Real Property- Essay

Front 1

Checklist

Back 1

I. Classify and Validate the Interest
-A: ownership interest
-B: non-possesory interest
II. State the Characteristics of the Interest
III. State any Limitations to the interest
IV. Conveyancing Issues
V. Remedies

Front 2

3 ways to transfer an interest (3 types)...

Back 2

devisable: can it pass by will

descendible: will is pass by statutes of intestacy if its holder dies intestate (without a will)

alienable: is it transferable inter vivos (during the holder's lifetime)

Front 3

Fee Simple Absolute (ex, def, characteristics)

Back 3

“To A and his heirs ...”

"absolute ownership with indefinite duration"

Characteristics: devisable, descendible and alienable.

Front 4

Fee Simple Determinable (ex, def, characteristics, future interest?)

Back 4

“To A for so long as ... or during ... or until ..."

"terminates upon happening of stated event and automatically reverts to grantor"

Characteristics: devisable, descendible and alienable.

Grantor retains a possibility of reverter (remember it is automatic)

Front 5

Fee simple subject to condition subsequent (ex, def, characteristics, future interest?)

Back 5

“To A, upon condition that ... or provided that ... or but if ... or “if it happens that ...”

"can be terminated
by grantor upon happening of a stated event."

Characteristics: devisable, descendible and alienable.

Grantor retains a right of entry or termination.

Front 6

Fee simple subject to executory limitation (ex, def, characteristics, future interest?)

Back 6

“To A but if stated event happens, to B”

terminates upon happening of stated event then passes to third party.

Characteristics: devisable, descendible and alienable.

Termination is automatic and future interest in third party

Front 7

Life estates- Life of grantee (ex, def, characteristics)

Back 7

“To A for life ...”

measured by the life of one or more persons.

Characteristics:
a) Creates reversion in grantor or remainder or executory interest in third party.
b) Life tenant entitled to ordinary uses but cannot commit waste

Front 8

Life estate- pur autre vie

Back 8

“To A for life of B ...”

measured by life other than grantee.

Characteristics (same as normal life estate):
a) Creates reversion in grantor or remainder or executory interest in third party.
b) Life tenant entitled to ordinary uses but cannot commit waste (below).

Front 9

Waste (3 types)

Back 9

1) Affirmative or voluntary waste – actual overt conduct that decreases value of estate.

2) Permissive waste or neglect – failure to protect or preserve land.

3) Ameliorative waste – change that economically benefits property.

Front 10

FUTURE INTERESTS - in grantor (3 types)

Back 10

1. Possibility of reverter – follows fee simple determinable.

2. Right of entry – power to terminate follows a fee simple subject to condition subsequent.

3. Reversion – resulting interest when grantor transfers an estate lesser than s/he had.

Front 11

FUTURE INTERESTS- in grantee or third person (3 types)

Back 11

1. Vested Remainder
2. Contingent Remainder
3. Executory Interest

Front 12

VESTED REMAINDERS...

Vested Remainder Definition

Vested Remainder subject to complete defeasance

Vested Remainder subject to open

Back 12

Vested Remainder: i) created in an ascertained person and ii) not subject to a condition precedent

Vested Remainder subject to complete defeasance - remainderman’s interest could be cut short by condition subsequent.

Vested Remainder subject to open – remainder’s interest subject to diminution because additional, unascertained person(s) can qualify as class member.

Front 13

CONTINGENT REMAINDERS...

Contingent Remainder Definition

Rule of Destructibility of Contingent Remainders

Merger Rule

Doctrine of Worthier Title

Back 13

Def: created in i) unascertained person or ii) subject to condition precedent, iii) or both

Rule of Destructibility of Contingent Remainders – destroy
condition remainder because gap between preceding and succeeding interest caused by existence of condition precedent.

Merger Rule – destroy contingent remainder when one person acquires all present and future interests except contingent remainder.


Doctrine of Worthier Title – remainder in grantor’s heirs becomes reversion in grantor.

