Tsjc - Barbri - Property (Ny And Mbe)

Front 1

Freehold Estates: What are the three species of defeasible fees?

Back 1

Fee simple determinable,

Fee simple subject to condition subsequent,

Fee simple subject to an executory limitation.

Front 2

Freehold Estates: What are 2 important rules of construction as concern the defeasible fees?

Back 2

1. No Precatory language

2. Absolute restraints on alienation are void if not linked to any reasonable time limited purpose

Front 3

Freehold Estates: What are the distinguishing characteristics of the LE? (2)

Back 3

1. LT is entitled to all ordinary uses and profits from the land.

2. LT must not commit waste (anything that hurts the FI holders)

Front 4

Freehold Estates: What are the three species of waste?

Back 4

1. Voluntary or affirmative

2. Permissive, or neglect.

3. Ameliorative: acts that will enhance property's value. can't do unless all of the FI holders are known, and consent.

***NY unless the remaindermen object, LT can make reasonable improvements.***

Front 5

Freehold Estates: What are the exceptions to LT rule on affirmative waste? (4)

Back 5

PURGE:

1. PRIOR USE: prior to the grant, the land was used for exploitation. Open mines

2. Reasonable Repairs. may use natural resources for reasonable repairs and maintenance.

3. Grant: if LT expressly granted that right.

4. Exploitation. The land is suitable only to exploit (quarry)

Front 6

Freehold Estates: What are the only 3 Fis capable of creation in the G?

Back 6

1. Possibility of reverter. Only walks w/ FSD.

2. Right of entry, also known as the power of termination. Accompanies only the FSSCS.

3. Reversion. Safety fallback, the leftover. FI that arises in a G who transfers an estate of lesser quantum than she started with, other than a FSD or a FSSCS.

Front 7

Freehold Estates: What are the FIs held by someone other than G?

Back 7

Must be:

1. Vested Remainder,

2. A contingent remainder,

OR

3. An executory interest

Front 8

Freehold Estates: 3 tasks in assessing future interests in transferees?

Back 8

1. Distinguish the 3 VRs from CRs

2. Distinguish VRs from each other

3. Distinguish all Rs from EIs.

Front 9

Freehold Estates: What is a remainder?

Back 9

1. FI created in Gee

2. capable of becoming possessory upon the expiration of a prior possessory estate

3. created in the same conveyance in which the remainder is created.

***If present estate is a defeasible fee, FI is NEVER a remainder; it's an executory interst if held by someone other than O.

Front 10

Freehold Estates: What is the difference between vested remainders and contingent remainders?

Back 10

A remainder is vested if it is both created in an ascertained person and is not subject to any condition precedent.

A remainder is contingent if it is created in an unascertained person OR is subject to a condition precedent, or both.

***Note: In NY, any FI in a Tee that is subject to a condition precedent is called a remainder subject to a condition precedent.

Front 11

Freehold Estates: What has replaced the abolished rule of destructibility of CRs?

Back 11

In NY and MS, a CR is no longer destroyed if it is still contingent at the time the preceding estate ends.

To A for life, and if B has reached 21, to B. A dies, B only 19. Now, if the CR is still contingent, O or O's heirs will hold the estate subject to B's springing executory interest. Once B reaches 21, B takes.

Front 12

Freehold Estates: What's the rule in Shelley's case?

Back 12

Abolished in NY and almost everywhere else.

A to Life, then, on A's death, to A's heirs.

Today, the conveyance would give A a life estate, and A's as yet unkown heirs have a CR. O has a reversion, since A could die w/o heirs.

Front 13

Freehold Estates: What's the doctrine of worthier title?

Back 13

Majority MS, but abolished in NY.

+ O, who is alive, tries to create a FI in his heirs. O conveys "to A for life, then to O's heirs." If DWT didn't apply, A has LE, and O's heirs have a CR b/c O still living.

Because of DWT, the CR in O's heirs is void. A has a life estate, and O has a reversion.

Note: G's intent controls.

Front 14

Freehold Estates: What are the 3 types of vested remainders?

Back 14

*Note: Only remainders can be vested.*

1. The indefeasibly vested remainder: the holder of an IVR is certain to acquire an estate in the future, w/ no conditions attached.

