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336 Cards in this Set

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What is a Fee Simple Absolute
largest estate recognized by law; it can be sold, divided, devised, or inherited and has an indefinite or potentially infinite duration
What are Defeasible Fees?
Fee simple estates (i.e., of uncertain or potentially infinite duration) that can be terminated upon the happening of a stated event.
What is a Fee Simple Determinable (and Possibly of Reverter)
Terminates upon the happening of a stated event and automatically reverts to the grantor (is a reversionary future interest)
Are transferable: inter vivos, descendible, and devisable
What is the Correlative Future Interest in the Grantor for a Fee Simple Determinable?
Whenever a grantor conveys a fee simple determinable he automatically retains a possibility of reverter, Possibility of Reverter - is a reversionary future interest. A possibility of reverter is transferable, descendible, and devisable.
What is a Fee Simple Subject to Condition Subsequent?
Is an estate where the grantor expressly reserves the right to terminate the estate upon the happening of a stated event; i.e., the estate does not automatically terminate - the grantor must take some action.
the right of reentry MUST be expressly reserved
What is the Correlative Future Interest in the Grantor for a Fee Simple Subject to Condition Subsequent?
Power of Termination/Right of Entry; The right to terminate, reserved by the grantor, is called a right of entry. It must be expressly reserved; in contrast with a possibility of reverter, it does not arise automatically.
(Until happening of named even and reentry by grantor)
What si a Fee Simple Subject to an Executory Interest?
If a fee simple estate terminates upon the happening of a stated event (because it is determinable or subject to a condition subsequent) and then passes to a third party rather than reverting to the grantor or giving the grantor a right to terminate, the third party has an executory interest;
What is a Fee Tail?
An estate limited to lineal heirs; created by the words "to B and the heirs of his body."
What is a Life Estate?
A freehold estate where the duration is measured by the life or lives of one or more persons.
~ It may be created by operation of law (e.g. dower), or by conveyance.
What is a Life Estate Pur Autre Vie?
freehold estate the duration of which is measured by the life of someone other than the grantee
What is the Doctrine of Waste?
Life tenant is entitled to the ordinary uses and profits of the land, but cannot do anything that injures the interests of a remainderman or reversioner - future interest holders may sue for damages or to enjoin such acts.
What is Affirmative (Voluntary) Waste?
Voluntary waste (sometimes called affirmative waste) is any structural change made to the estate that intentionally or negligently causes harm to the estate or depletes its resources, unless this depletion is a continuation of a pre-existing use.
Exploitation of natural resources by a Life Tenant is generally limited to what circumstances?
(3 circumstances)
(i) Where it is necessary for repair or maintenance of the land;
(ii) where the land is suitable only for such use; or
(iii) where it is expressly or impliedly permitted by the grantor
What is the Open Mines Doctrine?
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.
What is Permissive Waste?
Permissive waste is failure to maintain the estate, both physically and financially. Rather than requiring some bad act on the part of the tenant, this requires a failure to make ordinary repairs, pay taxes, or pay interest on the mortgage. If the property is owned under a lease which places the burden of making physical repairs on the landlord, the tenant still has a duty to report the need for such repairs to the landlord.
What is a Life Tenant obligated to do?
(4 things - physical and financial):
(i) preserve the land and structures in a reasonable state of repair,
(ii) pay interest on mortgages (not principal);
(iii) pay ordinary taxes on the land;
(iv) pay special assessments for public improvements of short duration (improvements of long duration are apportioned between the life tenant and future interest holder).
What is Ameliorative Waste?
A change that benefits the property economically;
~ This waste was actionable at common law
When may a Life Tenant (not leasehold tenant) alter or even demolish existing buildings?
(i) the market value of the future interests are not diminished and either:
(ii) the remaindermen do not object; or
(iii) there is a substantial change in the neighborhood conditions that has deprived the property of usefulness or productivity in its current condition
What is the rule on Ameliorative waste for Leasehold Tenants?
leasehold tenants remain liable for ameliorative waste even if neighborhood conditions have changed and the market value of the premises was increased.
What happens in the event of a Renunciation of a Life Estate?
the future interest following the life estate is generally accelerated so that it becomes possessory immediately.
What is a Future Interest?
A future interest gives its holder the right or possibility of future possession of an estate; it is a present, legally protected right in property
What is a Reversion?
It is the Estate left in the Grantor who conveys less than she owns; it arises by operation of law and does not have to be expressly reserved.
A reversion is alienable, devisable, and inheritable.
~ Its holder can sue for waste and for tortious damage to the reversionary interest.
What is Remainder?
A future interest in a third person that can become possessory upon the natural expiration of the preceding estate;
~ A remainder is expressly created; it cannot divest a prior estate (rather it follows naturally), and cannot follow a time gap.
What is an Indefeasibly Vested Remainder?
An indefeasibly vested remainder is Created in an existing and ascertained person and is not subject to a condition precedent.
~ The Remaindeman has a right to immediate possession upon normal termination of the preceding estate.
~ An indefeasibly vested remainder is not subject to divestment or dimunition.
What is a Vested Remainder Subject to Open?
Created in a class of persons (e.g., children) that is certain to become possessory but is subject to diminution - by the birth of additional persons who will share in the remainder as a class.
What is a Vested Remainder Subject to Total Divestment?
It is a Vested Remainder Subject to a condition subsequent.
What are the two types of Contingent Remainder?
Contingent Remainders are those created in unborn or unascertained persons or subject to a condition precedent?
What is a Condition Precedent in a remainder situation?
A condition is precedent if it must be satisfied before the remainderman has a right to possession.
Why is a remainder contingent for Unborn or Unascertained Persons?
A remainder is contingent because until the remainder is ascertained, no one is ready to take possession if the preceding estate ends.
What is the Rule of Destructibility of Contingent Remainders?
At common law, a contingent remainder was destroyed if it failed to vest before the termination of the preceding freehold estate.
What is the Rule in Shelley's Case?
if the same instrument created a life estate and a remainder only in A's Heirs, the remainder was not recognized and A took the life estate and the remainder (and the remainder in the heirs was cut off).
What is the Doctrine of Worthier Title?
Almost the same as rule in Shelley's case, but: Grantor conveys Blackacre to B for life with remainder to Grantor's heirs; in this case the remainder to Grantor's heirs is cut off and you then have a reversion in fee back to the Grantor (or his heirs).
What is the general definition of an Executory Interest?
They are Future interests in third parties that either divest a transferee's preceding freehold estate ("shifting interests") or follow a gap in possession or cut short a grantee's preceding freehold estate ("springing interestes")
Transferability of Remainders and Executory Interests
Vested Remainders are: fully transferable, descendible, and devisable;
~ At CL, Contingent Remainders and Executory Interests were not transferable inter vivos, but most courts today hold that they are freely transferable. (check)
What are Class Gifts?
A "class" is a group of persons having a common characteristic (e.g., children, nephews).
~ The share of each member is determined by the number of persons in the class.
~ Vested Subject to Open: at least one member exists
~ Contingent: all group members are unascertained.
What is the Rule of Convenience?
in the absence of express contrary intent, a class closes (i.e., no one born after that time may share in the gift) when some member of the class can call for distribution of her share of the class gift.
What is the definition of a Trust?
A fiduciary relationship with respect to certain property (res) wherein the trustee holds legal title to the property subject to enforceable equitable rights in a beneficiary
~ Settlor must own the property at the time of the trust creation and must have had the intent to create the trust
Charitable Trusts - How do the Rules differ from normal trusts? (3 ways)
(i) must have indefinite beneficiaries
(ii) may be perpetual (RAP does not apply)
(iii) and the cy pres doctrine, which allows a court to select an alternative charity when the purpose of the the settlor becomes impractical or impossible, applies.
What is the Rule Against Perpetuities?
No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being ("measuring life") at the creation of the interest. IF there is any possibility the interest might vest more than 21 years after a life in being, the interest is void.
What interests does the RAP apply to?
(6 things)
1- Contingent Remainders
2- Executory Interests
3- Vested Remainders Subject to Open (Class gifts) - if a remainder interest is given to a class of persons, it is deemed vested only when the class is closed and all conditions precedent have been satisfied for all members (entire class gift is void if the interest of one member might possibly violate the rule).
4- Options to purchase land (in the future) contained in a deed instrument (not in a lease)
5- rights of first refusal (as in to purchase property)
6- Powers of appointment (ex. -
When does an interest vest?
(2 instances)
(i) When it becomes possessory, or
(ii) it is an indefeasibly vested remainder or a vested remainder subject to total divestment.
What is the Effect of Violating the RAP?
The Offensive Interest Stricken: Violation of the Rule destroys only the offending interest. The interests are then treated as if the void interest were never there. Exception is the rare case of "infectious invalidity" where the testator would probably have preferred the entire gift to fail.
What is the Bad-as-to-One, Bad-as-to-All Rule?
If the interest of any class member may vest too remotely, the whole class gift fails.
~ For the class gift to vest, the class must be closed and all conditions precedent satisfied for every member.
What is the Rule Against Restraints on Alienation?
Generally, any restriction on the transferability of a legal (as opposed to equitable) interest is void.
What is a Disabiling restraint?
It is a situation where attempted transfers of an interest in property are ineffective.
What is a Forfeiture restraints?
It is a situation where an attempted transfer forfeits the interest.
What are promissory restraints?
It is a situation where an attempted transfer breaches a covenant.
What is the effect of a Disabling Restraint on Legal Interests?
a disabling restraint on any type of legal interest (e.g., fee simple, life estate) is void.
What is the effect of a Restraints (of Whatever Type) on a Fee Simple?
All restraints (of whatever type) on fee simple interests are void, even if transferability is restricted for only a short time.