Front 14

Executory interests (2 Types)

Back 14

Shifting executory interest – third person’s interest cuts
short an interest in another person.

Springing executory interest – third person’s interest cuts
short an interest in the grantor or his heirs.

Front 15

Rule against Perpetuities (RAP)- Definition

Back 15

certain future interests are void
if there is any possibility that the interest may vest more than 21 years after the death of a measuring life.

Front 16

RULE AGAINST PERPETUITIES-- Rules...

Fertile Octogenarian

Unborn widow

Class gifts

Charities

Back 16

Fertile octogenarian – presumption that a person is fertile
no matter his or her age.

Unborn widow – person’s widow is not determined until
death so a disposition to the issue of the widow violates
RAP .

Class gifts – if interest of any class member may vest too
remotely, whole class gift fails.

Charities – gift from one charity to another will not violate
RAP .

Front 17

CONCURRENT ESTATES (3 types)

Back 17

1. Joint Tenancy
2. Tenancy in Common
3. Tenancy by the Entirety

Front 18

JOINT TENANCY

Creation

Death of One Tenant

Transferability

Termination

Back 18

Creation at common law requires four unities – time, title, interest and possession + clear expression of right of survivorship.

When one co-tenant dies, his or her interest automatically passes to the surviving joint tenant(s).

Interest is transferable but not devisable or descendible.

Termination
1) Severance by inter vivos sale or conveyance.
2) Partition – voluntary, partition in kind and forced sale.

Front 19

TENANCY IN COMMON

Ownership

Transferability

Presumption

Back 19

Each co-tenant owns an individual part, with the right to possess the whole.

Interest is descendible, devisable, and transferable and no right of survivorship.

Presumption favors tenancy in common.

Front 20

TENANCY BY THE ENTIRETY

Who can create?

Special Protections?

Back 20

Marital estate that can only be created between married partners who share right of survivorship.

Special protections include creditors of one spouse cannot reach the tenancy and a unilateral conveyance by one is invalid.

Front 21

Rights and Duties of Co-tenants (applies to - Joint Tenancy, Tenancy in Common, Tenancy by the Entirety)

Possession:

Profits:

Taxes & Mortgage:

Repairs:

Improvements:

Waste:

Back 21

Possession – each co-tenant has right to possess the whole but no
right to exclusive possession of any part.

Co-tenant in possession has right to retain profits from own use of the property.
1) Must share net from third party rent.
2) Must share net from net profits from exploitation of the
land.

Each co-tenant responsible for fair share of taxes or mortgage
interest payments.

Co-tenant who repairs is entitled to contribution for any reasonably
necessary repairs, so long as she has given notice.

Co-tenant who has made improvements has no affirmative right to
contribution unless there is a partition.

Co-tenant must not commit waste.

Front 22

Types of Leasehold (4 Types)

Back 22

1. Tenancy for years – lease for a fixed, determined period of time; requires written lease; ends automatically at termination date and notice is not required.

2. Periodic tenancy – lease that continues for successive periods until termination by proper notice by either party; created by express agreement, implication or operation of law.
-T who wrongfully stayed on past the conclusion of the original lease, and implied periodic tenancy arises measured by the way rent is tendered

3. Tenancy at will – lease for no fixed period of duration and terminable at will of either landlord or tenant; requires express agreement that lease can be terminated at any time.

4. Tenancy at sufferance - hold-over doctrine. tenancy after a lease has expired, but before the landlord has demanded that the tenant quit (vacate) the premises.
i. When T has wrongfully held over past the expiration of the lease.
ii. Allows L to recover rent
iii. Lasts only until (1) L evicts T or (2) elects to hold T to a new tenancy.

Front 23

Tenants Duties (2 major duties) and liability to 3rd parties

Back 23

1. Duty to Repair: tenant must maintain premises and make ordinary repairs (in reasonably good repair).

2. Duty to pay rent

Liability: tenant is liable to third parties even where land lord has expressly promised to make repairs (When invitees sue T → T always looses)

Front 24

Tenant's Duty to Repair:

Waste:

Destruction:

Fixtures:

Back 24

IF LEASE IS SILENT ON REPAIR...