2. Vested Remainder Subject to Complete Defeasance (VRSCD) Remainderman subject to condition subsequent.

[***NY this remainder called a "remainder vested subject to complete defeasance***]

3. VR Subject to Open (VRSO). Think category/class. Subject to diminution

Front 15

Freehold Estates: What's the difference b/t a condition precedent and a condition subsequent?

Back 15

A CP creates a contingent remainder. A CS creates a VRSCD.

To tell the difference, apply the "comma rule": When conditional language in a transfer follows language that, taken alone and set off by commas, would create a vested remainder, the condition is a condition subsequent, and you have a VRSCD.

Front 16

Freehold Estates: VRSO When is a class open? When is it closed.

Back 16

A class is open if it is possible for others to enter.

A class is closed when its maximum membership has been set. Persons born later are shut out.

Front 17

Freehold Estates: What's the rule of convenience?

Back 17

A class closes whenever any member can demand possession.

Front 18

Freehold Estates: What's an executory interest?

Back 18

FI created in a transferee (3P), not a remainder, takes effect by either cutting short some interest in another person ("shifting") or in the grantor or his heirs ("springing").

1. Shifting executory interest: always follows a defeasible fee and cuts short someone other than the grantor. "To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.

2. Springing executory interest: O conveys: "To A, if and when he marries."

***NY: Contingent remainders and executory interests are called: Remainders subject to a condition precedent.

Front 19

RAP: What's the rule?

Back 19

Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest (or fail to vest) more than 21 years after the death of a measuring life.

APPLIES ONLY TO:

CRs,

Executory Interests,

VRSO,

Options to purchase (most states)

GRANTOR'S INTERESTS ALWAYS SAFE:

Reversions

Possibility of Reverter,

Right of Entry

Front 20

RAP: What's the 4 step technique to assess potential RAP problems?

Back 20

1. Determine which future interests have been created by the conveyance. RAP potentially applies only to CRs, EIs, and certain VRSOs. RAP doesn't apply to any future interest in O the grantor, or to indefeasibly vested Rs, or to VRSCDs.

2. ID the conditions precedent to the vesting of the suspect FI.

3. Find a measuring life. Look for a person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence.

4. Ask: Will we know, w/ certainty, w/in 21 years of the death of our measuring life, if our FI holder(s) can or cannot take? If so, the conveyance is good. If not (if any possibility, however remote, that the CP could or could not occur more than 21 years after the death of a measuring life), the FI is void.

Front 21

RAP: What are 2 bright line rules of CL RAP?

Back 21

1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates the CL RAP. Bad as to one, bad as to all.

2. Many shifting executory interests violate the RAP. An executory interest with no limit on the time within which it must vest violates the RAP.

Front 22

RAP: Does a gift from one charity to another violate the RAP?

Back 22

No.

Front 23

RAP: What's the wait and see doctrine?

Back 23

MS only, NY doesn't follow. Under this majority reform effort, the validity of any suspect FI is determined on the basis of the facts as they now exist, at the conclusion of our measuring life. Eliminates the "what if" or "anything is possible" line of inquiry.

Front 24

RAP: What's the USRAP?

Back 24

Codifies the CL RAP, and in addition, provides for an alternative 90 year vesting period.

Front 25

RAP: What do the wait and see and USRAP reforms embrace?

Back 25

1. The cy pres doctrine: As near as possible. If a given disposition violates the rule, a court may reform it in a way that most closely matches G's intent while complying w/ RAP.
2. The reduction of any offensive age contingency to 21 yrs to allow the transfer to survive.

Front 26

RAP: What's the NY perpetuities reform statute?

Back 26

NY Applies the CL RAP, and has rejected wait and see and cy pres, except for charitable trusts and powers of appointment, Trusts.

1. Under NY PRS, if interest would be invalid b/c it depends on any person's having to get to 21yo+, the age contingency reduced to 21 yrs.

2. The CL fertile octogenarian principle is modified by the NY PRS: presumes woman over 55 can't have a child. Possibility that a person may have a child by adoption is disregarded.

Front 27

Concurrent Estates: What's a JT?

Back 27

2 or more own w/ ROS.