What is a Joint Tenancy?
It is a form of co-ownership where each joint tentant owns an undivided interest in the same estate.
~ A joint tenancy's distinguishing feature is the right of survivorship.
How is a Joint Tenancy created?
The common law requires four unities:
1- Time,
2- Title (same instrument),
3- Interest (same type and duration),
4- with the same right to Possession (identical rights of enjoyment).
What is a Conveyance to two or more persons presumed to be?
modern law requires a clear expression of a right of survivorship; otherwise a conveyance to two or more persons is presumed to be a tenancy in common.
How is a Joint Tenancy destoyed?
It is terminated by a conveyance inter vivos (severs joint tenancy, resulting in a Tenancy in Common);
~ a suit for partition destroys it;
~ a Lease does not effect a severance in Majority; K to convey severs in majority
Do Judgment Liens cause a severance of a joint tenancy?
~ If such a lien is acquired against a joint tenant, it does not sever the joint tenancy until it is actually sold at a foreclosure sale.
~ Usually when a plaintiff obtains a money judgment against a defendant, that judgment becomes a lien on the defendant's property in the county where the judgment is docketed.
~ The lien runs with the land, burdening it until the judgment is paid or the lien expires (usually 10 years).
Do Mortgages cause a severance?
In most states, a mortgage is a lien on title and does not sever a joint tenancy.
~ Severance occurs only if the mortgage is foreclosed and the property is sold.
~ In a minority of states that follow a title theory, (mortgage is regarded as a transfer of title), then this would sever the joint tenancy.
Do Leases sever a Joint Tenancy?
States are split as to whether one joint tenant's lease of her interest causes a severance.
~ Majority: a lease does not effectuate a severance of a joint tenancy.
Does a Contract to Convey cause a severance?
Severance results if one joint tenant contracts to convey her interest (despite the fact that no conveyance actually occurs - it is enforceable in equity), but the courts are split on whether an executory contract by all joint tenants works a severance.
~ A joint tenancy can be terminated by partition (voluntary or involuntary)
Does Testamentary Disposition cause a severance?
A will is ineffective to work a severance because at death the testator's interest vanishes.
What is a Tenancy by the Entirety?
A tenancy by the entirety is a marital estate akin to a joint tenancy.
What severs a Tenancy by the Entirety?
Only death, divorce, mutual agreement, or execution by a joint creditor of both the husband and wife can sever a tenancy by the entirety.
~ An individual spouse cannot convey or encumber tenancy by the entirety property.
~ A deed or mortgage executed by only one spouse is ineffective.
What is a Tenancy in Common?
A tenancy in common is a concurrent estate with no right of survivorship.
~ Tenants can hold different interests in the property, but each is entitled to possession of the whole.
~ Interests are: alienable (changed over to another's ownership), devisable (by will), and inheritable.
~ Only unity is the unity of Possession; no Right of Survivorship (would just go to heirs, not to other interestholder)
What is the rule relating to Possession among co-tenants?
Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part.
~ A co-tenant out of possession cannot bring a possessory action unless she is "ousted." (e.g., another co-tenant claims right to exclusive possession).
What is the Rule re Rents and Profits by co-tenants.
In most states, a co-tenant in possession has the right to retain profits from her own use of the property; i.e., she need not share profits with other co-tenants absent ouster or an agreement to the contrary.
What is the Rule re contribution from co-tenants?
A co-tenant who pays more than her pro rata share of necessary repairs is entitled to contribution from the other co-tenants, provided she has notified the other co-tenants of the need for repairs.
~ If there is a partition, then the court may make an equitable division of the proceeds and the court will consider the amount paid for repairs.
What is the Duty of Fair Dealing among co-tenants?
A confidential relationship exists among co-tenants; e.g., one co-tenant's acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants.
What is a Leasehold?
A leasehold is an estate in land, under which the tenant has a present possessory interest in the leased premises and the landlord has a future interest (reversion); combines aspects of a conveyance and a contract, and it must satisfy the Statute of Frauds.
What are the Statute of Frauds requirements for leaseholds?
(i) the lease must describe the lessor and lessee,
(ii) the lease must describe the leased land,
(iii) it must state the term of the lease,
(iv) it must state the amount of the rent.
What is a Tenancy for Years?
A tenancy for years continues for a fixed period of time (e.g., A rents to B for two years); and ends automatically; usually created by written leases.
What is a Periodic Tenancy?
A periodic tenancy continues for successive periods (e.g., month-to-month) until terminated by proper notice by either party.
~ It is automatically renewed until proper notice of termination is given, usually one full period in advance.
How may a periodic tenancy be created?
(3 ways)
(i) Express Agreement (e.g., L leases to T from month-to-month)
(ii) Implication (e.g., L leases to T at a rent of $100 payable monthly); or
(iii) Operation of Law (e.g., T remains in possession after the lease expires, and L treats it as a periodic tenancy; or the lease is invalid, but T goes into possession).
How is a Periodic Tenancy terminated?
A periodic tenancy is automatically renewed until proper notice of termination is given.
~ Usually, the notice must be one full period in advance
What is a Tenancy at Will?
A tenancy at will is terminable at the will of either the landlord or the tenant; is a tenancy of no stated duration that lasts as long as both parties desire.
How is a tenancy at will created?
Generally, a tenancy at will must be created by express agreement that the lease can be terminated at any time.
How is a tenancy at will terminated?
A tenancy at will may be terminated without notice by any party with the power to do so, or it may be terminated by operation of law (e.g., for death, commission of waste, etc.)
What is a Tenancy at Sufferance?
A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy.
How is a tenancy at sufferance terminated?
A tenancy at sufferance lasts only until the landlord takes steps to evict the tenant. No notice of termination is required.
What is The Hold-Over Doctrine?
If a tenant continues in possession after his right to possession has ended
What are the Options for a Landlord in a hold-over tenant situation?
(2 options)
(i) evict him, or (ii) bind him to a new periodic tenancy.
What is a Lease?
A lease is a contract that governs the landlord-tenant relationship.
How are covenants in a lease read?
Covenants in the lease are generally independent; i.e., if one party breaches a covenant, the other party can recover damages but must still perform his promises and cannot terminate the landlord-tenant relationship.
~ The doctrines of actual and constructive eviction and the implied warranty of habitability are exceptions to the rule.
~ Also, many states have created a statutory exception allowing the landlord to terminate the lease for the nonpayment of rent.
What is Voluntary (affirmative) waste by a tenant?
Voluntary waste results when the tenant intentionally or negligently damages the premises or exploits minerals on property.
What is Permissive waste by a tenant?
Permissive waste occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements.
~ If the duty is shifted to the landlord (by lease or statute), the tenant has a duty to report deficiencies promptly.
What is Ameliorative waste by a tenant?
Ameliorative waste occurs when the tenant alters the leased property, thereby increasing its value.
~ Generally, the tenant is liable for the cost of restoration.
~ There is a modern exception to this rule, however, which permits a tenant to make this type of change if he is a long-term tenant and the change reflects changes in the neighborhood.
If the tenant specifically covenants to make repairs, how does this duty compare to his duty implied by the law of waste?
If the tenant specifically covenants to make repairs, his duty will be higher than the duty implied by the law of waste.
~ The tenant has a duty to repair even ordinary wear and tear unless expressly excluded, but has no duty to repair structural failures or damage from fire or other casualty unless expressly included.
~ A tenant with a duty to repair is liable under such a covenant for all other defects, including reconstruction if the premises are destroyed.
What is the Landlord's right if the tenant uses premises for Illegal Purposes?
If the tenant uses the premises for an illegal purpose, the landlord may terminate the lease or obtain damages and injunctive relief.
~ Occasional unlawful conduct by the tenant does not breach this duty.
What may the landlord to fi the Tenant is on Premises but Fails to Pay Rent?
Evict or Sue for Rent
~ Thus, if a tenant is on the premises and fails to pay rent, the landlord may bring suit for rent due or may evict the tenant under the state's unlawful detainer statute.
If the Tenant Abandons the property/lease, what may landlord do?
Do Nothing or Repossess.
If the tenant unjustifiably abandons the property the majority view is that the landlord has a duty to mitigate damages by seeking to relet the premises.
~ If the landlord repossesses and/or relets, the tenant's liability depends on whether the landlord has accepted the surrender.
~ If surrender is not found, the tenant is liable for the difference between the promised rent and the fair rental value of the property (in case of reletting, between the promised rent and the rent received from the reletting).
~ If surrender is found, the tenant is free from any rent liability accruing after abandonment.
~ Note that the landlord's resumption of possession for himself constitutes acceptance of surrender.
What is the landlord's duty to repair?
Subject to modification by the lease, a statute, or the implied warranty of habitability, the general rule is that a landlord has no duty to repair or maintain the premises.
What is the Landlord's Duty to Deliver Possession of the Premises?
Statutes in most states require the landlord to put the tenant in actual possession of the premises at the beginning of the leasehold term; i.e., the landlord is in breach if he has not evicted a hold-over tenant by the beginning of the lease term.
What is the Implied Covenant of Quiet Enjoyment?
Every lease has an implied covenant that neither the landlord nor a paramount title holder (e.g., a prior mortgage who forecloses) will interfere with the tenant's quiet enjoyment and possession of the premises.
What is Actual Eviction (entire premises)?
Actual eviction occurs when the landlord or a paramount title holder excludes the tenant from the entire leased premises.
~ Actual eviction terminates the tenant's obligation to pay rent.
What is Partial Eviction?
Partial eviction occurs when the tenant is physically excluded from only part of the leased premises.
~ Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the entire premises, even though the tenant continutes in possession of the remainder.