Waste – T must not commit waste (voluntary, permissive, or ameliorative)

Destruction of premises without fault and not resulting in waste:
1) Neither party must restore
2) tenant has duty to pay rent (Statute or case law may [does] give tenant option to terminate lease)

Fixtures – chattel that has been so affixed to land that it is no longer personal property.
a) Fixtures pass with ownership.
b) Tenant may remove if it does not cause substantial harm to premises.

Front 25

Tenant's Duty to Pay Rent...

If Tenant Breaches Duty AND is in Possession (doesn't leave):

If Tenant is not in Possession:

Back 25

If Tenant Breaches Duty AND is in Possession (doesn't leave): landlord can only evict through the courts (no self help), continue relationship and sue for rent due.

If Tenant is not in Possession, landlord may:
1) treat tenant's abandonment as surrender;
2) ignore abandonment and hold tenant responsible for unpaid rent, or
3) re-let on breach tenant's behalf and sue tenant for deficiency

Front 26

Landlords Duties (4 duties)

Back 26

1. Duty to deliver possession at beginning of term
2. Duty not to retaliatorily evict: may not terminate lease or otherwise penalize tenant for exercising his rights (i.e.- repairs)
3. Implied Covenant of Quiet Enjoyment
4. Implied Warranty of Habitability

Front 27

Implied Covenant of Quiet Enjoyment (def, 3 types)

Back 27

Def: tenant entitled to quiet enjoyment, without landlord interference.

1) Actual eviction – landlord excludes tenant from entire
premises and tenant does not have to pay rent.

2) Partial eviction – landlord excludes tenant from part of
leased premises and tenant does not have to pay rent.

3) Constructive eviction – landlord’s conduct causes premises
to be uninhabitable.
a) Tenant must vacate within a reasonable time.
b) Tenant can terminate lease and sue for damages (if vacated).

Front 28

Implied Warranty of Habitability (def, T rights)

Back 28

residential premises must be fit for human habitation- bear living requirements. look to local housing code (non-waivable)

T rights:
1) Tenant may vacate and terminate lease.
2) Tenant may make reasonable repairs and deduct costs.
3) Tenant may reduce or withhold rent.
4) Tenant may remain in possession, pay rent and seek
damages.

Front 29

Landlord's Tort Liability

Back 29

Common law – landlord had no duty to make premises safe.

Modern law – landlord liable for:
a) COMMON AREAS,
b) LATENT DEFECTS must warn T of hidden defects of which L has knowledge or reason to know. Duty to warn, NOT duty to repair,
c) ASSUMPTION OF REPAIRS,
d) PUBLIC USE: L who leases public spaces (such as a convention hall) and who should know, because of the nature of the defect and the length of the lease, that T will not repair, is liable for defects on the premises., or
e) DEFECTS in a SHORT-TERM lease of furnished dwelling.

Front 30

Assignments (def, liability, privity)

Back 30

Definition: absent an express restriction in the lease, tenant
transfers entire leasehold interest.

Liability:
- Assignee and landlord liable to each other for covenants that run with the land.
- Landlord and assignor will be secondarily liable to each other.

Privity
- Assignee stands in shoes of tenant in relationship with landlord (privity of estate).
- Assignor (original tenant) and landlord are no longer in
privity of estate but remain in privity of contract.

Front 31

Sublease

Def

Privity

Payment liability

Back 31

Definition – absent an express restriction in the lease, tenant
transfers less than the entire leasehold interest.

Privity:
- Sublessee and landlord are not in privity of estate or contract.
- Sublessor (original tenant) and landlord remain in privity.

Payment: Sublessee pays rent to Sublessor, and landlord may
terminate main lease for nonpayment of rent.

