TENANT: KANSAS SPECIAL ASSIGNMENT RULE?
If the lease is for two years or less, tenant is prohibited from assigning without landlord's written consent.
LANDLORD-TENANT: What is the liability of a sub-lessee?
Not liable to the tenant as there is no privity of K or privity of estate. Because the sublessor keeps the estate.
LANDLORD-TENANT: Can a non-assignment or non-sublease clause valid?
Yes, but courts construe it narrowly.

These clauses make a sublease or assignment VOIDABLE. So if landlord doesn't do anything they are valid.

If landlord gives permission once, he waives the assignment clause forever unless LL states otherwise. Also acceptance of rent by LL gives permission for transfer. Courts don't like these clauses.
LANDLORD-TENANT: What if property is condemned by eminent domain?
Partial Taking: Tenant is not excused from paying rent if there is a partial taking. But a tenant will get a lump sum award equal to the amount of rent he will have to pay.

Full taking: extinguishes the lease and T is excused from paying rent. A T can share in the condemnation award only the amount of difference of new rent and old rent.
LANDLORD-TENANT: Is the LL held to a tort liability?
Not at CL, except for 5 situations:

1. Latent defects: duty to disclose which LL knows or has reason to know of.

2. Short term lease of a furnished dwelling, LL is liable for defects

3. Common areas under landlord's control.

4. Negligent repairs even if used all due care. kinda like strict liability.

5. Public use exception.
a. LL must know or should know of latent defects
b. LL must know that T will not fix
c. LL must know that public will use premises.

5.
LANDLORD-TENANT: What is the tenant's tort liability?
Tenant is liable to 3rd person invitee regardless of whether the LL is liable or not.
LANDLORD-TENANT: WHAT IS THE UNIFORM RESIDENTIAL LANDLORD & TENANT ACT?
4 PROHIBITED PROVISIONS:

1. YOU CANNOT WAIVE ANY STATUTORY RIGHTS OR REMEDIES

2. CANNOT HAVE ANY CONFESSIONS OF JUDGMENT

3. CANNOT HAVE ANY AGREEMENTS TO PAY ATTY'S FEES

4. CANNOT HAVE ANY EXCULPATORY OR INDEMNITY CLAUSES.

NOTE: COURTS CAN REFUSE TO ENFORCE ANY LEASE PROVISION THAT IT FINDS UNCONSCIONABLE.
FIXTURES: What is the rule as to fixtures?
Absent an agreement, whether the tenant or seller will be able to remove the fixtures will depend on the following factors:

a. Degree of attachment of item

b. General custom with this item

c. Degree of harm of the premises

d. Trade fixtures
FIXTURES: Are washers and dryers fixtures?
No, they are never fixtures.
FIXTURES: When can a tenant or seller remove a chattel not considered to be a fixture?
Tenant: Before the lease ends.

Seller: Before closing on the K.
EASEMENTS: What is an easement?
An easement is a non-possessory right of use, 2 types appuretenant and in gross.
EASEMENTS: What is an easement appuretenant?
An easement appuretenant (servient estate) directly benefits the use and enjoyment of a specific piece of land, the dominant estate.
EASEMENT: What is an easement in gross?
There is no dominant estate, just one piece of property. Typically a utility lines easement.
EASEMENT: What is an express easement?
Arises by express grant or by reservation when land is conveyed.

Must comply with the statute of frauds if easement is for over a year.
EASEMENT: What is an easement by implication?
An easement that was used before the property was conveyed by a common owner.

A common owner was a person who owned all of the land before selling part of it.

Previous use must have been:

1. Continuous
2. Apparent (open and obvious)
3. Reasonably necessary
EASEMENT: What is an easement by necessity?
If there is no other way off the property there is an absolute right of access.
EASEMENT: If there is an easement by necessity where is it located?
The owner of the servient estate chooses the location but it has to be reasonable.
EASEMENT: What is an easement by prescription?
Title passes by adverse possession.

4 requirements:

1) Use must be adverse or hostile (w/o owner's permission)

2) Open and continuous and uninterrupted (seasonal ok)

3) For the statutory period (15 YRS IN KANSAS)

4) Open and notorious
EASEMENT: How do you transfer an easement appuretenant?
A subsequent owner of the dominant estate sue to enforce the easement if it is appuretenant. It cannot be transferred separately. It runs with the land.