~ Partial eviction by a third person with paramount title results in an apportionment of rent; i.e., the tenant is liable for the reasoonable rental value of the portion she continues to possess.
What is Constructive Eviction?
If the landlord does something or, more often, fails to provide a service he has a legal duty to provide, that renders the property uninhabitable, the tenant may terminate the lease and seek damages.
~ The conditions must be the result of the landlord's actions (not a neighbor's or other third party's) and the tenant must vacate the premises within a reasonable time.
What is the Implied Warranty of Habitability?
Most jurisdictions imply a covenant of habitability into resedential leases. This warranty is nonwaivable.
~ The landlord's duty is tied to standards of local housing codes.
What may the tenant do if the landlord breaches the Implied Warranty of Habitability?
(4 options)
(i) terminate the lease;
(ii) make repairs and offset the cost against future rent;
(iii) abate the rent to an amount equal to the fair rental value in view of the defects; or
(iv) remain in possession, pay full rent, and sue for damages.
What is Retalitory Eviction?
In many states, a landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant's exercise of her legal rights, including reporting housing or building code violations. Many statutes presume a retalitory motive if the landlord acts within, for example, 90 to 180 days after the tenant exercises her rights. To overcome this presumption, the landlord must show a valid, nonretalitory reasons for his actions.
What is an Assignment?
A complete transfer of the entire remaining term is an assignment
~ If the tenant retains any party of the remaining term (other than a right to reenter upon breach), the transfer is a sublease.
What are the Consequences of an Assignment?
An assignee stands in the shoes of the original tenant in a direct relationship with the landlord;
~ i.e., the assignee and the landlord are in "privity of estate"; and each is liable to the other on all covenants in the lease that "run with the land."
When does a covenant run with the land?
A covenant runs with the land if the original parties to the lease so intend and if the covenant "touches and concerns" the land (i.e., benefits the landlord and burdens the tenant or vice versa) with respect to their interests in the property.
To whom does an assignee owe rent?
Since a covenant to pay rent runs with the land, the assignee owes rent directly to the landlord.
After assignment, what are the obligations of the original tenant?
After assignment, the original tenant is no longer in privity of estate with the landlord but remains liable on the original contractual obligation to pay rent (privity of contract).
What is the relationship of the sublessee relationship with landlord?
A sublesee is the tenant of the original lessee and usually pays rent to the original lessee, who then pays the landlord.
~ A sublessee is not personally liable to the landlord for rent or for the performance of any of the covenants in the main lease unless the sublessee expressly assumes the covenants.
May the sublessee enforce covenants in the original lease?
A sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
How are Covenants Against Assignment or Sublease construed?
Lease covenants restricting assignment and sublease are strictly construed against the landlord. (Thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa).
What are the Rights of Assignee of the landlord Against Tenants (attornment)?
Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The benefit of all tenant covenants that touch and concern the land run with the landlord's estate to the new owner.
What are the Liabilities of landlord's Assignee to Tenants?
The burden of the landlord's covenants that touch and concern the land runs with the landlord's estate to the assignee; thus, the assignee is liable for the performance of those covenants.
~ The original landlord also remains liable on all of the covenants that he made in the lease.
What results when there is a Condemnation of a Leaseholds?
If the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished because both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate.
~ The lessee is entitled to compensation. However, if the taking is temporary or partial, the tenant is not discharged from the rent obligation, but is entitled to compensation (i.e., a share of the condemnation award) for the taking.
What is the rule regarding a Landlord's Liability for a Concealed Dangerous Condition (Latent Defect)?
If, at the time the lease is entered into, the landlord knows (or should know) of a dangerous condition that the tenant could not discover by reasonable inspection, the landlord must disclose it (not repair it).
~ Otherwise, the landlord will be liable for any injuries resulting from the condition.
~ If the tenant accepts the premises after disclosure, she assumes the risk for herself and others; the landlord is no longer liable.
When will the Landlord will be liable for injuries to members of the public?
(3 elements)
1) If he Knows (or should know) of a dangerous condition;
2) Has reason to believe the tenant may admit the public before repairing the condition; and
3) Fails to repair the condition.
What is the Landlord's liability for repairs (after tenant takes possession)?
Although the landlord is not liable for injuries from dangerous conditions arising after the tenant takes possession, if the landlord undertakes such repairs, he owes a duty of reasonable care.
The landlord also has a duty of reasonable care in maintaining common areas (e.g., halls, elevators).
~ If the landlord covenants to repair or has a statutory duty to repair (e.g., housing codes), he is liable for injuries resulting from failure to repair or negligent repair.
What is the Landlord's liability for a Furnished Short-Term Residence?
A landlord who rents a fully furnished premises for a short period (e.g., summer cottage) is under a stricter duty.
~ He is liable for injuries resulting from any defect whether or not he knew of the defect.
What is the Modern trend for landlord liability?
Many courts are now holding that a landlord owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries resulting from ordinary negligence if he had notice of a defect and an opportunity to repair it.
What is the definition of a fixture?
A fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes with the ownership of the land.
~ An item is a "fixture" if the objective intention of the party who made the annexation was to make the item part of the realty.
In a Landlord-Tenant situation, what controls as to whether an item is a fixture?
An agreement between the landlord and tenant is controlling on whether an annexed chattel is a fixture.
~ Absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chattels if removal would not damage the premises or destroy the chattel.
How are Licensees or Trespassers/adverse possessors treated when it comes to annexations?
Licensees are treated much like tenants, whereas trespassers normally lose their annexations. Thus, absent a statute, an adverse possessor or good faith trespasser cannot remove fixtures (e.g., house erroneously constructed on a parcel that possessor believed she owned).
What is the general rule on Third-Party Liens on Land to which Chattel Affixed?
Generally, the mortgagee has no greater rights than the mortgagor. Thus, chattels annexed by the mortgagor's tenant are generally not within the lien of the mortgagee except where the mortgage is made after the lease and the mortgagee is without notice of the tenant's rights.
Where there is a Third-Party Lien on a Chattel Affixed to Land, who wins as between the seller of the chattel and the mortgagee?
If the landowner defaults on both the chattel and mortgage payments, as between the seller and the mortgagee, the general rule is that the first to record his interest wins.
However, under the U.C.C., a seller wins if the "fixture filing" is recorded within 20 days after the chattel is affixed to the land.
In general, what are Easements, profits, covenants, and servitudes?
They are nonpossessory interests in land, creating a right to use land possessed by someone else.
What is an easement, what does an easement allow an easement holder to do?
An easement is the right or freedom to do something or the right to prevent someone else from doing something on the real property of another.
An easement holder has the right to use another's tract of land for a special purpose (e.g., to lay pipe, to acces a road or lake), but has no right to possess or enjoy that land.
What does an affirmative easement allow the holder to do?
the holder of an affirmative easemetn is entitled to make affirmative use of the servient tenement.
What does a Negative Easement allow the holder to do?
A negative easement entitles the privilgeholder to compel the possessor of the servient tenement to refrain from engaging in an activity on the servient estate (e.g., servient tenement holder prevented from building a structure in excess of three stories)
What are the four areas a negative easement is usually confined to?
(i) for light, (ii) for air, (iii) lateral and subjacent support, and (iv) for flow of an artificial stream.
~ negative easements really are restrictive covenants
What is an Easement Appurtenant?
For an easement to be appurtenant, there must be two tracts: the dominant tenement (i.e., the estate benefited by the easement), and the servient tenement (the estate subject to the easement right).
An easement is appurtenant when it benefits the holder in his physical use or enjoyment of another tract of land.
How does an easement appurtenant pass?
An easement appurtenant automatically passes with the transfer of the benefited land, regardless of whether it is mentioned in the conveyance (it is a part of the land);
How does a burden of the easement pass on the servient estate, and what is the exception?
The burden of the easement also passes automatically with the servient estate unless the new owner is a bona fide purchaser with no actual, constructive, or inquiry notice of the easement;
What happens if a BFP takes without notice of the easement?
The easement will be considered to terminate.
What is an Easement in Gross?
The holder of an easement in gross acquires a right to use the servient tenement independent of his ownership of another tract of land;
~ i.e., the easement benefits the holder rather than another parcel; there is no dominant tenement, and the easement passes entirely apart from any transfer of land.
What is the rule as to the transferability of a personal easement?
An easement in gross for the holder's personal pleasure (e.g., right to swim on another's pond) is not transferable.
How about the transferability of an easement in gross that serves an economic or commercial interest?
An easement in gross that serves an economic or commercial interest (e.g., right to erect billboards on Blackacre) is transferable.
What are the basic methods of easement creation?
express grant or reservation, implication,
and prescription.
What are the requirement for an Easement by express grant?
2 requirements
Any easement must be in writing and signed by the holder of the servient tenement unless its duration is brief enough (commonly one year or less) to be outside a particular state's Statute of Frauds' coverage.
~ A grant of easement must comply with all the formal requisites of a deed.
What is an easement by express Reservation?
An easement by reservation arises when a grantor conveys title to land, but reserves the right to continue to use the tract for a special purpose.
~ under the majority view, an easement can be reserved only for the grantor.
~ An attempt to reserve an easement for anyone else is void.
Generally, what is an Easement by implication?
Even when no document or agreement has created an express easement, an easement right may still be understood (or "implied") by a situation or circumstances.
An easement by implication is created by operation of law; it is an exception to the Statute of Frauds.
What is an Easement Implied from Existing Use ("Quasi-Easement")?
(4 elements)
a) there must be a Common ownership immediately prior to the division of a single tract
b) An apparent and continuous use exists on the "servient" part
c) That is reasonably necessary for the enjoyment of the "dominant" part, and
d) the court determines that the parties intended the use to continue after division of the land.