Front 32

Assignment TIP

Back 32

Tip: If there has been an assignment, then follow this issue up with a brief discussion of covenants that run with land. In order for LL to be able to enforce the covenants against T and vice versa, he needs to show that the covenants run with the land from assignor to assignee or landlord 1 to landlord 2.

Front 33

ADVERSE POSSESSION

Definition

Types

Mental State

Tacking

disabiilties

Back 33

Def: If owner does not, within statutory period, take action to eject possessor who claims adversely to owner, title vests in possessor.

Types: squatter and boundaries (encroachment)

Intent: Possessor’s subjective state of mind is irrelevant.

Tacking: permitted if there is privity
(Tacking: one adverse possessor may tack on to his time with the land his predecessors’ time so long as there is privity which is satisfied by any non-hostile nexus such as blood, contract, deed, or will)


Disabilities – statutory period will not begin to run if true owner was
under some disability to sue when cause of action first accrued – infancy, insanity and imprisonment.

Front 34

Adverse Possession Requirements

Back 34

Requirements - COAH

Continuous – uninterrupted for statutory period.

Open and Notorious – visible occupation of land to afford true
owner notice and use as the owner would make.

Actual – actual physical entry on to premises.

Hostile – entry without owner’s permission.

Front 35

Easement (Def, Types)

Back 35

Grant of NON-POSSESORY interest that entitles holder to USE or ENJOYMENT of another's land

Affirmative: entitles its holder to go onto and DO SOMETHING on another’s land, called the servant tenement

Negative Easement: entitles its holder to PREVENT the servient landowner from doing something that would otherwise be permissible.

Front 36

Easement appurtenant vs. in gross

Back 36

Easement appurtenant (2 lands) – benefits holder in his physical use or
enjoyment of another tract of land.
1) Dominant tenement - benefited estate by easement.
2) Servient tenement - estate subject to easement right

Easement in gross (1 land) – holder acquires right to use servient tenement independent of possession of another tract of land

Front 37

Affirmative Easement: Creation

Back 37

Created by: PING

Prescription – AP: remember COAH

Implication – if previous use was apparent, and the parties expected the use would SURVIVE DIVISION because the easement is reasonably necessary to the dominant land’s use and enjoyment.

Necessity – LANDLOCKED setting – where grantor conveys a portion of his land with no way out, except over some part of the grantor’s remaining land.
- Majority= reasonable necessity
- Minority= strict necessity

Grant – requires a DEED of an easement to be in WRITING & SIGNED by the holder of the servient tenement

Front 38

Negative Easement (creation and categories)

Back 38

creation: Can only be created EXPRESSLY, by WRITING signed by the grantor

categories:
Only 4 categories – LASS – light, air, support, or stream of water from an artificial flow (a minority of states, including California, also allow negative easements for scenic views).

Front 39

Termination of Easement (8 ways to terminate)

Back 39

1. estoppel
2. necessity
3. destruction
4. condemnation
5. release
6. abandonment
7. merger
8. prescription

Front 40

Termination of Easement Definitions

1. estoppel
2. necessity
3. destruction
4. condemnation
5. release
6. abandonment
7. merger
8. prescription

Back 40

a. Estoppel – servient owner materially changes position in
reasonable reliance on easement holder’s assurances that easement
will no longer be enforced.

b. Necessity – Easements by necessity end when necessity ends
unless created by express grant.

c. Destruction of servient land unless willful.

d. Condemnation – condemnation of servient estate by eminent
domain.

e. Release – writing given by easement holder to servient holder.

f. Abandonment – holder demonstrates by physical action, an intent
to permanently cease use.

g. Merger – titles to easement and servient tenement vested in same
person.

h. Prescription – adverse, continuous interruption or use for
prescription period.

Front 41

LICENSE

Def

Creation

Termination

Back 41

def: "mere privilege to enter another's land for a narrow purpose"

Creation:
-statute of frauds does not apply
-if easement fails assume it becomes a license

Termination:
-revocable unless estoppel applies

Front 42

Profit

Back 42

holder (of this non-possesory interest) may enter the servant tenement and take mineral, soil or other resources

(this is akin to easements)

Front 43

Covenant (def, types, like easement?)