Easements are binding on buyers even if the easement is not contained in the deed as long as they have notice of the easement.
EASEMENT: How do you transfer an easement in gross?
If commercial: Can be transferred

If personal: Cannot be transferred (an easement to B to go fishing at As property)
EASEMENT: What kind of use can you make of the easement?
If the easement is silent on the use, the law presumes that:

1. The easement is perpetual

2. The use presumed is that of reasonable development of the estate (whatever was contemplating by the parties when the easement was created)

3. Repair of the easement: the holder of the easement must keep it in repair and can always go to the servient estate to repair it.

The holder must also make reasonable restoration of the servient estate after making repairs.
EASEMENT: How can the easement be terminated?
1. Unity of ownership or merger

2. Valid release complying with SOF and all deed formalities

3. Abandonment plus acts

4. Termination by estoppel
a. Representation of relinquishment by holder
b. Change of position in reliance

5. By prescription: owner of servient estate must stop the use and keep it stopped for the statutory period.

5. Not a necessity anymore, in an easement by necessity
EASEMENTS DISTINGUISHED FROM LICENSE
A license is merely a limited privilege to use land in the possession of the licensor, It is not a property interest, it is a contract right.

Tickets are always licenses.
EASEMENTS: WHAT IS AN IRREVOCABLE LICENSE?
Any time an oral easement is attempted but it fails because of the SOF, you have an easement.

If money is then spent on the property in furtherance of the oral license then the license has become irrevocable. It can be enforced under principles of estoppel.

In some states it is called an easement by estoppel
EASEMENT: What is a profit?
Profit gives the right to the natural resource on the land and gives an implied easement to go get it.
RESTRICTIVE COVENANTS: Is it a covenant or equitable servitude?
Can enforce at law or in equity

If enforcing it at law we call it covenant running with the land at law

If enforcing it in equity it is called an equitable servitude.
RESTRICTIVE COVENANTS: How do you enforce a covenant at law?
By showing
4 requirements:

1. Intent

2. Notice

3. Covenant must touch and concern the land.

a. Covenants not to compete touch and concern the land

4. Privity (conveyance from one party to the other)
a. Horizontal privity: refers to the original parties, no one else matters.

b. Vertical privity: refers to those who subsequently obtain the property subject to the covenant AND original party to the restriction from whom they received the property.
RESTRICTIVE COVENANT: What do you need for the burden to run against a successor in interest?
For the burden to run against a successor in interest there must be both horizontal and vertical privity.
RESTRICTIVE COVENANT:How do you know if a benefit runs with the land?
A benefit runs in favor of a successor in interest, you need only a vertical privity. No horizontal privity is needed.
BENEFIT/BURDEN IN A NUTSHELL
1. If a successor in interest is a D then for P to get damages the burden must run and you need both horizontal and vertical privity.

If the D is not a successor in interest then for the benefit to run to a successor in interest P and to get damages you need only vertical privity.
RESTRICTIVE COVENANTS: How do you enforce a covenant in equity?
You can enforce a covenant in equity even if you couldn't enforce at law because of no privity.

Requirements:
1. Intent that restriction be enforceable by successors in interest

2. Notice

3. Restriction must touch and concern the land
RESTRICTIVE COVENANTS: How can a covenant be mutually enforced?
Through mutual rights of enforcement or reciprocal negative servitudes.
Requirements:
1. Intent by developer found in common building scheme
2. Notice (1.actual, 2.record [chain of title, subdivision plan recording] 3. inquiry
RESTRICTIVE COVENANTS: Are there any defenses against an equitable servitude?
Yes, there are four:

1. Unclean hands
2. Acquiescence
3. Laches
4. Estoppel
RESTRICTIVE COVENANTS: CAN A COVENANT BE TERMINATED BY CHANGED OF CIRCUMSTANCES?
You cannot void a restriction because of changed conditions in the area unless all lots in the subdivision are affected.
It's an all or nothing thing. In order to keep a domino effect from slowly eating up the subdivision.
What is adverse possession?
Title is obtained by the adverse possessor when the statutory period has passed. Elements:

Remember: HELUVA

1. Hostile
2. Exclusive possession
3. Lasting for statutory period (KS 15 yrs, CL 20)
4. Uninterrupted
5. Visible, open and notorious
6. Actual possession of the land

Note: owner doesn't have to know a trespassor is in his land; no need for a claim of right by the possessor.
What is the doctrine of constructive adverse possession?
If someone goes to a property under color of title to a large tract but actually only possesses title to a lesser portion adverse possession can give title to the rest of the property. Two requirements

1. Amount possessed must bear a reasonable relation to the whole

2. Property must be unitary
Does the happening of a condition in a fee simple determinable starts the clock as adverse possession?
Yes
Adverse possession on a fee simple subject to a condition subsequent?
The clock won't start to run until the grantor exercises his right of entry.
Tacking on Adverse possession ?
To satisfy the time period the adverse possessor can tack earlier periods of adverse possession if there was direct passage of possession from one adv. possessor to another.
No gaps.
What is a disability for purposes of adverse possession?
Being a minor, being insane or being in jail. If an owner is under a disability the adv. possessor clock will not begin to run until owner is free of that disability.