What are the two types of Easements Implied without Any Existing Use?
a) Subdivision Plat
b) Profit a Prendre
What is the rule as relates to subdivision plats?
Where lots are sold in a subdivision with reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots.
What is the rule as relating to a Profit a Prendre?
The holder of the profit a prende has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product.
What is an Easement by Necessity?
An easement by necessity arises when a landowner sells a portion of his tract and by this division deprives one lot access to a public road.
An easement by necessity Requires:
(i) Common ownership of the dominant and servient estates at some time in the past; and
(ii) Strict necessity for the easement exists (as in no other means to get to a public highway);
~ the easement lasts only as long as the necessity does.
~ The owner of the servient parcel has the right to locate the easement.
What is an Easement by Prescription?
Acquiring an easement by prescription is analogous to acquiring property by adverse possession.
To acquire a prescriptive easement, the use must be:
(i) Open and notorious (i.e., discoverable upon inspection);
(ii) Adverse (without the owner's permission); and
(iii) Continuous and uninterrupted;
(iv) for the statutory period.
~ unlike in Adverse Possession, exclusivity is not required.
What is an Easement by estoppel?
It is a situation where detrimental reliance creates the easement;
if a licensee invests substantial amounts of money or labor in reliance on a license, the licensor is estopped to revoke.
~ The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures.
Generally, what is the scope of an easement?
In the absence of specific limitations in the grant, courts assume the easement was intended to meet both present and future needs of the dominant tenement (e.g., easement may widen to accomodate new, wider cars).
~ If, however, the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonably overburden the servient estate.
What are the ways an easement is Terminated?
(8 ways)
(1) Stated Conditions;
(2) Unity of Ownership (Merger);
(3) Release
(4) Abandonment
(5) Estoppel
(6) Prescription
(7) Necessity
(8) Condemnation and Destruction
What is termination by Unity of Ownership (Merger)?
If the same person acquires ownership of both the easement and the servient estate, the dominant and servient estates merge and the easement is destroyed.
What is Termination by Release?
An easement (including an easement in gross, which is otherwise inalienable) can be terminated by a deed of release from the owner of the easement to the owner of the servient tenement.
What is Termination by Abandonment?
An easement is extinguished when its holder demonstrates by physical action (e.g., building a structure that blocks access to easement on adjoining lot) an intent to permanently abandon the easement.
What is Termination by Estoppel?
Oral expressions of an intent to abandon do not terminate an easement unless in writing (release) or accompanied by action (abandonment).
~ But if the owner of the servient estate changes his position in reasonable reliance on the representations made or conduct by the owner of the easement, the easement terminates through estoppel.
What is Termination by Prescription?
To terminate an easement by prescription there must be an adverse, continuous interruption of the use for the prescription period (usually 20 years).
How is an Easement by Necessity terminated?
Easements created by necessity expire as soon as the necessity ends.
How is an easement Terminated by Condemnation and Destruction?
Condemnation of the servient estate extinguishes all easements.
~ Courts are split as to whether easement holders are entitled to compensation.
~ Involuntary destruction of a structure in which there is an easement extinguishes the easement; voluntary destruction does not.
Compare Licenses to Easements
Licenses privilege their holders to go upon the land of another. But unlike an easement, a license is not an interest in land; it is merely a privilege, revocable at the will of the licensor.
~ A license is personal to the owner, and thus inalienable.
~ Any attempt to transfer results in revocation by operation of law.
A license becomes irrevocable in the following circumstances (2 ways):
Estoppel and
License coupled with an interest
How is an easement by estoppel created?
If a licensee invests substantial amounts of money or labor in reliance on the license, the licensor is estopped to revoke.
~ The license becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures.
How long does a License coupled with an interest last?
A license coupled with an interest is irrevocable as long as the interest lasts.
~ For example, the vendee of a chattel may enter the seller's land to remove the chattel, and a future interest holder may enter and inspect the land for waste.
What is a Profit?
A Profit entitles the holder of the benefit to take some resources (soil, timber, materials, fish, etc.) from the servient estate.
What is implied in every profit?
Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources.
~ All of the rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may also be extinguished through surcharge (misuse that overly burdens the servient estate).
What are Coventants Running with the Land at Law (Real Covenants)?
A real covenant, normally found in a deed, is a written promise to do something on the land (e.g. maintain a fence) or a promise not to do something on the land (e.g., not build a multi-family dwelling).
What do real covenants do (in terms of the land), and what does this mean?
Real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenants.
~ A writing is always required.
What are the Requirement for a BURDEN to Run?
T.I.N. + Privities
1. Intent
2. Notice
3. Horizontal Privity
4. Vertical Privity
5. Touch and Concern
What is "intent", in terms of a real covenant?
The covenanting parties must have intended that successors in interest to the covenantor be bound by the terms of the covenant.
~ This intent may be inferred from circumstances surrounding the creation of the covenant, but is usually found in the language of the conveyance itself.
What is "notice", in relation to a real covenant?
Under modern recording acts, to be bound by a covenant, a subsequent purchaser for value must have had actual, inquiry, or constructive (record) notice of the arrangement at the time of purchase.
~ only BFPs are protected; Someone who does not give value may be bound by a covenant at law (not equity) even if he has no actual or constructive notice of the covenant
What is Horizontal Privity in terms of a real covenant?
At the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant (e.g., grantor-grantee, landlord-tenant, mortgagee-mortgagor).
~ The covenant must accompany a conveyance in land.
~ Horizontal privity concerns only the original parties
What is Vertical Privity in terms of a real covenant?
To be bound, the successor in interest to the covenanting party must hold the entire durational interest held by the covenantor at the time she made the covenant
What does Touch and Concern mean in terms of a real covenant?
(two types of covenants)
Negative covenants: touch and concern the land if they restrict the holder of the servient estate in his use of that parcel of land. [example]
Affirmative covenants: touch and concern the land if they require the holder of the servient estate to do something, which increases his obligations in connnection with his enjoyment of the land. [ex., maintain a fence]
What are the Requirement for Benefit to Run in a Real Covenant?
1. Intent
2. Vertical Privity
3. Touch and Concern
If the preceding three requirements are met, the promisee's (i.e., the one who is gaining the benefit from the promise) successor in interest may enforce the covenant (enjoy the benefit)
What is Vertical Privity in terms of the running of the benefit?
The benefits of a covenant run to the assignees of the original estate or of any lesser estate; i.e., any succeeding possessory estate may enforce the benefit.
Touch and Concern - what does it mean in terms of the running of a benefit?
The benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee (the party benefiting from the promise) and her successors in their use and enjoyment of the benefited land.
What is the remedy for breach of a real covenant?
A breach of a real covenant is remedied by an award of money damages, collectible from the defendant's general assets.
~ If an injunction is sought, the promise must be enforced as an equitable servitude rather than a real covenant.
How are real covenants Terminated?
(at least 3 ways)
As with all other nonpossessory interests, a covenant may be terminated by
(i) a written release,
(ii) the merger of benefited and burdened estates, or
(iii) the condemnation of the burdened property.
What are Equitable Servitudes?
An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant.
~ The usual remedy is an injunction.
How are equitable servitudes created?
Generally, as with real covenants, equitable servitudes are created by covenants contained in a writing that satisfies the Statute of Frauds.
What is the exception to an equitable servitude being in a writing that satisfies the Statute of Frauds?
Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision.
~ Thus, if a developer subdivides land, and some deeds contain negative covenants while others do not, the negative covenants will be binding on all parcels provided there was a common scheme of development and notice of the covenants.
When will negative equitable servitudes be implied?
Reciprocal negative servitudes will be implied only if, at the time that sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. The scheme scheme may be evidenced by:
(i) a recorded plat;
(ii) a general pattern of restrictions, or
(iii) oral representations to early buyers.
To be bound by a covenant not in her deed in a subdivision setting, what must a grantee have had?
A grantee must have had notice of the covenants in the deeds of others in the subdivision.
~ Notice may be actual (direct knowledge of the covenants), inquiry (neighborhood appears to conform to common restrictions), or record (prior deed with covenant in grantee's chain of title).
What are the Requirement for a Burden to Run in equitable servitude situation?
A successor of the promisor will be bound by the covenant if:
1. Intent: the covenanting parties intended that the servitude be enforceable by and against assignees;
2. Notice- the successor of the promisor has actual, inquiry, or, record notice of the servitude; and
3. Touch and Concern- The covenant touches and concerns the land (i.e., it restricts the holder of the servient estate in his use of that parcel.
What are the Requirements for a Benefit to Run in equitable servitude situation?
The benefit of an equitable servitude runs with the land, and thus, is enforceable by the promisee's successors if:
1. Intent - the original parties so intended, and
2. Touch and Concern - the servitude touches and concerns the benefited property.

[In contrast to real covenants, which require vertical and horizontal privity of estate for burdens to run, and vertical privity for benefits to run, no privity of estate is required for an equitable servitude to be enforceable by and against assignees.]
How are equitable servitudes Terminated?
(3 ways)
Like other nonpossessory interests, an equitable servitude may be extinguished by:
(i) Written release from the benefit holders;
(ii) merger of the benefited and burdened estates,
(iii) condemnation of the burdened property.
Generally, What is Adverse Possession?
Title by adverse possession results from the operation of the statute of limitations for trespass. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
What are the elements of adverse possession?
(5 elements)
(R.O.A.C.H.)
1. Running of the Statute
2. Open and Notorious Possession
3. Actual and Exclusive Possession
4. Continuous possession
5. Hostile
When is possession Open and Notorious?
Possession is open and notorious when it is the kind of use the owner would make of the land.