Back 43

def: "written promise (a contractual limitation) to do or not to do something related to land"

Types:
Affirmative covenant: promise to do something with the land- promise to paint common fence.

Negative (restrictive covenant): promise not to build for commercial purposes

It is UNLIKE the easement b/c it is NOT the grant of property interest, but rather a contractual limitation or promise regarding land

Front 44

For the BURDEN to run with the land...

Back 44

For the Burden to Run: Tip: WITCH NV

1) Writing – original promise in writing.

2) Intent – original parties must have intended to bind
successors.

3) Touch and Concern – covenant must relate to the use and
enjoyment of land.

4) Horizontal and Vertical Privity
a) Horizontal – original covenanting parties were in a relationship independent of the covenant.
b) Vertical – non-hostile connection between promisor and successor established by contract, blood relation or devise.

5) Notice – actual, inquiry or record notice.

Front 45

For a Benefit to run

Back 45

For the Benefit to run: WITV

1) Writing
2) Intent
3) Touch and Concern
4) Vertical Privity

Front 46

Covenant: termination and remedy

Back 46

termination:
a. Written Release
b. Merger of benefitted and burdened estates
c. Condemnation of burdened property

Remedy: money damages ONLY; Real Covenants = Real Cash

Front 47

Equitable Servitude (Def, Creation, remedy)

Back 47

Def: promise that equity (injunctive relief) will enforce against successor of burdened land who has notice

Creation: WITNESS
a. Writing
b. Intent
c. Touch and Concern
d. Notice
Equitable
Servitude

Remedy: injunction/equitable remedy
(unlike a covenant where $$ is awarded)

Front 48

Implied Equitable Servitude

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Changed Conditions

Back 48

Implied equitable servitude (AKA--general or common scheme doctrine): an implied equitable servitude will hold an unrestricted lot holder to a restrictive covenant if:

i. When the sale began, the subdivider had a GENERAL SCHEME of residential development which included the purchaser’s lot

ii. The lotholder had NOTICE of the promise contained in the prior deeds - AI~R
A- Actual notice: D had literal knowledge of the promise in the prior deed
I- Inquiry notice: the neighborhood conforms to the common scheme.
~R- Recorded notice: public recorded documents (note: split re whether this is actually notice)

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Changed Conditions: conditions so pervasive that neighborhood charter change prevents enforcement of equitable servitude

Front 49

SUPPORT (2 types, discuss liability)

Back 49

Lateral Support
a. Support of land in natural state – strict liability.
b. Support of land with buildings – strict liability if would have
collapsed in natural state; otherwise negligence.
--If a neighbor's excavation or excessive extraction of underground liquid deposits (i.e. crude oil or aquifers) causes subsidence (e.g. causing the landowner's land to cave in), the neighbor will be subject to strict liability in a tort action.

Subjacent Support
a. Underground occupant must support surface and buildings existing
on date subjacent estate was created-- strict liablity
b. Liability for subsequently erected buildings requires negligence.

Front 50

Eminent Domain (def)

Back 50

Definition: Fifth Amendment power to take private property for public use for just compensation.

"Just compensation" -- If owner succeeds with implicit taking claim,
government must either compensate owner or terminate the regulation and pay damages.

Front 51

Eminent Domain (2 types of takings)

Back 51

Takings:

1. Explicit – government condemnation

2. Implicit or regulatory – private claim that government regulation
has effect of a taking.
a) Categorical taking of all economic value.
b) Reasonable return test – no taking if owner left with
reasonable return on investment.
c) Diminution in value test – taking if no reasonable return on
investment.

Front 52

Zoning (def, variance, non-performance)

Back 52

def- "State power to reasonably control land use for health, safety and welfare"

Variance is permission to depart from zoning.
a. Area variance requires undue hardship and that variance will not
diminish property values.
b. Use variance requires special circumstances.

