Real Property--Misc.

Front 1

Restrictive Covenants: Types

Back 1

(1) covenant at law

(2) equitable Servitude

Front 2

Distinction--Covenants at Law vs. Equitable Servitudes

Back 2

Exact same, except how to enforce:

(1) CAL = enforced at law (allows money damages)

(2) ES = enforced in equity (allows injunction)

Front 3

Mnemonic--4 Requirements to Enforce Covenant at Law

(i.e., for covenant to run with land)

Back 3

INTP

Front 4

INTP (Covenant at Law)

Back 4

I: Intent that covenant run with land

N: Notice to party to be charged *

T: Covenant must touch and concern land

P: Privity

*DANE: Notice only required for burden to run

Front 5

Privity Requirement for Covenant to Run

Back 5

always need vertical privity, but only need horizontal privity in order for burden to run against successor-in-interest.

Front 6

Horizontal Privity--Definition

Back 6

at time of creation, original parties to covenant shared some mutual interest in land

Front 7

Vertical Privity--Definition

Back 7

successor-in-interest must take entire estate from original party

Front 8

Privity Summary

Back 8

Depends which party successor-in-interest is:

(1) plaintiff = benefit must run (only need vertical privity)

(2) defendant = burden must run (need both horizontal and vertical privity)

Front 9

Mnemonic--4 Requirements to Enforce an Equitable Servitude

Back 9

INT...no P

Front 10

INT...no P

(equitable servitudes)

Back 10

Intent, notice, touch and concern...no privity

Front 11

Three Types of Notice

Back 11

A: Actual

I: Inquiry

R: Record

Front 12

Actual Notice

Back 12

Literal knowledge

Front 13

Inquiry Notice

Back 13

constructive notice as to what reasonable inspection of property would have revealed

Front 14

Record Notice

Back 14

constructive notice as to what is revealed in direct chain of title

Front 15

Equitable Servitudes: Defenses to Enforcement

Mnemonic:

Back 15

A-CLUE

Front 16

Equitable Servitudes: Defenses to Enforcement (A-CLUE)

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A: acquiescence in violation of servitude by another burdened party;

C: changed conditions: neighborhood changed so significantly that enforcement inequitable.

L: laches: failure to sue in reasonable time

U: unclean hands: person seeking enforcement is violating similar restriction on own land;

E: estoppel: party acted such that reasonable person thinks covenant abandoned or waived;

Front 17

Covenant at Law: Definition

Back 17

written promise to do (or not do) something on land, which runs with land at law

Front 18

Covenants at Law: Termination

Back 18

(1) written release

(2) merger of benefitted and burdened estates

(3) condemnation of burdened property

Front 19

Equitable Servitudes: Definition

Back 19

promise, usually in written, to do or not do something on land, which equity will enforce

Front 20

Equitable Servitudes: Creation

Back 20

writing generally required to satisfy SOF, except negative equitable servitudes may be implied from common scheme for development of residential subdivision

Front 21

Equitable Servitudes: Termination

Back 21

(1) written release

(2) merger of benefitted and burdened estates

(3) condemnation of burdened property

Front 22

Mnemonic--6 Elements of Adverse Possession

Back 22

CHEASO

Front 23

CHEASO (6 elements of adverse possession)

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C: Continuous (uninterrupted)

H: Hostile (adverse)

E: Exclusive

A: Actual

S: Statutory period

O: Open and notorious (visible)

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Continuous Possession

Back 24

Uninterrupted possession such that usual owner would make throughout statutory period

EXCEPTION: Tacking

Front 25

Hostile (Adverse) Possession

Back 25

Being on property with no right to be there.

Front 26

Exclusive Possession

Back 26

Not sharing property with true owner or public.

Front 27

Actual Possession--Definition

Back 27

generally, must actually possess land

*two exceptions

Front 28

Open and Notorious (visible) Possession

Back 28

Kind of use that usual owner would make AND sufficiently apparent to put true owner on notice.

Front 29

Actual Possession--Two Exceptions

Back 29

(1) Constructive AP

(2) Leasing land to someone else qualifies as possession for AP purposes

Front 30

Adverse Possession--Statutory Period

Back 30

Common law = 20 years

Michigan = 15 years

Front 31

Constructive Adverse Possession

Back 31

Adverse possessor who (i) actually occupies part of parcel (ii) under color of title to entire parcel gets title to entire parcel IF:

(1) amount actually possessed bears reasonable relation to whole (not just small part); and

(2) parcel is unitary--i.e., seamless whole

Front 32

Color of Title--Definition

Back 32

document that purports to give title but does not actually do so.