The adverse possessor's ocupation must be sufficiently apparent to put the true owner on notice that a trespass is occuring.
What is Actual and Exclusive Possession?
An adverse possessor will gain title only to land she actually occupies.
~ "Exclusive" means that the possessor is not sharing with the true owner or the public. Two or more people may obtain title by adverse possession; they take title as tenants in common.
What is meant by Continuous possession?
An adverse claimant's possession must be continuous throughout the statutory period.
~ Intermittent periods of occupancy are not sufficient. However, constant use by the claimant is not required as long as possession is of a type that the usual owner would make.
~ Also, there need not be continuous possession by the same person; an adverse possessor can tack her own possession onto the periods of adverse possession of her predecessors, but privity is required.
What is the Hostility requirement in an adverse possession situation?
The hostility requirement is satisfied if the possessor enters without the owner's permission.
~ The adverse possessor's state of mind is irrelevant
If an adverse possessor uses the land in violation of a restrictive covenant in the owner's deed, what result?
If an adverse possessor uses the land in violation of a restrictive covenant in the owner's deed for the limitations period, she takes free of the restriction.
~ If, however, the possessor's use complies with such a covenant, she takes title subject to the restriction.
What are the Equitable Defenses to Enforcement of an equitable servitude?
(5)
a. The persons seeking enforcement is violating a similar restriction on his own land (unclean hands);
b. A benefited party acquiesced in a violation of the servitude by one burdened party;
c. A benefited party acted in such a way that a reasonable pesron would believe the covenant was abandoned (estoppel);
d. The benefited party fails to bring suit against the violator within a reasonable time (laches); or
e. The neighborhood has changed so significantly that enforcement would be inequitable.
What are the Statute of Frauds requirements for a Land Sale Contract (generally)?
A contract must be in writing and contain the signature of the party to be charged and the essential terms (e.g., parties, description of land, price).

i - identify of the parties (grantor, grantee)
ii- sufficient description of the land conveyed; is adequate if it provides a good lead as to the indetity of the property to be conveyed.
iii- the purchase price
iv- promises on both sides
v- signed by the party to be charged (usually the grantor).
Parole evidence can be used to supplement a written description or clear up an ambiguity
patent ambiguity - on the face; parole evidence can be used.
latent ambiguity - not on face; parole evidence can be used
What can take a land sale contract out of the Statute of Frauds?
Part performance (e.g., possession, substantial improvements, payment of purchase price) can take a contract out of the statute.
What are the Specific contract requirements to a land sale contract?
(5 items)
A contract must be in writing and contain the signature of the party to be charged and the essential terms (e.g., parties, description of land, price).
Part performance (e.g., possession, substantial improvements, payment of purchase price) can take a contract out of the statute.

i - identify of the parties (grantor, grantee)
ii- sufficient description of the land conveyed; is adequate if it provides a good lead as to the identity of the property to be conveyed.
iii- the purchase price
iv- promises on both sides
v- signed by the party to be charged (usually the grantor).
Parole evidence can be used to supplement a written description or clear up an ambiguity
What is the Doctrine of Equitable Conversion?
Once a contract is signed, equity regards the buyer as the owner of the real property;
The seller's interest (the right to the proceeds of sale) is considered personal property;
~ The bare legal title that remains in the seller is considered to be held in trust for the buyer.
~ The right to possession follows the bare legal title, however; thus, the seller is entitled to possession until closing.
Who does the risk of loss fall on before closing?
If property is destroyed (without fault of either party) before closing, the majority rule places the risk on the buyer.
~ Even though the risk of loss is on the buyer, if the property is damaged or destroyed, the seller must credit any fire or casualty insurance proceeds he receives against the purchase price the buyer is required to pay
Under the Doctrine of Equitable Conversion, what happens regarding Passage of Title of the property on Death of a party?
Under the doctrine of equitable conversion, if a party to a land sale contract dies before the contract is completed, the seller's interest passes as personal property and the buyer's interest passes as real property.
~ Thus, if the seller dies, bare legal title passes to his heirs or devisees, but they must give up title to the buyer at closing.
~ If the buyer dies, his heirs or devisees can demand conveyance of the land at closing.
What is Marketable Title?
Every contract contains an implied warranty that the seller will provide marketable title (title reasonably free from doubt) at closing.
~ It need not be perfect title, but must be free of questions that present an unreasonable risk of litigation.
Do Defects in Record Chain of Title render title unmarketable?
Title may be unmarketable because of a defect in the chain of title (e.g., variation in land description in deeds, defectively executed deed, evidence that a prior grantor lacked capacity to convey).
Do Future Interests Held by Unborn or Unascertained Parties render title unmarketable?
While most states consider all types of future interests transferable, when a holder of a future interest is unborn or unascertained it is impossible to convey marketable title.
Do Encumbrances render title unmarketable?
Generally, mortgages, liens, restrictive covenants, easements, and significant encroachments render title unmarketable.
~ A beneficial easement, however, if visible or known to the buyer, does not impair the marketability of title.
~ Remember that a seller has the right to satisfy a mortgage or lien at closing, with the proceeds of the sale.
~ Thus, the buyer cannot claim title is unmarketable because it is subject to a mortgage prior to closing, if the closing will result in marketable title.
Do Zoning restrictions render title unmarketable?
Zoning restrictions do not affect marketability, but an existing violation of a zoning ordinance does render title unmarketable.
When is the Time of Marketability?
If the seller has agreed to furnish title at the date of closing, the buyer cannot rescind prior to that date on grounds that the seller's title is not marketable.
~ Note that in an Installment Land Contract, the seller need not provide marketable title until the buyer has made his last payment.
When does liability end for the implied warranty of marketability?
After Closing- once the closing occurs and the deed changes hands, the seller in no longer liable on this contractual warranty;
~ the seller is then liable only for promises made in the deed. i.e., it ends with the changing hands of the deed (contract and deed merge).
What is the Remedy if Title is Not Marketable?
The buyer must notify the seller that his title is unmarketable and give him reasonable time to cure the defects.
~ If the seller fails to cure the defects, the buyer's remedies include rescission, damages, specific performance with abatement, and a quiet title suit.
~ But if closing occurs, the contract and deed merge, and the seller's liability on the implied contractual warranty ends.
What is the general rule on Time of Performance in real estate contracts?
Courts presume time is not "of the essence" in real estate contracts.
~ Thus, the closing date not absolutely binding, and a party late in tendering her owne performance can perform can still enforce if she tenders within a reasonable time (e.g., two months) after the closing date.
What is a party's Liability if time is of the essence?
If time is of the essence, a party who fails to tender performance on the closing date is in breach and may not enforce the contract.
~ Even if time is not of the essence, a party who is late in tendering performance is liable for incidental losses.
In terms of Tender of Performance, what type of conditions are the buyer's and seller's obligations?
The buyer's obligation to pay and the seller's obligation to convey are concurrent conditions.
~ Thus, neither party is in breach until the other tenders performance (even if the closing date passes)
~ If neither party tenders performance, the closing date is extended until one of them does so.
What Remedies are available for Breach of a Sales Contract?
The nonbreaching party is entitled to damages
(difference between the contract price and market value on date of the breach, plus incidental costs) or, because land is unique, specific performance
~ Note that if the buyer wishes to proceed despite unmarketable title, she can usually get specific performance with an abatement of the purchase price.
What is a Seller's Liability for Defective Property?
Contracts of sale and deeds of real property carry no implied warranty of quality or fitness for purpose.
~ However, a majority of courts now recognize a warranty of fitness or quality in the sale of a new house.
For Sale of Existing Land and Buildings - what may the seller be liable for?
The seller of existing buildings (not new construction) may be liable to the purchaser for defects such as a leaky roof, flooding basement, or termite infestation, on any of several different theories:
1) Misrepresentation (fraud)
2) Active Concealment
3) Failure to Disclose
When, for the sale of existing land and buildings, will the seller be liabile for defects based on misrepresentation?
(rule)
The seller is liable for defects about which he knowingly or negligently made a false statement of fact to the buyer if the buyer relied on the statement and it materially affected the value of the property.
When, for the sale of existing land and buildings, will the seller be liabile for defects based on Active Concealment (rule)?
The seller will be liable for defects, even without making any statements, if he took steps to conceal the defects (e.g., wallpapering over water damage).
When, for the sale of existing land and buildings, will the seller be liabile for defects based on a Failure to Disclose? (rule - 3 elements)
Most states hold a seller liable for failure to disclose defects if:
(i) he knows or has reason to know of the defect;
(ii) the defect is not apparent, and the seller knows the buyer is unlikely to discover it upon ordinary inspection; and
(iii) the defect is serious and would probably cause the buyer to reconsider the purchase if known.
~ Factors include whether the property is a personal residence, whether the defect is dangerous, and whether the seller created the defect or made a failed attempt to repair it.
Is a general disclaimer sufficient to overcome a seller's liability for fraud, concealment, or (in the states that recognize it) failure to disclose.
No
~ If the disclaimer identifies specific types of defects (e.g., "seller is not liable for any defects in the roof"), it will likely be upheld.
What do Deeds do?
Deeds transfer title to an interest in real property.
What are the Formalities for a deed?
(3 things)
(i) it must be in writing,
(ii) signed by the grantor, and
(iii) reasonably identify the parties and land (good lead)
Is parol evidence admissible to resolve conflicts related to a land description in a deed?
~ parol evidence is generally admissible to resolve patent and latent ambiguities if the description gives a good lead, but may not be admissible if the description is inadequate.
What will the result be for void and voidable Defective Deeds?
A void deed will be set aside by the court even if the property has passed to a bona fide purchaser, but a voidable deed will be set aside only if the property has not passed to a bona fide purchaser (if it has not passed to a bfp, it will be set aside).