Nonconforming use cannot be eliminated at once unless just compensation (is req).

Front 53

2 Steps to Land Conveyance

Back 53

1. The land contract, which endures until Step 2 (which is a binding contract)

2. The closing, where the deed becomes our operative document

Front 54

LAND SALE CONTRACT (validity, part performance)

Back 54

Needs basic K validity requirements...

The standard - satisfy the statute of frauds
i. Must be in writing
ii. Signed by the party to be bound
iii. It must describe the land, and
iv. State some consideration.

Exception to the SofF – the doctrine of part performance – if on your facts, you have (2/3), specific performance will decree an oral contract for the sale of land.
a) if buyer takes physical possession
b) if buyer pays all or substantially part of price
c) if buyer makes substantial improvements

Front 55

The problem of risk of loss

Back 55

"Equity regards as done what is (ought to be) done – equitable conversion", thus:
--once the (land sale) contract is signed, B is owner of the land, subject of course to the condition that he pay the purchase price at the closing

*Destruction*: if in the interim between contract and closing, the property is destroyed through no fault of either party, the buyer bares the risk of loss unless the K says otherwise.

Front 56

Marketable Title (def, 5 problems)

Back 56

def- every (land sale) contract contains implied warranty that seller will provide marketable title at closing.

a. Defects in record chain of title – title may be unmarketable
because of defect in chain of title

b. Adverse possession – title acquired by adverse possession is
unmarketable.

c. Future interests – held by unborn or unascertained persons is
unmarketable.

d. Encumbrances – mortgages, liens, easements, restrictive covenants
render title unmarketable unless buyer waives.

e. Zoning restrictions – existing violation of zoning ordinance renders title unmarketable.

Front 57

Seller's Liability For Defective Property (2 possibilities)

Back 57

1. Warranty of fitness or quality – none except sale of new house.

2. Liability for defects – seller can be liable for defects on theories of
misrepresentation, active concealment, and failure to disclose.

Front 58

Deeds (def, formalities, deliveries, acceptance)

Back 58

def- at closing the controlling document becomes the DEED, which passes legal title from seller to buyer.

Formalities:
i) writing,
ii) signed by grantor,
iii) which reasonably identifies
iv) parties and land

Delivery:
a. must show grantor’s INTENTION to make deed PRESENTLY EFFECTIVE even if possession is postponed.
b. Delivery satisfied by manual delivery, notarized acknowledgment by grantor, recording or anything else showing grantor’s intent.

Acceptance: acceptance by grantee is REQUIRED

Front 59

Types of Deed (3) and Estoppel by Deed

Back 59

1) Quitclaim deed- contains no covenants

2) General Warranty Deed- warrants against all defects

3) Statutory Special Warranty Deed: 2 promises
1. Grantor promises that he has not conveyed this estate to anyone else
2. Grantor promises that the estate is free from encumbrances

Estoppel by deed: subsequent acquisition of property by grantor inures to benefit grantee, except against BFP

Front 60

General Warranty Deed (present covenants & future covenants, 6 covenants)

Back 60

Present covenants
1) covenant of seisin – grantor has the estate he purports to convey.
2) covenant of right to convey – grantor has authority to make
grant.
3) covenant against encumbrances – grantor warrants there are
no servitudes or mortgages.

Future covenants
1) covenant for quiet enjoyment – grantor promises grantee will not be disturbed by third party.
2) covenant of warranty – grantor agrees to defend and to compensate grantee against claim of superior title.
3) covenant for further assurances – grantor agrees to act reasonably to perfect title.

Front 61

Recording Statutes (3 types)

Back 61

a. Notice – subsequent BFP prevails over prior grantee who fails to record.

b. Race-notice – subsequent BFP protected only if he records before the prior grantee.

c. Race – whoever records first wins.

