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136 Cards in this Set
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Real property |
Real property is often concerned with the rights and liabilities that arise in respect of immovable property. Immovable property refers to land and thingsunderneath and attached to it, e.g. fixtures, trees, crops, etc. |
right in rem |
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Personal Property |
property that can be moved. Movable property, on the other hand:(1) can lose its identity by destruction; (2) does not have a permanentlocation, i.e. it is not stationary, therefore it can be withdrawn from thejurisdiction of the courts; (3) thus, a dispossessed plaintiff may not berestored to his property; (4) it can be worn out and torn beyond recognition.s |
right in personam |
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Corporeal hereditamrents |
Corporeal property comprises physical objects which can be touched, |
e.g. land, clothes, tables, etc. |
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Incorporeal hereditaments |
has no physical existence; it exists only in the eyes of the law.
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Eg. Loodi Easement |
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inter vivos |
between living people. |
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Fee simple (Freehold) |
A fee simple estate is freely transferrable by inter vivos disposition or by will. The fee simple is the largest estate in terms of duration. It is granted to a man and his heirs and will last as long as the person entitled to it die leaving an heir. |
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Bona vacantia |
vacant goods and is thename given to ownerless property, which by lawpasses to the Crown. |
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Leasehold Interest – Term of years |
This arises where there is a right to possession, use, and enjoyment of a land that has been leased to a man for a definite number of years, for e.g. one month, one year, 21 years, 99 years or any other certain period. |
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Life Estate |
This estate last for the life of the grantee. Where a life interest is sold it will still come to an end on the death of the grantee. A life estate is most times carved out of a fee simple, It gives the holder the right to use and enjoy the rents, profits and income of the property until his or her death, when the estate terminates. |
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pur autre vie |
an estate for the life of another |
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Fee Tail |
This is the only other estate of inheritance. It last as long as the grantee and his direct decendants survive. |
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Estate |
the degree, quantity, nature, or extent of interest which a person has in land or in real property. It is an ownership interest in a physical area of land with a set geographic location. |
For example: a life estate, an easement, a leasehold or fee simple absolute. |
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Tenure |
- landholding of any type; usually implies that the landholder does not have absolute possession but derives the right from some other person. |
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A legal estate or interest |
is one that historicallywas recognized and enforced by the commonlaw courts. |
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property |
subject meatter of ownership |
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res nillius |
things belonging to nobody |
incapable of ownership |
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leashoholds are also called |
chattels real |
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ownership |
right to enjoy an dispose of cgattel |
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possession |
physical power to control the chattel -intention -actual |
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estate |
right to use land _freehold -leasehold |
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tenure |
manner in which persons held their land |
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allinenation |
transfer of land either inter vivos or upon death |
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leasehold vs. freehold |
leasehold arise spout of a contract with a landlord for a specific time. Fixed and definite and freehold arises out of relationship with tenant and feudal lord. uncertain and indefinite |
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3 different estates of freehold |
-life estate -fee tail -feesimple |
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life estate |
lasts no longer than a particular lifetime |
shortest |
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fee tail |
comes to an end when all the descendants have died out |
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fee simple |
no restrictions to whom the land will pass on the death of the present tenant if there is nonbody the estate will end and be vested in the crown |
longest duration |
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reversion vs. remainder |
A reversion is similar to a remainder in that the right to enjoy the land is postponed yo a dfuture date but unlike a remainder the land comes back to the person with the intervening interst "Grantor" |
subject of present ownership |
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common law |
collection of rules laid down by generations of judeges int he king's courts comparatively rigid system. only remedy was the awrd of damages |
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equity |
lord chancellor "Keeper of the King's Conscience" Chancelleors court was a court of conscience mitigate the harshness of common law by recogninzing new rights and creating new remedies -injunction -specific performance |
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injunction |
forbidding him to do something of which the plaintiff complained |
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decree of specific performance |
compel him to carry out some some obligation |
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Trust |
when property is given to a trustee to hold frp the benefit not of himself but of some other person called the "beneficiary" |
court of chancery |
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legal vs. equitable |
equity will prevail |
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common injunction |
prevented the person from going to the common law cpurts, the rules of equity prevailed |
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3 ways in which equitable interests are crteated |
1. express words 2. implication from formality 3. implication from contract |
