Real Property

Front 1

Negative Reciprocal Easement

Back 1

Need:
1. General Scheme for development - general pattern of prior restrictions

2. Notice of the covenants: Actual/ Inquiry/ Record

Front 2

Quitclaim Deed

Back 2

transfers whatever right, title, or interest the grantor has/had

Front 3

Delivery - for proper conveyance

Back 3

Refers to grantor's intent - satisfied by words or conduct, that shows grantor intended that the deed have a PRESENT OPERATIVE EFFECT - e.g. pass immediately and irrevocably - grantor must relinquish control

Front 4

a joint tenant mortgages on their interest

Back 4

A mortgage by one joint tenant doesn't in an of itself, sever a joint tenancy until DEFAULT and FORECLOSURE proceedings have been completed. *Bank (mortgagee) loses right if mortgage - tenant dies before foreclosure.

Front 5

Equitable Servitude

Back 5

Where there is no covenant that runs w/ the land enforceable by law, the courts of equity will enforce one under equitable principles

Front 6

Equitable Servitude v. Real Covenants

Back 6

Type of remedy sought will determine which analysis approach to take: (e.g. covenants or equitable servitudes)

Front 7

Equitable Servitude (creation)

Back 7

1) Writing (SoF) - unless it is a neg. equit. servitude

2) Burden to Run - Intended/ Notice (3); touches and concerns

3) Benefit to Run - original parties intended, and touches/concerns the land

**no privity of estate necessary (hor. or vert.)

Front 8

Doctrine of Reciprocal Negative Servitudes

Back 8

Implied if:

1. Common scheme at time of subdivision - evidence: recorded plat, general pattern of restrictions or oral reps

2. Notice - (3)

*applicable only to negative servitudes and restrictive covenants

Front 9

Scope of the easement

Back 9

absence of specific limitations - cannot UNREASONABLY OVERBURDEN the servient estate.

Front 10

Horizontal Privity

Back 10

the promisor and promisee - the two must have shared SOME INTEREST in the land independent of the covenant (grantor-grantee, L-T, mortgagee-mortgagor)

**original parties

Front 11

Vertical Privity

Back 11

the successor in interest to the covenanting party must hold the ENTIRE DURATIONAL INTEREST held by the covenantor at the time he made covenant.

Front 12

Equitable Defenses to Enforcement

Back 12

1. violating own restriction (unclean hands)

2. Benefited party acquiesced in a violation of the servitude by one burdened party

3. benefited party acted in such a way that a reasonable person would believe the covenant was abandoned (estoppel)

4. benefited party fails to bring suit against the violator w/in a reasonable time

5. neighborhood has changed so significantly that enforcement would be inequitable.

Front 13

Termination of EQUITABLE SERVITUDE

Back 13

1. written release from the benefit holders;

2. merger of the benefited and burdened estates, or

3. condemnation of the burdened property

RMC

Front 14

Adverse Possession - Elements

Back 14

1. Actual entry giving exclusive possession,

2. open and notorious

3. adverse, and

4. Continuous throughout stat. period

Front 15

Open and Notorious

Back 15

use is sufficiently apparent to put the owner on NOTICE that a trespass is occurring.

Front 16

Hostile

Back 16

w/out owner's permission

**does not matter whether she believes the land to be her own or knows she is trespassing.

Front 17

Actual and Exclusive

Back 17

part she actually occupies, unless has color of title to the entire parcel. Exclusive - not sharing w/ the owner

Front 18

Continuous

Back 18

continuous throughout stat. period.

**does NOT need to 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.

Front 19

Fixtures

Back 19

Chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty.

**fixture passes w/ the ownership of the land.

Front 20

Implied Promises in land K

Back 20

1) Marketable title at time of closing *free from reasonable doubt - no unreasonable risk of litigation.

2) no false statement of material fact

*seller liable for failure to disclose latent/material defects; and lies and material ommissions

Front 21

Remedy if Title NOT MARKETABLE

Back 21

buyer notify seller of unmarketable title, give reasonable time to cure the defects - if he fails, buyer may rescind, seek specific perf. + abatement; quiet title suit

**after closing, K + deed (merge) no more obligation/liability under implied warranties

Front 22

Neg. Reciprocal Easement/Servitude

Back 22

1) General Scheme for development *general pattern of prior restrictions

2) notice of the covenants (AIR)

Front 23

Reasonable Use Theory

Back 23

Owner can use as much percloating water as he/she wants as long as it is used for beneficial purposes of the overlying land.