Front 28

Concurrent Estates: What's a TE?

Back 28

A protected marital interest between H and W w/ ROS.

Front 29

Concurrent Estates: What's a TC?

Back 29

2 or more own w/ no ROS.

Front 30

Concurrent Estates: What are the distinguishing characteristics of a JT?

Back 30

1. ROS - when one JT dies his share passes automatically to surviving JT.
2. A JT's interest is alienable. It is not, however, devisible or descendible b/c of ROS. Share is extinguished upon death.

Front 31

Concurrent Estates: What's needed to create a JT?

Back 31

1. The 4 unities, T-TIP (PITT):
(1) Time
(2) Title
(3) Identical equal Interest and
(4) Identical rights to Possess the whole.
2. G must clearly express the ROS.
3. Use of a straw. (1) D convey Blackacre to straw. (2) Straw conveys back to D and P as JT WROS. All 4 unities present.
Note: *NY by statute has dispensed w/ need for straw. OK for D to convey directly to self and P as JT WROS.*

Front 32

Concurrent Estates: How is a JT severed?

Back 32

SPAM, Sale, Partition, And Mortgage:

1. Severance and Sale:

a. JT can sell or tranfer her interest during her lifetime. Can even do so secretly. Disrupts the 4 unities. If more than two JTs in first place, JT remains intact as b/t other non transferring JTs.

2. Severance and partition: A peaceful way to separate.
By voluntary agreement, By partition in kind, or by forced sale

3. Severance and Mortgage

a. Minority Rule: One JT's execution of a mortgage or a lien on his or her share will sever the JTancy as to that now encumbered share only in the minority of states that follow the title theory of mortgages.

b. By contrast, the majority of states follow the lien theory of mortgages, whereby a JT's execution of a mortgage on his or her interest will not sever the JTancy.

***NY follows the lien theory***

Front 33

Concurrent Estates: How is a TE created?

Back 33

Note: NY one of 21 states that recognizes the TE.

1. Can only be created in H and W w/ ROS. In the states that recognize TE, it arises presumptively in any conveyance to H and W unless clearly stated otherwise.

2. CAN'T TOUCH THIS.

a) Creditors: Cs of only 1 spouse can't touch the Tenancy.

***NY - one spouse may mortgage his interest and his Cs may enforce against taht interesty, but only as to the debtor spouse's share. Further, the non-debtor spouse's rights, including the ROS, must not be compromised.***

b) Unilateral conveyance: Neither T, acting alone, can defeat the ROS by unilateral conveyance to 3rd party.

Front 34

Concurrent Estates: What are 3 features to remember about TCs?

Back 34

1. Each co-T owns an individual part, and each has a right to possess in the whole.

2. Each interest is descendible, devisable, and alienable. There are no survival rights b/t TCs.

3. The presumption favors T/Cs b/c of # 2.

Front 35

Concurrent Estates: Rights and duties of Co-Ts?

Back 35

1. Possession: no ouster

2. Rent from co-T in exclusive possession: not liable to others for rent

3. Rent from 3rd parties: leasing Co-T must acct to others for income

+Adverse possession: Unless he has ousted the other co-Ts, one co-T in exclusive possession for the statutory AP period can't acquire title to the exclusion of the others. The hostility element is missing. No hostility, b/c no ouster. Note: Recent NY case - A co-T may acquire full title by AP if he is in exclusive possession for 20 continuous years.

+Implied ouster - imputed presumption of ouster.

5. Carrying costs: pro rata.

6. Repairs: repairing co-T gets contribution from others if notify 1st

7. Improvements: no right to contribution, co-t gets +/- $ depending on change in value as a result of imp

8. Waste: A co-T must not commit waste.

9. Partition: A JT or TC has a right to bring partition action.

Front 36

*Landlord/Tenant Law*: What's a Tenancy (Term) for years?

Back 36

1. It's a lease for a fixed period of time could be 1 day, 2yrs, 50 yrs. When you know the termination date from the start, you have the tenancy for years.