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express words |
where a trust is created by express words |
T in trust for X |
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implicatin from formality |
common law requires certain formalities to be obserevd before a legal right can be validly created equity looks to the intent rather than the form |
deed |
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implication from a contract |
common law says you can sue fro damamges under breach of contract while equity gives the remdy of specific performance |
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equitable doctrine of notice |
legal right is said to be aright against all the world. (Common) whether he knew of exstence or not An equitable right was only binding on a purchaser of a legal estate if he knew of his existence an equitable right is vakid against everyone except a bona fide purchaser of a legal estate for value w/o notice of the existence of that equitable right |
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bona fide |
in good faith |
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for value |
one who has given money or money's worth for the estate. |
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3 kinds of notice whuch may affect th ourchaser of a legal estate under the equitable doctrine |
1. actual notice 2.constructive notice 3. imputed notice |
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actual notice |
the purchaser himself has knowledge of the existence of the equitable right |
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Constructive notice |
where the purchaser used ordinary dilligence and care in ivestigating the history of the property. he is deemed to have notice of that roght even though he was not actually aware of it himslef. |
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imputed notice |
anyt knowledge of rights which is gained by and agent of the purchaser |
apples to both actual and consrtuctive |
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judicature act |
system of dual courts were brought to an end by this act. However, the rules of law and equity still remin sepearte and distinct |
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powers of enjoyment under the fee simple |
1. rigths of alienation 2. right of enjoying the land as he pleases |
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rights of enjoying land |
1. sunject matter of enjoyment 2. methd of enjoyment |
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subject matter of emjoyment |
enjoys everything on the land beneath it and above it |
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method of enjoyment |
owner can practically do anything he likes with his land but he must always show consideration to others |
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statutes in recent times that have restricted the landowners power of enjoyment such as... |
Town & Country Planning Act Rebt Restriction Act local improvements act Natural Resources Conservation (NRCA) Act |
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natural rigths |
rights that belong to the owner simply because he owns the land. --air --water --support |
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two main types of life interest: |
1. an interest for the life of the tenant himself 2. an interest for the life of someone other than the tenant |
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rights and duties of lfe tenant |
not permitted by common law to treat the land entirely as if ti were his own. use land in such a way as not to do any permanent injury which might affect those entitiled on his death entitled to positive rights (rights to emblements) negative duty |
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waste |
consists of any act or omission which alters the nature of the land 1. Voluntary waste 2. permissive waste |
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Voluntary waste |
any act than alters the nature of the land. good or bad |
opening a mine cutting down timber |
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ameliorating waste |
voluntarty waste that imporves the land. no action will lie for its commision |
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permissive wste |
an omission to do what requires doing to keep the land in proper condition, such as failutre to repair a house |
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wanton acts or extravagant of destruction are said to be.. |
restrained by injunction and ordered to rehabilitate the premises consitute equitable waste |
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setteld land act |
A tenant for life is given wide powers under the act to sell lease or mortgage all or part of the land tenant for life in exercising his powers must have rehard to the interst of all parties entitiled under the settlement and is deemed to be in the position of a trustee. trustee ensures that tenant doesnt act maliciousky or capricioulsly in exercising his rights and powers must give 1 month notice to sell or lease or mortgage |
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fee tail is also refferred as |
estate tail or entailed interest |
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types of entailed interest |
1. general entail/ tail general 2. special entail/ tail special 3. tail male/ tail female |
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general entail |
males have priority over females and the eldest son is prefferred to any other son |
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special entail |
it is restricted to children of a particular wife |
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tail male/ tail female |
restricted to a particular sex |
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leases are often refferd to as... |
term of years |
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two main characteristics of a lease |
-the term gives the lesee exclusive posserssion of the land teased to him -the period to whuch he isd entitle possession must be fixed and definte |
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a lease may be craeted in 2 ways: |
-by a lease (created by deed) -by an agreement for a lease |
legal and equitable |
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in order to be effective, leases and agreements for a lease must comly with all the conditions of a valid... |
contract |
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contract must contain |
1. ID of landlord and tenant parties 2. premises to be leaed (Property) 3. period 4. price (rent) |
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difference between sublease and assignment |
in a sublease, the lessee parts with a part of his sinterest and still retains a reversion for atleast one day while in an assigbnment he patrts with all hi9s rights, retains no reversion and ceases to be a tenant |