But disability must be in existence on the day the adverse possessor begins.
What is a conveyance?
Transfer of real property through and contract and a subsequent deed.
CONVEYANCING
Requirements for a contract for the sale of land
Contract needs to comply with the SOF, it must contain:
1. Description of the property
2. Names of parties
3. Price
CONVEYANCING
What is the doctrine of part performance?
Exception to the statute of frauds. Where one party has partially performed the K will be valid even if no writing. 2 requirements:

a. Oral K must be certain and clear

b. Acts of part performance must clearly prove up a K
Note: look for possession + payment and possession + improvements)
CONVEYANCING
What is the doctrine of equitable conversion?
Once the K is signed it is buyer's land and buyer's risk.

But if seller causes the destruction, the seller will be responsible.
CONVEYANCING
What happens if either buyer or seller dies before closing?
Nothing changes. If seller dies the buyer goes to closing with seller's estate and the estate gets the money and seller's interest is personal property.
CONVEYANCING
What is marketable title?
1. Good title free of defects, buyer doesn't want to buy a lawsuit

2. Free of encumbrances (option to purchase, violation of zoning ordinance, violation of housing or building codes it's not, a mortgage is not an encumbrance if it will be satisfied out of the proceeds of the sale)

3. Seller must give buyer valid legal title on the day of closing

A half inch encroachment does not make title not marketable.
CONVEYANCING
What are the remedies if title is unmarketable?
1. Buyer must notify the seller and give him reasonable time to cure it.

2. If seller doesn't cure, buyer can rescind.

3. Buyer can get damages for breach of K.

4. Specific performance and price is lowered to cover the defect.
CONVEYANCING
Is time of performance important?
General rule: time is not of the essence, unless the K says so or the parties make it clear that that is their intention.

If time is not of the essence, performance must be tendered within a reasonable time (2 mos OK)
CONVEYANCING
What are the remedies for breach of K?
2 remedies:

1. Damages: Measure is difference between K price and value of land on the day of breach

a. Deposit is OK as liquidated damages as long as it's no more than 10%

2. Specific performance available to either party
CONVEYANCING
What if there are defects on the property?
There are no implied warranties of suitability or fitness for a K for the sale of real property. Tough luck, Caveat emptor!!!

2 exceptions:

1. Seller must disclose hidden defects, if he tries to hide defects he will be liable

2. There is an implied warranty of fitness or merchantability by a builder-seller of a new home.

2.
CONVEYANCING
What happens after the deed is accepted at closing?
The contract merges into the deed and the deed controls and the K disappears.
CONVEYANCING
What are the 2 requirments for the deed to pass valid title?
1. Execution
- Subject to the SOF (seller must sign the deed)
- Deed must describe the land with sufficient accuracy to pass title, if not void for vagueness.

2. Delivery
CONVEYANCING
What is the delivery requirement?
Once delivery occurs title passes. Recordation of the deed is presumption of delivery.

Parol evidence can be admitted to show the grantor's intent
CONVEYANCING
What is a conditional delivery?
1. When the deed states that the deed will not become effective until the happening or not happening of an event. This is a valid delivery.

A life estate is given to the person and he gets a vested remainder.

2. Oral conditions: just ignore the oral condition, not valid.
CONVEYANCING
What is grantor wants to make delivery conditional on the grantee paying the purchase price?
Yes, it is done through an escrow agent. Oral instructions can be given to that third party.

So long as the grantee meets the conditions she gets the property
CONVEYANCING
What is a quit claim deed?
When the grantor makes no promises on the deed. I give you whatever interest I have.
CONVEYANCING
What is a covenant for title?
Promises on the deed
CONVEYANCING
Describe the covenants of title
6 COVENANTS

I. PRESENT COVENANT: CAN SUE IMMEDIATELY, THEY ARE PERSONAL TO THE GRANTEE AND DON'T RUN WITH THE LAND
a. Seisin
b. Right to convey: Represent promise that seller has title and posession and can validate both.

c. Covenant against encumbrances

II. FUTURE COVENANTS: breached later when grantee is disturbed in posession, it runs with the land and can be enforced by all subsequent purchasers.
1. Covenant for quiet enjoyment

2. Covenant of warranty: promise by the seller that seller will protect the buyer against anyone who later shows up claiming title.