2. Because a term of years states from the outset when it will terminate, no notice is needed to terminate.

3. A ToY greater than 1yr must be in writing to be enforceable. S/F issue.

Front 37

*Landlord/Tenant Law*: What's a Periodic Tenancy (PT)

Back 37

1. A PT is a lease which continues for successive intervals until L or T give proper notice of termination.

2. PT can be created expressly. L conveys to T from month to mont OR yr to yr OR wk to wk. Successive, continuous, open ended.

3. PT can also arise by implication, in any one of 3 ways:

a. Land leased w/ no mention of duration, but provision is made for the payment of rent at set intervals.

b. An oral term of yrs in violation of S/F creates an implied periodic tenancy, measured by the way rent is
tendered.

c. The holdover: In a residential lease, if L elects to holdover a T who has wrongfully stayed on past the conclusion of the original lease, an implied periodic tenancy arises measured by way rent is now tendered. NOTE: ***NY: L who elects to holdover a T creates an implied month-to-month PT, unless otherwise agreed***

4. ***How to create a PT: Notice, usually written, must be given. How much? At CL, at least equal to the length of the period itself unless otherwise agreed***

MS Note: PT must end at the conclusion of a natural lease period.

Front 38

*Landlord/Tenant Law*: What's a Tenancy at Will?

Back 38

It's a tenancy for no fixed period of duration. "To T for so long as L or T desires." Unless parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat the tenancy as an implied PT. TW may be terminated by either party at any time. However, a reasonable demand to quit the premises is usually required (Majority by statute).

***In NY, the L terminating a TW must give a minimum 30 days written notice of termination.***

Front 39

*Landlord/Tenant Law*: What is a Tenancy at Sufferance?

Back 39

TS is created when T has wrongfully held over, past the expiration of the lease. Wrongdoer gets this leasehold estate (TS) to permit L to recover rent. TS lasts only until L either evicts T or elects to hold T to a new tenancy.

***NY: L's acceptance of rent subsequent to the expiration of the term will create an implied month-to-month PT, unless otherwise agreed.***

Front 40

*Landlord/Tenant Law*: What are T's duties?

Back 40

1. T's liability to third parties.
2. T's duty to repair.
3. T's duty to pay rent.

Front 41

*Landlord/Tenant Law*: What is T's liability to 3Ps?

Back 41

Tort law. T responsible for keeping the premises in reasonably good repair. T liable for injuries sustained by 3Ps that T invited, even where L expressly promised to make all repairs.

Front 42

*Landlord/Tenant Law*: What is T's duty to repair?

Back 42

1. T's duty to repair when the lease is silent:
a) maintenance. T must maintain premises and make ordinary repairs.

b) T must not commit waste.

c) The law of fixtures: T MUST NOT REMOVE A FIXTURE, NO MATTER THAT SHE INSTALLED IT. FIXTURES PASS WITH OWNERSHIP OF THE LAND. How to tell when a T installation qualifies as a fixture:

(i) Express agreement between L and T controls.

(ii) In the absence of agreement, T may remove a chattel that she has installed so long as removal doesn't cause or have potential to cause substantial harm to premises. But if use cement, bricks, it's attached.

2. T's duty to repair: Modern majority view: T may terminate the lease if premises destroyed w/o T's fault.

NOTE: In NY, absent T's express undertaking to restore the premises in the event of their destruction, if the premises are destroyed through no fault of T, T may quit premises and surrender possession w/o any further duty to pay rent.

Front 43

*Landlord/Tenant Law*: What is T's duty to pay rent?

Back 43

1. If T breaches this duty and is in possession of the premises: L's only options are to evict through the courts or continue relationship and sue for rent. If the L moves to evict, she is nonetheless entitled to rent from T until T, who is now a TS, vacates.
2. ***L MUST NOT engage in self help.

NY: self help flatly prohibited, entitles T to treble damages.

3. If T breaches duty but is out of posession, remember SIR, Surrender, Ignore, Re-let:

a) Surrender: L treats T's abandonment as an implicit offer of surrender, which L accepts. T shows by words or actions that she wants to give up the lease. If the unexpired term is greater than one year, surrender must be in writing b/c S/F. Writing req surmountable if L sends T letter.

b) Ignore the abandonment and hold T responsible for the unpaid rent just as if T were still there. Only available in minority.

c) Re-let the premises on the wrongdoer T's behalf, and hold him or her liable for any deficiency.