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tenanacy at suffereance |
when a person who has held land by a lawful title continues in possession after his toitle has terminated w/o any: -- statutory right to remain in possesion --w/o either the agreement or disagreement of the landlord |
no legal but equitable right |
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tenancy at will |
the tenant is in possesion of tyhe land which is determinable at the will of either the landlord or the tenant. Tenant may or may not be reserved. *occupatio of premises by virtue of employment. eg. company house,*enter into negotitation to buy property*entry on land pending completion of a contract |
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periodic tenancies |
may be a weekly tenancy or a monthly tenancy, or a tenancy for any other continuing period chosen by the parties. |
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tenancy for years |
teency for any period, the commencemnt and duration of which are certain. determines the expiration of the term wiothout the enecessity for giving any notice |
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covenants |
obligations by a party to a lease |
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two types of covenants |
*express *implied |
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Express covenants |
clearly expressed and agreed between partied |
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implied |
implied by law in default of expressed agreements by the paerties |
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ladlord's implied coveenants |
*covenant for quiet enjoyment *Derogation from grant |
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covenant for quiet enjoyment |
teannt will enjoy quiet posssession without physical interruption |
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derogation form grant |
a landlord must not derogate from his grant. he must not subsequently do anything which is inconsistent with th purpose of the letting or to make the use of it difficlut or impossible |
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absolute covenant |
no alteration to the premises |
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qualfiied covenant |
not allowed to alter premises without the landlord's prior permission |
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schedule of dilapidations |
prior to commencemnt of lease the parties look at the and agree in writing the state of repair of the premises |
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frustration |
unforseeable contingencies prevent the attainment of th epurpose of the contracdt intentded by contractiong parties --land is destroyed --house is destoryed due to an intinsic fault |
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a lease can be terminated by: |
1. by effluxion of time- expiration of time 2. by exercise of express power- either party given power to one or either party 3. by disclaimer- tenant becomes bankrupt 4. by merger- the reversion and the lease become vested in the same person (you like it, you buy it) 5. by surrender- when the tenant yields up the term to his immediate reversioner 6. by notice to quit - only in periodic tenency 7. by forfeiture - eviction |
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types of annexation: |
-direct (gate posts) -indirect (gate) -constuctive (constructive) |
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test whether a chattel being on the land is a fixture or not |
true teste relate to the : -degree of annexation -object and purpose of annexation |
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3 exceptions to fixtures |
- trade fixtures -agricultural fixtures -domestic and ornamental fixtures |
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trade fixtures |
if the chattel has been affixed for the purpose of trade, the tenant is entitled to move it |
eg. machinerypumping aparatus at a petrol station |
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agricultuaral fixtures |
tenants operation could include a greenhouse, whuch he can remove at end of tenancy |
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domestic and decorative fixtures |
aesthetics and utility |
tapestry. mirrors |
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underlease |
sublease |
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distinction between several and concurrent ownership |
land may be the subject of seevral, that is, separate ownership or of co-wonership |
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2 maion types of concurrent intersts: |
joint tenancy amd tenancy in common |
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tenancy in common |
tenants are intenede to take distinct and separate shares - with words of severance -where on joint tenant disposes of his interest to a tenant -where one joint tenant acquire a larger than his fellow joint tenant |
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joint tenncy |
seen as one int he eyues of the law without words of severance |
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2 important characteristics of a joint tenancy |
--four unities --right of survivorship |
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4 unities |
-unity of possession- each teant is entitled to possesion of the land and of the while land -unity of interst- eacyht enent must have an interest in the land of the same nature and extent -unity of title- all the joint tenants must have erived their title to the land from the same deed or other document - un ity of time- each njoint tenants interest must have started at the same point in time |
UOP also in tencies in common |
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right of survivorship |
on the death of onr joint tenant , his interest in the land passes to the other joint tenant by the right of survivorship |
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determination of joint tenancy may be effected by |
- alienation by 1 join tenant -acquisition by one joint tenant of a greater interest than held by his co-tenants -partition -sale of entire land -union in one tenant of all the shares of his co-tenants |
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characteristics of tenancy in common |
-there is no right ot survivirship -the only unity is the unity of possession |
tenants in common are said to hold undivided shares |
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tenancy in common interest may be determined by |
-partition -union in one tenant of all the shares of his co-tenants -sale of the entire land |
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two mai types of incorporeal hereditaments |
-easements -profits profits gives its owner the right to take something capable of ownership from the land of another; whiule an easement gives an owner no such right |