(aka "bad title")

Front 33

Is adverse possession against co-tenants possible?

Back 33

Yes, but only if possessor excludes other co-tenant(s) from possession.

(e.g., ouster or explicit declaration of exclusive dominion)

Front 34

Is adverse possession against future interest holder possible?

Back 34

Yes, but not until interest becomes possessory

(e.g., FI possessory when life estate ends (life tenant dies))

Front 35

Adverse Possession--When does clock start to run?

(1) Co-tenant (concurrent owners):

(2) Life estate FI holder:

(3) FSD FI holder:

(4) FSSCS FI holder:

Back 35

(1) at time of exclusion--not mere absence of co-tenant

(2) when life estate ends--i.e., life tenant dies

(3) when condition occurs--reversion to grantor automatic

(4) when grantor exercises right of entry--not merely when condition occurs

Front 36

Does clock stop if true owner is disabled?

Back 36

Yes, BUT:

(1) Only if disability existed when AP starts, AND

(2) Only until owner free of that disability--i.e., no tacking of later disabilities

Front 37

Is adverse possession of government land possible?

Back 37

No

Front 38

Is "tacking" of periods permissible?

(1) Periods of adverse possession:

(2) Periods of true ownership:

Back 38

(1) Yes, but periods must pass directly from one adverse possessor to another--no gaps.

(2) Yes.

Front 39

Right to Support of Land--Definition

Back 39

Landowner has right to: (1) lateral and (2) subjacent support of land.

Front 40

Lateral Support--COA

Back 40

adjoining landowner strictly liable for failure to support adjoining land,

*including damage to buildings on land if land would have collapsed in natural state (i.e., without buildings on land)

Front 41

Subjacent Support--COA

Back 41

Subjacent (underground) estate (e.g., mineral rights holder) strictly liable for failure to support surface of land,

...including damage to buildings on surface if existed when subjacent estate created

Front 42

Water Rights: Streams, Rivers, and Lakes

Two separate legal systems:

Back 42

(1) riparian doctrine (majority)

(2) prior appropriation doctrine (minority)

Front 43

Riparian Doctrine

Back 43

(1) water belongs to those who own land bordering watercourse (riparians)

(2) riparians share right of reasonable use of water--e.g., must not be unduly exploitive or commit waste

Front 44

Prior Appropriation Doctrine

Back 44

Initially, water belongs to state, but anyone can acquire right to use water by putting to some beneficial or productive use

Right to use based on priority--first in time, first in right--and is protected from those who come later, as long use continues

Front 45

Statute of Frauds: K for Sale of Land

Requirements:

Back 45

(1) in writing;

(2) signed by party to be charged; and

(3) contains essential terms: parties, description of land, price.

Front 46

Easements: Creation (Methods)

Back 46

(1) express grant or reservation

(2) implication

(3) prescription

Front 47

Easements: Statute of Frauds

Back 47

express easements typically subject to SOF (must be in writing and signed by holder of servient tenement), whereas easements by implication and prescription do not

Front 48

Easements: Implication

Two types:

Back 48

(1) easement implied from existing use

(2) easement by necessity

Front 49

Easements: Implied from Existing Use (elements)

Back 49

(1) apparent and continuous use;

(2) occurred prior to division of single tract;

(3) reasonably necessary for enjoyment; and

(4) parties intended use to continue after division of land.

Front 50

Easements: Termination (Ways)

Back 50

(1) stated conditions

(2) unity of ownership (merger)

(3) written release

(4) abandonment (=intent + physical action)

(5) estoppel

(6) prescription (=interrupt use for stat'y period)

(7) end of necessity

(8) condemnation

Front 51

Profits: Termination (Ways)

Back 51

(1) same as easements; AND

(2) surcharge

Front 52

Profits: Surcharge

Back 52

misuse that overly burdens servient estate

Front 53

Deeds: Formalities

Back 53

(1) in writing

(2) signed by grantor

(3) reasonably identifies parties and land

Front 54

General Warranty Deed: Covenants

Back 54

(1) covenant of seisin

(2) covenant of right to convey

(3) covenant against encumbrances

(4) covenant for quiet enjoyment

(5) covenant of warranty

(6) covenant for further assurances

Front 55

covenant of seisin

Back 55

grantor covenants that he has estate he purports to convey

*requires title and possession at time of grant

Front 56

covenant of right to convey

Back 56

grantor covenants that he has authority to make grant

*requires title

Front 57

covenant against encumbrances

Back 57

grantor covenants against existence of physical or title encumbrances

Front 58

covenant of quiet enjoyment

Back 58

grantor covenants that grantee will not be disturbed in possession by third party's lawful claim of title

Front 59

covenant of warranty

Back 59

grantor agrees to:

(1) defend against reasonable claims of title by third party; and

(2) compensate grantee for any loss sustained by claim of superior title.