Majority: T must at least try to re-let. This is mitigation.

NOTE: NY generally doesn't require L to mitigate damages when T abandons the premises.

Front 44

*Landlord/Tenant Law*: What are L's duties?

Back 44

1. Duty to deliver posession, majority is physical, minority legal.

2. The implied covenant of quiet enjoyment. Applies to comm and res leases. T has a right to quiet use and enjoyment. 2 ways to breach

a) Breach by actual wrongful eviction.

b) ***Breach by constructive eviction. Far more likely to see.*** T has a claim for constructive eviction if 3 elements are met: SI N G.

Substantial Interference (attributable to L's action or failure to act),

Notice (T must notify L of problem, and L must fail to fix it), and

Goodbye (T must vacate w/in reasonable time after L fails to fix the problem).

[L generally not liable for acts of other Ts w/ 2 eceptions: L must not permit a nuisance on the premises. L must control common areas.]

3. ***The implied warranty of habitability*** Premises must be fit for basic human habitation. Bare living requirements must be met. The appropriate standard may be supplied by local housing codes or independent court conclusion. No heat in winter, lack of plumbing, no running water.

b) T's entitlements when IWH breached. Remember M 3R:

Move (move out and end lease),

Repair (Repair and deduct from future statute, growing trend to allow this by statute),

Reduce (Reduce or withhold rent until court determines FRV, T usually must escrow), Remain (Remain in possession, pay rent, and affirmatively seek money damages).

4. Retaliatory Eviction: If T lawfull reports L for housing code violations, L barred from penalizing T, e.g., raise rent, end lease, harrass T, other reprisals.

Front 45

*Landlord/Tenant Law*: Assignment versus Sublease

Back 45

1. In the absence prohibition in lease, T may freely transfer T's interest in whole (assignment) or in part (sublease). L can prohibit T from assigning/subletting w/o L's prior written approval

2. ***NY DISTINCTION: NY, unless lease provides otherwise, res T may not assign w/o L's written consent. L can unreasonably withhold consent to assign, and T's only remedy is to seek release from lease.

Sublease: T in a res building having four or more units has the right to sublease subject to L's written consent. Consent to sublease cannot be unreasonably withheld.

Front 46

*Landlord/Tenant Law*: Assignment by L

Back 46

T's consent not required. Assignee L and T in privity of estate. Assignee L and T not in privity of K. Original L and T remain in privity of K. Assignee L liable to T on all covenants that run w/ the land. Original L remains liable on all covenants in the lease.

Front 47

*Landlord/Tenant Law*: Assignment by T

Back 47

L's consent may be required by lease. AT and L in privity of estate. AT and L not in privity of K. Original T and L remain in privity of K. AT liable to L on all covenants that run w/ land. Original T remains liable for rent and all other covenants in the lease.

Front 48

*Landlord/Tenant Law*: Sublease by T

Back 48

L's consent may be required by lease. Sublessee and L not in privity of estate. Original T remains in privity of estate w/ L. Sublessee and L are not in privity of K. Original T and L remain in privity of K. Sublessee not personally liable on any covenants in the original lease and cannot enforce L's covenants, EXCEPT: Residential sublessee may be able to enforce IWH against L. Original T remains liable for rent and all other covenants in the lease and can enforce the L's covenants.

Front 49

*Landlord/Tenant Law*: What is L's liability in tort to T?

Back 49

T CLAPS

1. Common areas hallways, stairways, lobbies.

2. Latent defects rule: L must warn T of hidden defects of which L has knowledge or reason to know.

3. Assumption of repairs: L must complete repairs that he voluntarily undertakes w/ reasonable care.

4. Public use rule: L liable for defects that short time T won't fix

5. Short term lease of furnished dwelling: L liable for any defective condition which proximately harms T.

Front 50

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is an easement?

Back 50

grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land.

Unless grant specifically limits the interest, easement is presumed to be of perpetual duration.

Front 51

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the different types of easements?

Back 51

1. Affirmative easements: Most are this. P - I - N - G:

Prescription,

Implication,

Necessity,

Grant.