What are types of Void deeds?
Void deeds: include those that are forged, were never delivered, or were obtained by fraud in the factum (i.e., the grantor was deceived and did not realize that she was executing a deed).
What are types of Voidable deeds?
Voidable deeds include those executed by minors or incapacitated persons, and those obtained through fraud in the inducement, duress, undue influence, mistake, and breach of fiduciary duty.
Even when a deed complies with required formalities, it may be set aside by the grantor's creditors in what situations?
(2 instances):
(i) if it was made with actual intent to hinder, delay, or defraud any creditor of the grantor; or
(ii) if it was made without receving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent or became insolvent as a result of the transfer.
~ However, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
What is required in the Description of Land Conveyed?
A description is sufficient if it provides a good lead to the indentity of the property (e.g., "all my land in Stockton").
~ If it is too indefinite, the grantor retains title (but reformation of the deed is a possible remedy).
~ Parol evidence is generally admissible to resolve patent or latent ambiguities if the description gives a good lead, but may not be admissible where the description is inadequate.
What are the Rules of Construction, in terms of priority given for inconsistent or conflicting descriptions of land?
(i) natural monuments (e.g., oak tree), (ii) artificial monuments (e.g., stakes, buildings), (iii) courses (e.g., angles), (iv) distances (e.g., feet, yards), (v) name (e.g., Blackacre), and (vi) quantity (e.g., 300 acres).
For Boundary Cases, presumptively, title to land passes where?
to the center of a right-of-way or water boundary. This presumption can be rebutted by language in the deed.
In variable boundary line cases (i.e., water boundary) the slow and imperceptible change in the course of a river or stream operates to change the legal boundary;
When will a deed be reformed?
A deed will be reformed if it does not represent the parties' agreement because of:
(i) mutual mistake;
(ii) scrivener's error;
(iii) a unilateral mistake caused by misrepresentation or other inequitable conduct.
What is the general rule re DELIVERY AND ACCEPTANCE?
A deed is not effective unless it has been delivered and accepted.
~ a deed to a dead person is void and conveys no title. The fact that the grantor was unaware of the grantee's death is irrelevant. Title remains in the grantor.
In General, what does delivery refer to?
Delivery refers to the grantor's intention to make a deed presently effective even if possession is postponed.
~ Delivery may be satisfied by manual delivery, notarized acknowledgment by the grantor, or anything else showing the grantor's intent to deliver.
When is parol evidence available in terms of delivery?
Parol evidence is admissible on the issue of intent to deliver, but not to show delivery was conditional; (if a deed is absolute on its face but delivered with an oral condition, the condition is disregarded and the delivery is absolute.
Retention of and Interest by a Grantor or Conditional Delivery indicates what?
Retention of control or interest by the grantor (e.g., right to revoke) indicates a lack of intent to pass title.
~ Thus, if a grantor executes a deed but does not deliver it during his lifetime, no title passes.
~ Failure to record a delivered deed does not affect the passage of title even if the parties believe that the deed is ineffective until recording.
IS A delivered deed that provides that title will not pass until the grantor's death valid?
A properly executed and delivered deed that provides that title will not pass until the grantor's death is valid and creates a future interest in the Grantee.
What is the result of an Oral Condition Not Contained in a Deed?
If a deed is absolute on its face but delivered with an oral condition, the condition is disregarded and the delivery is absolute. (no parol evidence).
Where a Grantor Gives a Deed to Third Party, is conditional delivery permissible?
Yes
What is the result of a Transfer to a Third-party with No Conditions?
If the grantor gives a deed to a third party with instructions to give it to the grantee, there is a valid delivery.
~ If the grantor fails to give instructions, the validity of the delivery depends on whether the third party could be considered the grantor's agent
~ If he is the grantor's agent, there is no delivery.
Is a Transfer to a Third Party with Conditions in a Commercial Transaction valid?
Yes,
A valid conditional delivery occurs when a grantor gives a deed to a third party with instructions to give it to the grantee when certain conditions occur (e.g., if grantee pays purchase price before a certain date).
~ Parol evidence is admissible here to show that delivery is conditional.
(Rember that the rule is contra where the grantor gives the deed directly to grantee; see supra).
In Commercial transaction with conditions, when can the Grantor recover a deed?
A grantor can revoke only if:
(i) the condition has not yet occurred; and
(ii) there is no enforceable written contract to convey.
What is the result of a Breach of Escrow Conditions?
If a grantee wrongfully acquires the deed from the escrow holder prior to performance of the condition, title does not pass and the grantee cannot give good title to a subsequent purchaser.
What is the "Relation Back" Doctrine?
Title usually passes when the condition occurs, but if justice requires it (e.g., grantor dies or becomes incompetent), and there is an enforceable contract to convey, title may "relate back" to the time when the grantor gave the deed to the third party.
~ Rights of intervening BFPs are protected.
Can the Grantor revoke a donative Transfer to a Third-party with Conditions?
When a grantor gives a deed to a third party to give to a donee when a condition occurs, the main issue is whether the grantor can revoke the deed before the condition occurs.
~ Where the condition is not the grantor's death, delivery is irrevocable and creates a springing executory interest in the donee.
~ Where the condition is the grantor's death, most courts follow the same reasoning but some hold deeds revocable unless there is an enforceable contract to convey (i.e., same as true escrow cases, above).
How does Dedication take place?
An offer may be made by written or oral statement, submission of a map or plat showing the dedication, or opening the land for public use.
~ To be effective, a dedication must be accepted, which may be done by formal resolution, approval of map or plat, or actual assumption of maintenance or improvements.
What are the Convenants in a General Warranty Deed?
(6 of them)
1. Seisin
2. Right to Convey
3. Against Encumbrances
4. Quiet Enjoyment
5. Warranty (Covenant of)
6. Further Assurances
What is the Covenant of Seisin?
The grantor covenants that she has the estate she purports to convey.
~ She must have both title and possession at the time of the grant.
What is the Covenant of Right to Convey?
The grantor covenants that she has the authority to make the grant.
~ Title alone will satisfy this covenant.
~ Seisin and Right to Convey - are the guaranty that the Grantor owns the estate.
What is the Covenant Against Encumbrances?
The grantor covenants against the exsistence of physical (e.g., encroachments) or title (e.g., mortgages) encumbrances (already existing).
What is true of the first three covenants?
These first 3 do not run with the land (are breached, if at all, at the time of conveyance); the last three do run with the land and could be enforced by remote grantees.
What is the Covenant of Quiet Enjoyment?
The grantor covenants that the grantee will not be disturbed by a third-party's lawful claim of title.
What is the Covenant of Warranty?
The grantor agrees to defend against reasonable claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.
~ the covenant for quiet enjoyment and the covenant of warranty are generally considered to be identical covenants for title.
What is the Covenant for Further Assurances?
The grantor promises to perform acts reasonably necessary to perfect title conveyed.
(This covenant is not one of the usual covenants, but is frequently given).
If there are successive conveyances by general warranty deed and the last grantee is evicted by lawful claim of title, what result?
he may sue anyone up the line.
~ Some states allow him to recover to the extent of consideration received by a defendant-covenantor. Other states limit recovery to the lesser of what he paid or what the defendant-covenantor received.
What does a Statutory Special Warranty Deed include?
In many states, use of the word "grant" in a deed creates by implication two limited assurances against acts of the grantor (not her predecessors):
(i) that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee; and
(ii) that the estate is free from encumbrances made by the grantor.
What does a Quitclaim Deed do?
A quitclaim deed releases whatever interest the grantor has. No covenants of title are included or implied.
What is Estoppel by Deed?
If the grantor purports to convey an estate she does not then own, her subsequent acquisition of the estate will inure to the benefit of the grantee.
~ This doctrine applies where the conveyance was by warranty deed, or where the deed purported to convey a particular estate.
~ It is not usually applicable to quitclaim deeds.
What are the Rights of Subsequent Purchasers in an estoppel by deed situation (as against BFP)?
Most courts hold that title inures to the benefit of the grantee only as against the grantor. Thus, if the grantor transfers her after-acquired title to a BFP for value, the BFP will prevail over the original grantee.
What are the Remedies of the Grantee in an estoppel by deed situation?
The original grantee can accept title or sue for damages for breach of covenant.
At common law, if a grantor conveyed the same property twice - who prevailed?
the grantee first in time generally prevailed
In general, what do Recording Acts do?
Recording acts generally protect all bona fide purchasers from secret interests previously created and provide a mechanism for "earlier" grantees to give notice through recordation. These statutes require a grantee to record his deed to put subsequent purchasers on notice of his interest.
Proper recordation gives construcive notice of the first conveyance to everyone, so there can be no subsequent BFPs.
Under Recording Acts, who is the burden on to prove that he qualifies for protection?
There are three major types, but under all three, the burden is on the subsequent taker to prove that he qualifies for protection under the statute.
What is hallmark of a Notice recording act?
The key is that the subsequent purchaser had no actual or constructive notice at the time of the conveyance
~ a subsequent BFP (person who pays value without notice of the prior instrument) prevails over a prior grantee who failed to record.
What is a Race-Notice Recording Statute?
Under a race-notice statute, a subsequent BFP is protected only if she takes without notice and records first (before the prior grantee).
What is a Race Recording Statute?
Under a pure race statute, whoever records first wins. Notice is irrelevant.
Who is Protected by a Recording Act?
Only BFPs are protected from the claims of a prior transferee under "notice" and "race-notice" statutes.
~ To be a BFP, a person must be a purchaser, without notice (actual, constructive, or inquiry), and pay valuable consideration.