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servient land |
land over which right is ernmjoyed |
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dominant land |
land which receives the benefit |
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easements |
a privileg without a profit acquired by a landowner for the benefit of his land over the land of another who is bound to submit to the enjoyment of that privilege |
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characteristics of an easement |
1. must be a dominant and servient tenement- burden/ benefit 2. easement must accommodate the dominant tenement 3.dominant and servient tenements must be in different hands 4. right must be capabkle of forming subject matter of grant- if the right is too vague, uncertai or indefinable to have frmed the subject matter of a deed, it cannot be an easement |
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rules of "right must be capable of forming subject matter of grant" |
1. the right must be within the general nature of rigths capable of being created as easements- way, light, support, water 2. the right must be sufficiently definite 3. there must be a capable grantor 4. there must be a capable grantee |
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miscellaneous easements |
right to run telephone or electricty lines or to lay pipes |
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profit a pendre |
right to enter upon the land of another and to take thereform something of legal value -usually reffered to as a profit things taken: --must be a part of the land --at the of taking, be susceptible to ownership |
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3 ways to create an easement |
1. acquitistion by implied grant 2. acquisition by express grant 3. the prescription Act 1882 |
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acquisition by express grant |
express grant by deed (simplest way) |
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acquitistion by implied grant |
derived from nor derogation from grant 1. a lanndownwer must not do anything yo make use of what he ahs granted difficult or impossible or less valuable to the grantee 2. easements of necwessity- ways and support 3. easements of support |
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person who subdivides must... |
provide access |
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quasi-easements |
a person who owns the land may be int he habit of exercising over part of it, a right which would be an easement if that part was owned by someone else sucha right can not be a true easemnt because there is noe separate ownership |
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the prescription act |
act attempted to make the matter of a long continued enjoyment of a right more simple by providing for fixed periods of enjoyment, upon proof of which a claimant should be entitled to rely on the validity of his easemnt or profit -20 years of uniterrupted enjoyment -computation of time shall be deemed andtaken to be the period before some action or suit |
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quality of prescriptive enjoyment |
1. the enjoyment of a privilege must be as of rught 2. enjoyment must be Nec vi, Nec clam, Nec precario- not by forve, not b y stealth, not by consent 3. basis of prescription is acquiscence 4. if right is enjoyed by force, stealth or consent then it can reasonably be explained on some other basis than as an easement 5. every enjoyment must be as of right before an easement is presumed 6. periods next before action-gives a clain=m to an easement or profit 7. courts will not entertain application brought merely to esatblish claim |
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easement and profits may be extinguiushed by: |
1. express release 2. implied. release unity of ownership |
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licenses |
permission to enter upon the land of another for an agreed purpose |
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bare or gratuitous license |
mere permission to enter upon licenosrs land no estate or interest is conveyed permission may be withdrawn by licensor at any time, w/ reasonable notice |
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restrictive covenants |
contract between 2 owners of land wherby one undertakes to restrict in some way the use of his land for the benefit of the other |
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scheme of development |
where land is developed as in the case of a building scheme, the developer can require that the purchaser of any plot shall enter into a restrictive covenant so as to maintain the character of the estate |
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codicil |
supplememt to a will and it effects some altertation to the original will |
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a will must |
1. be in writing 2. signed by the testator at the foot of the will 3. attested to in the presence of two witnesses |
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the cardinal rule of construction of a will |
to ascertain the tesators intention an dgive effect to that intention court has power to call evidence |
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lapse |
if the ebenficiary dies before the testator will may contain provisons as to what should occur if this happens |
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general gift in will |
gifts to witnesse in a will are void |
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revocation of a will |
*subsequent marriage of testator *later will *destruction- act of destruction and intention to revoke |
a will that is revoked cannot be revived |
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categories of intestatcy |
-- survive spouse of the deceased --children of deceased and issue of any child who died before the deceased --the father and the mother of the deceased --brothers and sisters of the while blood and the issue of any deceased brother or sister of the while blood who died before the deceased |
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executors |
named person in will to act a s trsutee |
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adminiatrators |
person appointed by court to deal with decease's affairs where there is no will, or will does not appoint an executor person with greatest interest |
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probate |
this is where a will exists a gran tof probate is issued to the executor which gives hum authority to deal with the estate |
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letters of administration |
where there is no will the court grants letter sof administartors to deal with the estate |
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