*liable if the purpose is malicious or the water is simply wasted

Front 24

Accretion

Back 24

Belongs to riparian owner - accretion is the increase of riparian land by the slow and imperceptible change in course of a river serving as a boundary

Front 25

Tenancy in Common

Back 25

A tenancy in common is a concurrent estate w/ NO right of survivorship.

Each tenant owns a distinct, proportionate, undivided interest in the property

Front 26

Joint Tenancy

Back 26

Created between two or more co-tenants and has the right of survivorship, giving the survivor an undivided right in the property

Front 27

Rents and Profits as joint (co) - tenants

Back 27

Co-tenants have right to retain profits gained by the the use of the property, unless agreement to the contrary.

*but co-tenant out of possession, has right to share rents from 3rd parties

*obligated to pay for any pro-rata share for maintenance/tax/repairs to the land

Front 28

Co-Tenant in possession - entitled to....

Back 28

a co-tenant in possession is entitled to contribution from other co-tenants not in possession for NECESSARY REPAIRS and for MORTGAGES and TAXES on the property.

However, a cotenant in possession is NOT entitled to contribution from his co-tenant for losses suffered from use of his land.

Front 29

Doctrine of Destructibility of Contingent Remainders

Back 29

a contingent remainder had to vest prior to or on termination of the preceding estate or it was destroyed.
*Term. of the estate preceding a contingent remainder prior to vesting destroyed the remainder

Front 30

Alienation: what are the rules/types??

Back 30

Restraints on alienation are void

Types:
1. Disabling
2. Forfeiture
3. Promissory

Absolute restraint of alienation of fee simple are void, but limited/ reasonable purpose restraint is ok.

Front 31

Equitable Servitudes

Back 31

Available where injunction relief is sought.

Regardless of whether it runs w/ the land at law - so long as they have notice, runs w/ successors, if:

1. Original parties so intended, and

2. Touches and concerns the land, and

3. Actual/Construction notice of covenant

*no privity required, b/c no a personal right

Front 32

Doctrine of Worthier Title

Back 32

O to A for life, than to O's heirs

If no DWT: A has a life estate; O's heirs are contingent remainders

If DWT does apply: A life estate, O's heirs are void - O has a reversion

Front 33

Rule in Shelley's Case

Back 33

To A for life, then, on A's death, to A's heirs - A is alive

C/L - present/future interest would merge - A has FS

Today: A has a L/E; unknown heirs are contingent remainders; O has a reversion

Front 34

Remainderman

Back 34

1) Never follows a defeasible fee

2) cannot cut short or divest a prior transferee;

- a f/i for defeasible fee is an executory interest NOT a remainder,

3) usually follows L/E or term of years estate

Front 35

F.I. for Transferees

Back 35

1) Vested remainder

2) Contingent remainder

3) Executory Interest

Front 36

F.I. for Grantors

Back 36

1) Possibility of Reverter

2) Right of Re-entry/ Termination

3) Reversion

Front 37

Life Estate

Back 37

Estate that is not terminable at any fixed or computable time period, but cannot last onger than the life of a particular person

Reversion - O
Remainder - 3rd party

Front 38

Ameliorative Waste

Back 38

Life tenant must not engage in acts that will enhance that property's value, UNLESS: future interests holders are known and consent

*NO unilateral conversion

Front 39

Permissive Waste

Back 39

Land allowed to fall into dis-repair

1) obligation to repair - maintain the premises in reasonably good repair

2) pay taxes, fair market value, and taxes on any profits/ income from land.

Front 40

PURGE - when applicable?