Are Judgment Creditors protected by recording statutes?
The majority hold that such a judgment creditor is not protected by the recording statute against a prior unrecorded conveyance by the defendant.
Are those who Purchase from an Heir protected?
A purchaser from an heir or devisee of the record owner is protected against prior unrecorded conveyances of the record owner (now deceased).
What is the Shelter Rule?
A person who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against.
~ This is true even if the transferee had actual notice of a prior unrecorded conveyance.
~ This rule does not, however, help a transferee who previously held title; she cannot "ship through" a BFP to get good title.
What does "Without Notice" mean?
"Without notice" means the purchaser had no actual, constructive (record), or inquiry notice of a prior conveyance at the time she paid consideration and received the interest.
~ it does not matter if she learns of an adverse claim after the conveyance but before recording
What is Actual Notice?
Actual notice includes knowledge obtained from any source (e.g., newspaper, word-of-mouth).
What is Record Notice?
A subsequent purchaser is charged with notice of only those conveyances that are recorded and apear in the chain of title.
What are (Extremely) "Wild Deeds"?
A "wild deed" is a recorded deed that is not connected to the chain of title. It does not impart constructive notice because a subsequent purchaser could not feasibly find it.
Do Deeds Recorded Before the Grantor Obtains Title impart notice?
There is a split of authority on whether a recorded deed, received from a grantor who had no title when conveyed but who afterwards obtains title, imparts constructive notice to subsequent purchasers. Most courts say it does not, and a BFP will win on the grounds that the deed is not in his chain of title. The minority view protects the prior grantee over the BFP on an estoppel by deed theory.
What is Inquiry Notice?
Under certain circumstances, a purchaser is required to make reasonable inquiries. He is charged with knowledge of whatever the inquiry would have revealed, even if in fact he made none.
~ References in recorded instruments to unrecorded transactions, unrecorded instruments in the chain of title (e.g., grantor's title documents are not recorded), and possesion unexplained by the record put a purchaser on inquiry notice. The mere fact that a quitclaim deed was used does not charge the purchaser with inquiry notice.
What is the rule re consideration and whether the the purchaser is protected?
A purchaser is protected by a recording statute only from the time consideration is paid. Thus, even if the deed was delivered and recorded before the consideration was paid, a purchaser will not prevail over deeds recorded subsequently but before the consideration was paid
What is the Effect of Recordation?
Recordation gives prospective subsequent grantees constructive notice of the existence and content of recorded instruments. It also raises a presumption of valid delivery and authenticity.
~ However, it does not validate an invalid deed or protect against interests arising by operation of law (e.g., dower, title by adverse possession); to this extent, BFPs are still in jeopardy.
What is Ademption?
If property is specifically devised or bequeathed in the testator's will, but the testator no longer owns it at the time of death, the gift fails.
Ademption applies only to specific bequests, which can be satisfied only by the delivery of a particular item; they cannot be satisfied by money.
~ A gift of land is always a specific devise.
~ If the testator specifically devises property and then sells or gives away a part of that property, only that portion is adeemed; the remainder passes to the devisee.
With Land Under an Executory Contract what is the rule as it relates to ademption?
Most state statutes do not apply the ademption doctrine (gift fails) to the proceeds of a contract for sale of land that was executory at the time of the testator's death; i.e., the devisee gets the proceeds in place of the land.
~ These statutes take precedence over the equitable conversion doctrine.
When property is damaged or destroyed before the testator's death but the casualty insurance proceeds are not paid until after the testator's death, does the ademption doctrine apply?
Ademption does not usually apply.
~ The beneficiary of the specific bequest takes the insurance proceeds.
~ Similarly, ademption usually does not apply to property condemned by the government where the taking was before the death but the condenmantion award was paid after death.
What is Exoneration?
At common law and in most states, the devisee of specific property is entitled to have the land "exonerated" by the payment of liens and mortgages from the testator's residuary estate. There is a growing trend toward abolition of the exoneration doctrine.
What are Lapse and anti-lapse statutes?
A lapse occurs when the beneficiary of a gift in a will dies before the testator
~ Under the common law, if a lapse occurred, the gift was void.
~ However, nearly all states now have anti-lapse statutes that prevent lapse by permitting the gift to pass to the predeceasing beneficiary's living descendants under certain circumstances.
How are descendants treated, in terms of the anti-lapse statutes?
The anti-lapse statute does not save the gift for the predeceasing beneficiary's estate; rather it substitutes the beneficiary's descendants for the beneficiary. Thus, property will never pass under the anti-lapse statute to a predeceasing beneficiary's spouse.
Does the conveyance of land includes crops growing on it?
Generally, the conveyance of land includes crops growing on it.
However, exceptions exist for:
(i) crops that have already been harvested or severed from the land;
(ii) crops planted by a tenant during the term of the tenancy.
~ For title to crops to remain in a tenant, the tenancy must have been of uncertain duration and have terminated without fault on the part of the tenant.
Who are the parties to a mortgage, what is it?
The debtor/notemaker is the mortgagor. The lender is the mortgagee.
A mortgage is the pledging of a property to a lender as a security for a mortgage loan. While a mortgage in itself is not a debt, it is evidence of a debt. It is a transfer of an interest in land, from the owner to the mortgage lender, on the condition that this interest will be returned to the owner of the real estate when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.
~ restated: it is a security interest in land; note is evidence of the debt, the mortgage is security for the debt.
What is a Deed of Trust?
The deed of trust is a deed by the borrower to a trustee for the purposes of securing a debt.
~ In most states, it also merely creates a lien on the title and not a title transfer, regardless of its terms. It differs from a mortgage in that, in many states, it can be foreclosed by a non-judicial sale held by the trustee.[5] It is also possible to foreclose a deed of trust through a judicial proceeding.
~ The debtor/notemaker is the trustor. He gives a deed of trust to third-party (trustee), who is usually closely connected to the lender (the beneficiary). On default, the lender instructs the trustee to foreclose the deed of trust by sale.
What is an Installment Land Contract?
In an installment land contract, an installment purchaser obtains legal title only when the full contract price has been paid of. Forfeiture clauses, allowing the vendor upon default to cancel the contract, retake possession, and retain all money paid, are common.
What is an Absolute Deed and what is the result if given for security purposes?
An absolute deed, if given for security purposes, can be treated by the court as an "equitable" mortgage to be treated as any other mortgage (i.e., a creditor must foreclose by judicial action).
What is a Sale-Leaseback?
A landowner may sell her property for cash and 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.
What are the two Methods of Transferring a Note evidencing a mortgage?
The note may be transferred either by endorsing it and delivering it to the transferee, or by a separate document of assignment.
Which method of note transfer allows one to be a holder in due course?
~ Only if the endorsement and delivery method is used can transferee become a holder in due course.
What requirements are necessary To be a holder in due course on the note?
(3 requirements)
a) The note must be negotiable in form (payable to "bearer" or "to the order of" the named payee, with a promise to pay a sum certain, and no other promises).
b) The original note must be delivered to the transferee.
c) The transferee must take the note in good faith (no notice that it is overdue, has been dishonored, is subject to any defense by the maker) and must pay value for it.
What are the Benefits of being a Holder in Due Course?
A holder in due course takes the note free of any personal defenses of the maker (e.g., failure of consideration, fraud in the inducement, waiver, estoppel, and payment), but is still subject to real defenses (e.g., infancy, other incapacity, duress, illegality, fraud in the execution, forgery, discharge in insolvency, and any other insolvency).
On a Transfer by a Mortgagor, what result for grantee as it relates to the mortgage?
A grantee of mortgaged property takes subject to the mortgage.
What does it mean for the grantee to signs an assumption agreement?
If the grantee signs an assumption agreeement, he becomes primarily liable to the lender, while the original mortgagor is secondarily liable as a surety.
What is a Due-on-Sale Clause?
Due-on-Sale clauses, which appear in most modern mortgages, allow the lender to demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent.
What is The Lien Theory of title?
According to the lien theory, the mortgagee is considered the holder of a security interest only and the mortgagor is deemed the owner of the land until foreclosure.
~ The mortgagee may not have possession before foreclosure.
What is the Title Theory?
Under the title theory, legal title is in the mortgagee until the mortgage has been satisfied or foreclosed, and the mortgagee is entitled to possession upon demand at any time.
When will courts appoint Receiverships?
Most mortgagees attempt to intercept the rents before foreclosure by getting a receiver appointed by the court to manage the property.
~ Courts will generally appoint receivers for rental property upon showing: (i) that waste is occuring; (ii) that the value of the property is inadequate to secure the debt; and (iii) that the mortgagor is insolvent.
What is Redemption in Equity?
At any time prior to the foreclosure sale, the mortgagor may redeem the property by paying the amount due.
~ If the note or mortgage contains an acceleration clause, the full balance of the note or mortgage must be paid to redeem.
~ This right cannot be waived in the mortgage itself.
What is Statutory Redemption?
About half the states allow the mortgagor to redeem the property for some fixed period (e.g., six months) after the foreclosure sale has occurred.
How is a mortgagee's priority determined?
A mortgage's priority is usually determined by the time it was placed on the property.
~ Foreclosure destroys all interests junior to the mortgage being foreclosed, but does not affect any senior interests.
How may the Priority among mortgagees be modified?
Generally, priority among mortgages follows the chronological order in which they were placed on the property.
~ This priority may, however, be changed by:
(i) the operation of the recording statute if a prior mortgagee fails to record;
(ii) a subordination agreement between a senior and junior mortgagee;
(iii) a purchase money mortgage;
(iv) the modification of a senior mortgage (junior mortgage has priority over the modification); or
(v) the granting of optional future advances by a mortgagee with notice of a junior lien (junior has priority over advances).