2. Negative Easements: Can be created only by writing signed by the grantor. Refers to something that another landowner might to do on own land that would restrict any of the following on the other's land:

L - A - S - S,

Light,

Air,

Support, and

Streamwater.

Front 52

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by prescription created?

Back 52

C O A H: use that is Continuous, Open and notorious, Actual under a claim of right, that is Hostile for required statutory period.

NY: 10 years.

Front 53

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by implication created?

Back 53

Implied from existing (prior) use: at time land is severed, a use of one part existed from which it can be inferred that an easement permitting its continuation was intended.

Elements:

1) The previous use was apparent and

2) the parties expected that the use would survive division b/c its use is reasonably necessary to the dominant land's use and enjoyment.

Front 54

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by necessity created?

Back 54

When the division of a tract deprives one lot of means of access out. Landlocked.

Front 55

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an easement by grant created?

Back 55

By a writing signed by a grantor (the holder of the servient tenement), unless its duration is brief enough (1 year or less) to be outside a state's S/F.

Grant must comply w/ all the formal requisites of deed.

Front 56

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the difference b/t an easement appurtenant and an easement in gross?

Back 56

1. appurtenant when it benefits its holder in his physical use or enjoyment of his property. Need 2 plots of land: The dominant tenement which derives the benefit, and the servient land which bears the burden.

2. An easement is in gross if it confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land. The servient land is burdened, but there is no benefited or dominant tenement.

Front 57

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the difference of transferability b/t an easement appurtenant and an easement in gross?

Back 57

1. An easement appurtenant passes automatically w/ the dominant tenement, regardless of whether it is even mentioned in the conveyance.

2. An easement in gross is not transferable unless it is for commercial purposes.

Front 58

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is the scope of an easement set?

Back 58

By terms of grant or condition that created it.

Front 59

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How may an easement be terminated?

Back 59

9 ways: END CRAMPS.

Estoppel, servient owner materially changes her position in reasonable reliance on easement holder's words

NEED ends (except when created by express grant)

DESTRUCTION servient land, except by willful of servient owner

CONDEMNATION of the servient estate by eminent domain,

RELEASE, a written release given by the easement holder to the servient owner,

ABANDONMENT, E holder demonstrates by physical action the intent to never use the easement again (non-use not enough),

MERGER doctrine (AKA unity of ownership), when title to the dominant estate with the easement and title to the servient estate become vested in the same person

PRESCRIPTION, servient owner may extinguish the easement by interfering with it in accordance with the elements of AP through COAH,

STATED condition occurs, where the original express easement grant specified when or under what conditions the easement would terminate .

Hint 59

END CRAMPS

Front 60

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a license?

Back 60

License privileges its holder 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. Personal to the licensee, and therefore inalienable.

Note: a failed attempt to create an easement results in a license, e.g., grantor orally grants an easement for more than one year (neighbor A talking by fence to neighbor B grants easement to B, easement NG b/c S/F, but grantee still has a license (license not subject to S/F).

Front 61

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: When does a license become irrevocable?

Back 61

2 circumstances:

1) Estoppel: If Lee invests substantial $ or labor in reliance on license, Lor estopped from revoking. License becomes an easement by estoppel, which lasts until holder receives sufficient benefit to reimburse him for expenditures.

2) License coupled w/ interest: irrevocable as long as interest lasts, e.g., vendee of a chattel may enter seller's land to remove chattel, FI holder may enter and inspect land for waste.

Front 62

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a profit?

Back 62

Entitle the holder of the benefit to take some resources (soil, timber, fish) form the servient estate. Implied in every profit is an easement entitling benefit holder to enter servient estate and take resources. Profit shares all rules of easements. Profit may be extinguished through surcharge (misuse that overly burdens the servient estate).

Front 63

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is a real covenant?

Back 63

A real covenant is a covenant that runs with the land at law. RC, normally found in a deed, is a written promise to do something on the land (build a fence) or a promise not to do something on the land (not to build a multi-family dwelling). RCs run w/ land at law, which means that subseqent owners may enforce or be burdened by the covenants.

Front 64

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How to know whether to construe the given promise as a covenant or as an equitable servitude?