Back 40

Exceptions to vol. waste

1) Prior Use (open mines doctrine)

2) Reasonable Repairs, can consume/exploit for this purpose

3) Grant...expressly granted

4) Exploitation..suitable for exploitation (e.g. quarry)

Front 41

Voluntary / Affirmative Waste - Define/ Exceptions

Back 41

Life tenant must not consume or exploit natural resources on the property (timber, oil, or minerals) unless exceptions (PURGE)

Front 42

3 Types of Waste?

Back 42

1) Voluntary/Affirm. Waste

2) Permissive Waste/ Neglect

3) Ameliorative Waste

**life estates

Front 43

What are distinguishing characteristics of L/E?

Back 43

*doctrine of waste

1) Life tenant is entitled to: all ordinary uses and profits from the land

2) Life tenant must NOT commit waste - not harm future interest holders.

Front 44

What are the two important rules of construction as to defeasible fees?

Back 44

1) words of mere desire, hope, or intention are insufficient to create a defeasible fee?

2) Absolute restraints on alienation are void

Front 45

F.S. subject to Executory Limitation

Back 45

1) "to A, but if X occurs, then to B"

2) automatic forfeiture in favor of someone other than the grantor

3) shifting or springing

Front 46

F.S. Subject to Condition Subsequent

Back 46

1) Clear durational language AND carve out the right to re-enter

2) Grantor has right to cut short/option upon happening stated condition

3) F/I right of re-entry/ power of term.

Front 47

Fee Simple Determinable

Back 47

1) Defeasible fee
2) So long as, during, until
3) clear durational language
4) violation of stated condition = automatic forfeiture
5) Devisable, descendible, alienable
6) Future interest: POR

FSDPOR

Front 48

Race-Notice

Back 48

Subsequent BFP is protected only if she records her interest before the prior grantee does

Front 49

Non-Assignment Clause

Back 49

valid, but they are strictly construed, can refuse to consent - txf may not be void between T and assignee, but L may term. the lease, and seek damages if any.

Front 50

Reversion

Back 50

Future possessor interest at Grantor-O's interest

Front 51

RAP

Back 51

no interest in property is valid unless it MUST VEST, if at all, NOT later than 21 years after one or more lives in being at the creation of the interest

Front 52

Joint Tenancy - Creation rules

Back 52

T-TIP

Same:
1) Time
2) Title
3) Interest
4) Possessory right

Front 53

Marketable Title

Back 53

Free from encumbrances/ interests

"reasonable free from doubt"

*zoning restrictions alone does not affect marketability, but an existing violation of a zoning ordinance does

Front 54

Escrow Txn - Relation-Back Doctrine

Back 54

Title does not pass to the grantee until performance of the specified conditions (e.g. payment of monies)

-deed in escrow - valid conditional delivery
-Relation back - as justice requires, title passes at time of seller placed title in escrow

Front 55

Necessity

Back 55

No access to public road/utility line

Front 56

Easements - by Prescription - elements

Back 56

Need to prove:

1) Continuous w/out interruption
2) Adverse
3) Open and Notorious
4) Hostile
5) Statutory period

*continuous - not constant use, but periodic that owner is on notice of the claimed easement

Front 57

Remainder

Back 57

Future interest, created in a transferee that is capable of taking in possession on the natural term. of the preceding estate.

Front 58

Vested

Back 58

1) Ascertained person

2) no condition precedent

Front 59

Title Theory

Back 59

Title is in the mortgagee (lender) until the mortgage has been satisfied or foreclosed

Thus, mortgagee is entitled to possession on demand at anytime

Front 60

Lien Theory

Back 60

Only a security interest, need to go through foreclosure/judicial proceeding to get title/possession

Front 61

Notice Statute

Back 61

Subsequent BFP (gives valuable consideration and has no notice of the prior instrument) prevails over a prior grantee who failed to record

Front 62

Natural Flow Theory

Back 62

A landowner cannot alter the rate or manner of natural flow of surface waters (rainfall, melting snow) where such actions would injure others above or below him.

Front 63

Termination of Prescriptive Easement

Back 63

Interference (physically) w/ continuous use.

Interference w/ easement to give rise to a cause of action.

Front 64

Express Easement

Back 64

Formalities - writing, signed by grantor/grantee

-Does not need to be recorded
-presumed perpetual duration

Front 65

Drilling Rights

Back 65

A possessor of real property has the exclusive right to the use and possession of the surface, the air above the surface, and the land below the surface (including minerals)