What is a Purchase Money Mortgage?
A purchase money mortgage ("PMM") is a mortgage given in exchange for funds used to purchase the property.
~ PMMs are given either to the seller as part of the purchase price or to a third-party lender.
What is the status of the priority of PMMs as opposed to non-PMMs?
~ PMMs have priority over non-PMMs executed at about the same time even if the non-PMM was recorded first.
~ As between two PMMs, a seller's mortgage has priority over a third-party's.
~ If there are two third-party PMMs, priority is determined by chronological order. Usually two PMMs have notice of the other's existence; thus, the recording acts are of no use in determining priority.
How are the Proceeds of a foreclosure sale distributed?
Proceeds are applied first to the expenses of the sale, attorneys' fees, and court costs; then to pay the principal and accrued interest on the foreclosed loan; next to pay off any junior interests in the order of their priority; and finally to the mortgagor.
What is the result of a Deficiency Judgment?
Where the proceeds are insufficient to satisfy the mortgage debt, the mortgagee retains a personal cause of action against the mortgagor for the deficiency.
In Installment Land Contracts, how do courts avoid the harsh result that calls for forfeiture rather than foreclosure as the vendor's remedy for default?
(4 main ways)
1. Equity of Redemption -
Several states give the contract purchaser a grace period to pay the accelerated full balance of the contrat and keep the land after default.

2. Restitution
A number of decisions, while granting forfeiture, have required the vendor to refund to the purchaser any amount by which his payments exceed the vendor's damages.

3. Treat as a Mortgage -
thus requiring a judicial foreclosure sale.

4. Waiver -
a vendor's pattern of accepting late payments constitutes a waiver of the right of strict performance.

5. Election of Remedies - The vendor must choose only one remedy (damages or specific performance) and forgo all others.
What is the general rule as to Rights Incidental To Ownership Of Land (Natural Rights)?
An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property.
What is the right to Lateral Support of land?
Ownership of land includes the right to have the land supported in its natural state by adjoining land.
What is the rule on Support of Land in its Natural State?
A landowner is strictly liable if his excavation causes adjacent land to subside (i.e., slip or cave-in)
What is the rule on Support of Land with Buildings?
An adjacent landowner is strictly liable for damage to buildings caused by excavation only if it is shown that the land would have collapsed in its natural state. Otherwise, he is liable for such damage only if his excavation was done negligently.
What is the rule for Subjacent Support of existing buildings and buildings built after the subjacent estate was created?
An underground occupant of land (e.g., a mining company) must support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings requires negligence.
What are the two major systems for determining allocation of water in watercourses?
the riparian doctrine and the prior appropriation doctrine.
What is the Riparian Doctrine?
Under this doctrine, the water belongs to those who own the land bordering the watercourse.
~ Riparian rights attach to all contiguous tracts held by the same owner as long as one abuts the water.
~ Riparian owners can use water only in connection with the riparian parcel.
What is the Natural Flow Theory
Under this theory, a riparian owner's use resulting in substantial or material diminution of the water's quantity, quality, or velocity is enjoinable.
~ Each of the riparian owners have the right to have the lake or stream remain substantially in its natural state (why it's called the natural flow theory); each riparian can use natural or artificial use, so long as quantity and quality are not affected.
What is the Reasonable Use Theory?
Under this theory, which is the most common, all riparians share the right of "reasonable use" of the water (i.e., one owner's use is not enjoinable unless it substantially interferes with the use of other riparian owners).
~ In determining "reasonable" use, courts balance the utility of the owner's use against the gravity of the harm.
~ Six factors are helpful in making this determination: alteration of flow; purpose of use; pollution; extent of use; destination of water taken; and miscellaneous conduct that may give rise to litigation.
Natural vs. Artificial Use - which one prevails?
Under either theory, natural uses (human uses, such as consumption, gardening) prevail over artificial uses (irrigation, manufacturing).
What is the Prior Appropriation Doctrine?
Under this doctrine, individuals acquire rights by actual use.
~ Appropriative rights are determined by priority of beneficial use.
~ If there is a decrease in flow, priority is accorded in terms of time of appropriation.
~ An appropriative right can be lost by abandonment.
~ used in Western states.
~ First in time, first in right - no equality of rights, no reasonable use.
What is the Absolute Ownership Doctrine, applied to ground water?
The owner of overlying land can take all the water she wishes, for any purpose, including export. (Common Law doctrine). This doctrine is followed by about 12 eastern states.
What is the Reasonable Use Doctrine, applied to ground water?
It is like absolute ownership, but exporting is allowed only if it does not harm other owners in the same acquifer; the surface owner has to make reasonable use of the water. About 25 states follow this doctrine.
What is the Correlative Rights Doctrine, applied to ground water?
In California, owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.
What is the Appropriative Rights Doctrine, as applied to ground water?
Priority of use (not ownership of overlying land) is determinative.
~ This doctrine is followed in some western states.
What is the general rule on Surface Water?
A landowner can use surface water (water without a channel that passes over land, such as rainfall, seepage, etc.) within her boundaries for any purpose she desires. Questions on surface water usually concern liability for changing natural flow by dikes, drains, etc.
What is the Natural Flow (Civil Law) Theory, as applied to surface water?
Under this theory, owners cannot alter natural drainage patterns. This rule has been "softened" in most states to allow "reasonable changes."
~ followed by half of the states
What is the Common Enemy Theory, as applied to surface waters?
an owner can take any protective measures to get rid of the water (e.g., dikes). The rule has been modified by many courts to prohibit unnecessary damage to others' lands.
~ followed by most of the other states
What is the Reasonable Use Theory, as applied to surface waters?
This theory, the growing trend, Involves balancing the utility of the use against the gravity of the harm.
What is the general rule relating to Rights in Airspace?
The right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise.
What is Fructis Naturales?
trees, grasses, etc. are viewed as being part of the land; they pass with a conveyance of land;
What is Fructis Industrales?
come from man's industry (crops); they are called emblements (are usually annual crops, but can be perennial), are real property, until they are severed from the land, then they are viewed as being personal property.
What is the rule re a tenant's right to remove?
A tenants right to remove crops ends with the termination of the property interest; if the crops are already severed, they belong to the tenant, if not severed, they belong to the landlord
What is the rule on Tenancy at Wills for the removal of crops?
for a reasonable time after termination of the term, the tenant may sever crops and remove (crops would have to have been planted before notice of termination).
What is a Cooperative?
In a cooperative, title to the land and buildings is held by a corporation that leases individual apartments to its shareholders.
~ Because of their economic interdependence and because the individual owners are regarded as tenants, a direct restraint on the alienation of an individual interest is valid.
What is a condominium?
In a condominium, each owner owns the interior of his individual unit plus an undivided interest in the exterior and common areas.
~ Since condominium unit ownership is treated as fee ownership, the ordinary rules against restraints on alienation apply.
What is the state's zoning power based on; what is it limited by?
~ The zoning power is based on the state's police power and is limited by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the "no taking without just compensation" clause of the Fifth Amendment.
~ The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens.
What is a Nonconforming Use?
A use that exists at the time of passage of a zoning act that does not conform to the statute cannot be eliminated at once.
What is a Special Use Permit?
A special use permit is one that must be obtained even though the zoning is proper for the intended use.
~ It is often required for hospitals, funeral homes, drive-in businesses, etc.
What is a variance?
A variance is a departure from the literal restrictions of a zoning ordinance granted by administrative action.
What is the Standard for determining whether a variance must be granted?
(i) it is unreasonable economically to use the land only for its zoned purpose;
(ii) Unique circumstances of the property owner, not shared by general neighborhood conditions, make the zoning unreasonable;
(iii) the essential character of the neighborhood will not change if the variance is granted.
What is Euclidean Zoning?
a city is separated into regions that are zoned into use districts, typically residential, commercial, or industrial.
What are Unconstitutional Takings and Exactions?
A zoning ordinance may so reduce the value of real property that it constitutes a taking under the Fifth and Fourteenth Amendments.
~ If the ordinance constitutes a taking, the local government must pay damages to the landowner equal to the value reduction.
~ If the ordinance regulates ativity that would be considered a nuisance under common law principles, it will not be a taking even if it leaves the land with no economic value.
What is the result of a Denial of All Economic Value to property?
A regulation that deprives the owner of all economic use of his land constitutes a taking (unless the use was prohibited by nuisance or property law when the owner acquired the property).
What is the result of a Denial of Nearly All Economic Value of land?
If a regulation leaves property with very little economic value, to determine if there was a taking the court will balance:
(i) the social goals of the regulation,
(ii) the diminution in value of the property, and
(iii) the owner's reasonable expectations for use of the property.
What is an Exaction?
Local governments often demand, in exchange for zoning approval for a new project, that the landowner give up some land for a public purpose, such as street widening.
What is the test for when an exaction be unconstitutional?
such demands are unconstitutional under the Fifth and Fourteenth Amendments unless the government proves:
(i) the government demands are rationally connected to an additional burden the project will place on public facilities or rights; and
(ii) the dedication is reasonably related in nature and extent to the impact of the proposed development.
What is the Remedy for a taking?
If a regulation constitutes a taking, the government will be required either to compensate the owner for the property or terminate the regulation and pay the owner damages for the temporary taking.
What is the definition of Tresspass to Land?
the (i) substantial interference (ii) with a right to possession in land, (iii) by a tangible, physical object;
(Act of physical invasion of P's real property, Intent to bring about physical invasion, Causation).
What is Private Nuisance?
Conduct by D that creates an unreasonable, substantial interference with P's use or enjoyment of property.
~ it is caused by deliberate, negligent, or hazardous conduct.