Front 60

covenant for further assurances

Back 60

grantor promises to perform acts reasonably necessary to perfect title conveyed.

Front 61

Statutory Special Warranty Deed: Definition

Back 61

arises if type of deed not specified, and creates two limited assurances by implication:

(1) grantor has not conveyed same estate or any interest therein to anyone else; and

(2) estate free from encumbrances made by grantor

Front 62

quitclaim deed

Back 62

gives whatever interest grantor has

Front 63

Foreclosure: Redemption in Equity

Back 63

at any time prior to foreclosure sale, mortgagor may redeem property by paying amount due

Front 64

Riparian Doctrine

Back 64

water belongs to those who own land bordering watercourse

Front 65

Prior Appropriation Doctrine

Back 65

individuals acquire rights by priority of actual beneficial use

Front 66

Surface Waters: Capture

Back 66

landowner can use for any purpose

Front 67

Surface Waters: Diversion

Natural Flow Theory:

Back 67

owners cannot alter natural drainage patterns

Front 68

Surface Waters: Diversion

Common Enemy Theory:

Back 68

owners can take protective measures to get rid of surface water

Front 69

Surface Waters: Diversion

Reasonable Use Theory:

Back 69

balances utility of use vs. gravity of harm

Front 70

Takings Clause: Zoning Regulations

General rule:

Back 70

(1) if results in deprivation of all economically viable use of land, regulation amounts to taking

(2) if results in deprivation of nearly all economic value, court applies balancing test to determine whether taking occurred

Front 71

Takings Clause: Zoning Regulations

Denial of nearly all economic value--Balancing Test:

Back 71

To determine if there was a taking, court will balance:

(1) social goals of regulation;

(2) diminution in value of property; and

(3) whether regulation substantially interferes with distinct, investment-backed expectations of owner.

Front 72

Exactions: Definition

Back 72

gov't demands something from landowner in exchange for zoning approval for new project

Front 73

Exactions: Constitutionality

Back 73

unconstitutional unless gov't proves:

(1) essential nexus--i.e., rationally connected to additional burden project will place on public facilities or rights

(2) rough proportionality--reasonably related in nature and extent to impact of proposed development

Front 74

Lien Theory vs. Title Theory: Which does Michigan follow?

Back 74

lien theory

Front 75

MI Statute of Limitations Periods

(1) easement by prescription:

(2) adverse possession:

Back 75

(1) adverse use for 15 years

(2) adverse possession for 15 years*

*Exceptions: if entered under color of title by:

(1) tax deed = 10 years

(2) court decree = 5 years

Front 76

MI Doctrine of Equitable Conversion: Risk of Loss

Back 76

MI has adopted the Uniform Vendor and Purchaser Risk Act:

--> risk of loss on seller

Front 77

Deeds: Formalities

Michigan:

Back 77

(1) executed in presence of two witnesses, who both sign deed; and

(2) acknowledged before any judge, clerk, or notary public.

Front 78

Estoppel by Deed

Michigan refers to doctrine as:

Back 78

doctrine of after acquired title

Front 79

Michigan Recording Act (Type)

Back 79

race-notice

Front 80

MI Marketable Title Act: Search Cut-off Date

Back 80

40-year unbroken chain of title of record to interest in land = deemed to have marketable record title

Exception: not applicable if land in hostile possession of another

Front 81

MI Inquiry Notice (Constructive Notice)

Test:

Back 81

whether person has knowledge of such facts that would lead any honest man, using ordinary care, to make further inquiries regarding possible rights of another in real estate

Front 82

MI Transfer of Mortgage Without Note

Back 82

transfer of mortgage without accompanying note = void

Front 83

Foreclosure: Michigan

Michigan provides for foreclosure by:

Back 83

(1) advertisement; and

(2) action of circuit court.

Front 84

MI Statutory Redemption: Time

Back 84

(1) foreclosure by action = 6 months from time of sale

(2) foreclosure by advertisement = 1-12 months, depending on type of property mortgaged

Front 85

MI Foreclosure: Deficiency Judgments (Procedure)

(1) foreclosure by action:

(2) foreclosure by advertisement:

Back 85

(1) issued by court clerk on application of P's attorney, without notice to D or D's attorney

(2) requires subsequent adjudication to determine personal liability on debt

Front 86

MI Equity of Redemption: Installment Land Contracts

Back 86

foreclosure action dismissed if D pays principal and interest, with costs, before judgment of sale