Back 64

On the basis of the remedy that ∏seeks. When ∏ seeks $ damages, construe as a covenant (at law). When ∏ seeks injunction, construe as an ES (enjoin = equity).

Front 65

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What parlance is used to distinguish the 2 tracts?

Back 65

One tract is burdened by the covenant, and the other tract is benefitted by it. If A promises B that A will not build for commercial purposes on A's property, A's parcel is burdened by the promise, and B's parcel is benefited by it.

Front 66

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the requirements for the burden of an RC to run?

Back 66

6 reqs: [always analyze the burden side first, law makes it harder for the burden to run than for the benefit to run]:

1. Writing - original promise b/t Por and Pee must have been in writing.

2. Intent - covenanting parties must have intended that covenantor's SIIs would be bound by terms of Covenant. Intent usually found in language of conveyance itself.

3. Notice - Under modern recording acts, to be bound by RC, a subsequent PV must have had actual, inquiry, or record notice of the arrangement at the time of the purchase [**b/c notice req arises under rec acts, it will only protect Ps for V**].

4. Horizontal Privity - at time Por entered into covenant w/ Pee, the 2 must have shared some interest in the land independent of the covenant (e.g., Gor-Gee, L-T, Mee-Mor). ***Horizontal privity concerns only the original parties. Even if SIIs are trying to enforce covenant, you must look only to the original covenanting parties to determine horizontal privity***

5. Vertical privity - A and A1 must have some non-hostile nexus to each other, A1 must have become SII through K, devise, descent. Only time VP will be absent is if A1 acquired her interest through AP

6. Touch and Concern - The promise must affect the parties' legal relations as landowners.

Front 67

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are the requirements for the benefit of an RC to run?

Back 67

4 reqs for promisee's SIIs to enforce the covenant:

1. Writing -

2. Intent - Covenanting parties must have intended that the covenantee's SIIs would be able to enforce the covenant.

3. Vertical privity - the benefits of a covenant run to the assignees of the original estate or any lesser estate, i.e., any succeeding possessory estate may enforce the benefit.

4. T&C - the benefit of a covenant touches and concerns the land if the promised performance benefits the covenantee and her successors in their use and enjoyment of the land.

***Horizontal privity not required for the benefit to run. Thus, where HP is lacking, Pee's SIIs can enforce the covenant against the Por, but not against Por's SIIs***

Front 68

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are some specific examples involving real covenants that run with the land?

Back 68

Negative Cs T&C land if they restrict holder of the servient estate in his use of that parcel of land, i.e., covenant not to compete.

Affirmative Cs T&C land if they require holder of servient estate to do something, which increases his obligation in connection w/ his enjoyment of the land, i.e., promise to homeowner's association fees.

Front 69

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What remedies are available for breach of real covenant?

Back 69

Damages only. See above question RE: difference in real covenant and equitable servitude.

Front 70

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How may a real covenant be terminated?

Back 70

similar to other nonpossessory interests:

(i) a written release,

(ii) the merger of the benefited and burdened estates, or

(iii) the condemnation of the burdened property.

Front 71

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is an equitable servitude?

Back 71

ES is a covenant that equity will enforce against the assignees of the burdened land who have notice of the covenant, regardless of whether it runs w/ the land or at law. Usual remedy is an injunction.

Front 72

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: How is an ES created?

Back 72

WITNES:

1. Writing - generally but not always required that original promise was in writing. May arise by implication from common scheme of development of a residential subdivision.

2. Intent - Original parties intended that promise would be enforceable by and against assignees (for both burden and benefit).

3. T&C - Promise affects parties as landowners, of and pertaining to Blackacre (for both burden and benefit).

4. Notice - Assignees of burdened land had notice of the promise (for burden only).

NOTE: PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS.

Front 73

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What is the implied equitable servitude?

Back 73

The general/common scheme doctrine: court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant.

Elements:

1. When the sales began, subdivider A had a general scheme of residential development, which included ∆'s lot.

2. ∆ lotholder B had notice of that promise contained in the prior deeds. Three forms of notice imputed to ∆, A I R:

A: Actual notice, meaning D had literal knowledge of promises in prior deeds.

I: Inquiry notice, meaning neighborhood seems to conform to the common restriction. Lay of the land.