3, Covenant of further assurances: I promise to make whatever necessary to make sure you got valid title.

KANSAS: Deed does not automatically include the covenant of further assurances.
CONVEYANCING
What are the damages for breach of warranty?
If there is a breach of warranty damages are limited to the purchase price received by the warrantor plus incidental damages.
CONVEYANCING
What is estoppel by deed?
AKA Doctrine of after acquired title

A a grantor deeds a property that he doesn't own and he later gets title, then the original grantee will get title.

But if the grantor transfers to a BFP thn the original grantee looses.
CONVEYANCING
What about a deed to a dead person, valid?
A deed to a dead person is invalid. But it doesn't mean the K for sale is gone and equitable conversion happened when the K was signed. So the estate can get specific performance.
CONVEYANCING
Who does the recording act protect?
1. Purchasers

2. Mortgagees

BUT NOT Judgment creditors
RECORDING
Does not recording a deed make it invalid?
NO, recording is only intended to give the world notice.
RECORDING
What is the grantor index?
Deeds are listed alphabetically by the grantor and grantee.
RECORDING
What are the three types of recording acts?
1. NOTICE ACTS: all you have to do is a BFP, recording is irrelevant. KANSAS!!!

2. RACE-NOTICE:

a. Grantee have to be BFP and the first to record

3. PURE RACE: First who records wins.

Hint:
If the quoted act says w/o notice or in good faith, if it says, then its either notice or race notice.

If it says first recorded or recorded first, then rec. act is race notice.
RECORDING
Who is a BFP?
Bonafied purchaser for (1)value and (2)without notice.
RECORDING
What is the shelter rule exception?
Anyone who takes property under a BFP gets the rights of that BFP no matter what.
RECORDING
What does "for value" mean?
Value: Gotta pay for the property, price deminimis OK, but if it's just a dollar, not ok. Heirs or devisees are not BFP for value.
RECORDING
What is "without notice"?
Actual notice. If the purchaser knew about the prior conveyance, he looses. Except with the shelter rule.
RECORDING
What is record notice?
It must have been recorded in the chain of title. A deed can be outside the chain of title if it's recorded too late and if it's recorded to early (aka wild deeds) and they don't give notice.

Kansas: You have to go back 40 years to construct a chain of title.
What is inquiry notice?
When the reading of the deed of record discloses an unrecorded transaction, the BFP has to make inquiry and check it out.

Subsequent purchasers are on notice of anything mentioned.

KANSAS: If you take a quit claim deed in Kansas you're put on inquiry notice.
RECORDING
What is a mortgage?
A mortgage is given by a debtor called the mortgagor payable to a mortgagee.
MORTGAGES AND SECURITY INTERESTS
What is an equitable mortgage?
It is an absolute deed with a promise of reconveyance.
MORTGAGES AND SECURITY INTERESTS
What is a sale-lease back?
It is a sale-lease back with option to repurchase. This situation is treated as mortgage. It has to be foreclosed and they get all the legal safeguards of the mortgage.
MORTGAGES AND SECURITY INTERESTS
What is a deed of trust?
Given by the debtor to a third party trustee who holds the deed of trust until the loan is paid off. If not paid, the trustee can:

a. Ask the court for a court order sale

b. Hold the public auction herself under a power of sale.
MORTGAGES AND SECURITY INTERESTS
WHAT IS AN INSTALLMENT LAND CONTRACT?
The buyer signs K promising to make payments and seller keeps title until loan is paid off.
MORTGAGES AND SECURITY INTERESTS
What is the equity of redemption?
At any time prior to the foreclosure sale the debtor can redeem the property. Debtor can bring the foreclosure to a halt.

If mortgage has an acceleration clause, debtor will have to pay it.
MORTGAGES AND SECURITY INTERESTS
Can you waive your right of redemption?
No, it cannot be waived in the mortgage or deed or trust. An attempt to waive it it's known as CLOGGING the equity of redemption.
MORTGAGES AND SECURITY INTERESTS
What is a statutory right of redemption?
It gets the debtor get the property AFTER the foreclosure.
MORTGAGES AND SECURITY INTERESTS
DOES KANSAS HAVE A STATUTORY RIGHT OF REDEMPTION?
Yes, where the mortgagor can get the property back up to one year after the foreclosure sale.