Front 62

Recording Statutes and BFP

Back 62

To succeed the BFP must be a purchaser without NOTICE

Types of notice: AIR
- Actual notice: knowledge gained from any source
- Record or Constructive Notice: recorded conveyances in chain of title (presumed to have notice of this)
- Inquiry notice: required to make reasonable inquiry and charged with knowledge of whatever inquiry would have revealed

Front 63

Mortgages (def, parties)

Back 63

Def: Conveyance of security interest in land, intended by parties to be collateral for repayment of monetary obligation. On default, lender can realize on mortgaged real estate by foreclosure.

Parties
a. Mortgagor = debtor (one taking the money)
b. Mortgagee = lender (one giving money)

Front 64

Mortgage Redemption (when)

Back 64

a. In equity – at any time prior to foreclosure sale, MORTGAGOR can redeem property by paying amount due.

b. Statutory – Half states allow redemption for a period after foreclosure sale

Front 65

Mortgage Foreclosure -chronological priority

Back 65

Priorities usually determined by chronological time it was placed
on property (this is the default)

1) Foreclosure does not destroy senior interests (they keep their interest in the land)
2) Foreclosure generally destroys all junior interests except if junior interest holder is not included in foreclosure action (must include the junior's as def in the lawsuit else they keep their interest in the land)

Front 66

Mortgage Foreclosure - non chronological priority (5 ways)

Back 66

1) By operation of recording statute if prior mortgagee FAILS TO RECORD,

2) SUBORDINATION AGREEMENT between senior and junior mortgagee,

3) PURCHASE MONEY MORTGAGE – mortgage given to secure loan that enables debtor to acquire encumbered land gives mortgagee super priority (loan was used to purchase foreclosed land),

4) MODIFICATION OF SENIOR mortgage, and

5) Optional FUTURE ADVANCES by mortgagee with notice of
junior lien.

Front 67

What to do after foreclosure...

Proceeds of Sale

Deficiency Judgment

Back 67

Proceeds of sale – applied first to expenses of sales, attorney fees, and court costs, then to pay principal and accrued interest on foreclosed loan, next to pay off any other junior interest in order of priority, and finally to mortgagor.

Deficiency judgment – if proceeds are insufficient to satisfy mortgage debt, mortgagee retains personal cause of action against mortgagor for deficiency.

Front 68

Water Rights (3 types)

Back 68

a. Two major systems for determining the allocation of water in water courses (e.g. streams, rivers, and lakes):
1) The Riparian Doctrine: The water belongs to those who own the land bordering the water course
2) The Prior Appropriation Doctrine: The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual regardless of whether or not she happens to be a riparian owner (norm: is first in time, first in right)

b. Groundwater: The surface owner is entitled to make reasonable use of groundwater.

c. Surface water: water that comes from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin.
-The common enemy rule: a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water.

Front 69

Real Property Issues

Back 69

I. Classify the interest and was it valid created
II. State the Characteristics of the interest
III. State any limitations to the interest
IV. Conveyances
V. Remedies

Front 70

I. Classify the interest and was it validly created

Back 70

A. Ownership interest
1. Present Possesory estates
a. Fee Simple absolute
b. Defeasible Fee Simples
c. Life estates
2. Future Estates
a. of the grantor
b. of the grantee
3. Concurrent estates
a. joint tenancy
b. tenancy in common
4. landlord tenant
5. adverse possession

B. Non Possesory interests
1. easement
2. license
3. profit
4. convent running with the land
5. equitable servitude
6. lateral and subjacent support

Front 71

II. State the Characteristics of the interest

Back 71

A. Attributes
B. Rights and Duties

Front 72

III. State any limitations to the interest

Back 72

A. Exceptions or termination
B. Public land use

Front 73

IV. Conveyances

Back 73

A. Contracts for the sale of land
B. Deeds
C. Delivery
D. Title
E. Recording
F. Mortgages

Front 74

Remedies

Back 74

A. Damages
B. Restitution
C. Specific Performance