The mortgagor has the EXCLUSIVE right to redeem the property for 3 MONTHS AFTER THE FORECLOSURE after which time any of the mortgagor creditors with a lien of the property can redeem themselves.
MORTGAGES AND SECURITY INTERESTS
How does the foreclosure need to be?
By a public auction, no midnight sales.
MORTGAGES AND SECURITY INTERESTS
What if there are multiple mortages?
First in time first in right. BUT if a mortgage was not recorded or recorded late, apply the recording act to see who takes priority.
MORTGAGES AND SECURITY INTERESTS
How do you determine mortgage priority?
1. Priorities can be changed by contract.

2. Purchase money mortgages are given priority. AND a pmm given by a seller of a property is given even greater priority than a pmm given by a third party lender (bank).

3. If owner does anything to increase a senior mortage that mortage its priority over junior mortagees.

4. After a foreclosure a junior mortgages or interests (leases or easements) is wiped out. But holders of junior interests can come in and pay off the mortage that is foreclosed in order to keep their junior interests. Junior holders are necessary parties to a foreclosures. SENIOR mortgages are not wiped out, they continue to encumber the property.

5. Use the proceeds of the sale in this order:
a. Pay the cost of foreclosure
b. Pay off the morgage foreclosed inc. interest
c. Pay off junior interest in order
d. If anything left, it goes to the morgagor.

6. If morgage is foreclosed and there is not enough money to pay off the morgage, the mortgagee can sue the morgagor to recover the balance.
MORTGAGES AND SECURITY INTERESTS
What are the order of priorities in an installment land contract?
Just look for a forfeiture clause saying if debtor misses a payment the seller can cancel K keep all the money paid to debt and retake the property.

LET THE FORFEITURE HAPPEN ON THE MBE
MORTGAGES AND SECURITY INTERESTS
If the property is sold by the mortgagor, will the grantee be liable for the morgage?
NO, unless the grantee assumes the mortgage. But the grantee runs the risk of having the property foreclosed by the mortgagee.

Any modification made by the grantee and the mortgagee discharges the original mortgagor of liability. COOL !
MORTGAGES AND SECURITY INTERESTS
Holder in due course rule
A holder in due course is not bound by payments to an old mortgagee not even if the mortgagor knew nothing of the transfer.
MORTGAGES AND SECURITY INTERESTS
Due on sale clauses
If mortgagor transfers without the mortgagees consent the full amount is due immediately.
MORTGAGES AND SECURITY INTERESTS
Rule about fixtures filings
If a fixture filing is not made as required by UCC within 20 days of attachment then the security interest in the chattel is subordinate to the security interest in the real property
MORTGAGES AND SECURITY INTERESTS
What is the right of land support?
1. Lateral Support: Landowner has the right to have his land supported by the adjoining landowners and strict liability will result if not supported.

What if there is a house on it already, ONLY liable if the land would collapse even without the artificial structures.

2. Subjacent Support: Surface owners have the right to have the land supported and strict liability lies if it's not.

Buildings built after the mineral rights were legally separated from the surface rights, get no protection.
LATERAL AND SUB-ADJACENT LAND SUPPORT
What is the result of negligence in excavation?
If person digging is negligent during excavation, party affected can sue in tort
LATERAL AND SUB-ADJACENT LAND SUPPORT
What are riperian rights?
Majority system SO ASSUME THIS IS THE SYSTEM UNLESS TOLD OTHERWISE.

Riperian means to those whose property borders on a lake or stream. 2 rules:

a. A riperian owner can use all of the water needed for domestic purposes.

b. If the use is NON-DOMESTIC the riperian owner is limited to a REASONABLE USE.
WATER RIGHTS
What is the doctrine of prior appropriation?
MINORITY. Used by a few western states located where water is very scarce and thus very valuable.

If prior appropriation is the rule, first in time takes. Priority in time determines all rights.

KANSAS: IS A PRIOR APPROPRIATION STATE !!!
WATER RIGHTS
What is percolated water?
Water you take from a well. Rule: Landowner is entitled to reasonable use of the water.
WATER RIGHTS
What is surface waters?
AKA Run off or flood water.

Two theories:

1. Natural flow approach: requires landowner not to make any changes in the floodwater as it raises in the surface of the land. Courts will allow REASONABLE MEANS of dealing with surface waters.

2. Common enemy approach: you can do whatever you want with the floor water. Anything goes.
WATER RIGHTS