R: Record notice, meaning the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents. I and R are forms of constructive notice.

NOTE: W/ respect to record notice, courts are split. Some take the view that subsequent buyer is on record notice of contents of prior deeds transferred to others by a common Gor.

NY: subsequent buyer doesn't have record notice of the contents of those prior deeds transferred by common Gor.

Front 74

Rights In The Land Of Another -- Easements, Profits, Covenants, and Servitudes: What are equitable defenses to the enforcement of an ES?

Back 74

1. *Changed conditions: changed circumstances alleged by the party seeking release from the terms of an ES must be so pervasive that the entire area/subdivision has changed. Limited or piecemeal change is never enough.*

2. Unclean hands

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

4. Estoppel: A benefited party acted in such a way that a reasonable person would believe the covenant was abandoned.

5. Laches.

Front 75

Adverse possession: What is it

Back 75

Possession for a statutorily prescribed period of time, can if certain elements are met ripen into title:
Elements
COAH

+ Continuous uninterrupted possession for a given statutory period. (NY 10yr)

+ Actual

+Hostile

+Hostile

Note: Possessor's subjective state of mind irrelevant

Front 76

Adverse possession: What is tacking?

Back 76

One AP may tack on to his time w/ the land his predecessor's time, so long as privity exists (any non hostile nexus, blood, K, deed, will.

Tacking not allowed when there has been an ouster

Front 77

Adverse possession: What disabilities toll AP?

Back 77

S/L will not run against true owner afflicted by disability at start of AP period. Insanity, infancy imprisonment.

Front 78

Land conveyancing: Purchase and Sale of Real Estate: 2 step process to convey RE?

Back 78

1. Land K which endures until step 2.

Executory period

2. Closing, where deed becomes operative doc.

Front 79

Land conveyancing: Purchase and Sale of Real Estate: What's the standard for a land K?

Back 79

Land K must be in writing signed by party against whom enforcement sought - D. Msut describe the land and have a statement of consideration.

Front 80

Land conveyancing: Purchase and Sale of Real Estate: What happens when the land recited in the K is more than actual size of parcel?

Back 80

Specific perf w/ a pro-rata reduction in purchase price commensurate w/ deficiency.

Front 81

Land conveyancing: Purchase and Sale of Real Estate: One exception to S/F?

Back 81

Part perf: If on facts, you have 2 of the following 3, doctrine is satisfied and equity will decree Spec Perf of an oral K for sale of land:

1. B takes physical possession

2. B pays all/part of purch price.

3. B makes substantial improvements to land.

Front 82

Land conveyancing: Purchase and Sale of Real Estate: How is risk of loss handled?

Back 82

MS: Equity regards as done that which ought to be done. Once K signed, B equitable owner of land, subject of course to condition that he pay purch price at closing.

IF in interim b/t K and closing, land destroyed thru no fault of either party, B bears ROL, unless K says otherwise.

Note: NY, so long as B w/o fault, ROL remains with S until B has title or possession.

Front 83

Land conveyancing: Purchase and Sale of Real Estate: 2 implied promises in every land K?

Back 83

1. S promises to provide marketable title at closing. Marketable title = title free from reasonable doubt, free from lawsuits or threats of lawsuits

2. S promises not to make any false statements of material fact.

Front 84

Land conveyancing: Purchase and Sale of Real Estate: What 3 circs will render title unmarketable

Back 84

1. AP: If even a part of title rests on AP, it is unmarketable. S must be able to provide good record title.

2. Encumbrances: Marketable title means an unencumbered fee simple. Servitudes and mortgages render title unmarketable, unless B has waived them. But, S has right to satisfy an outstanding mortgage or lien at closing w/ proceeds from sale.

3. Zoning violations: Title is unmarketable if B-acre violates a zoning ordinance.

Front 85

Land conveyancing: Purchase and Sale of Real Estate: Besides false statements of material fact, what else is S liable for?

Back 85

1. Majority also holds S liable for failure to disclose latent material defects. S liable for material lies and material ommissions.

2. If K contains general disclaimer of liability (property sold as is or w/ all faults) this won't excuse S from liability for fraud or failure to disclose.

Front 86

Land conveyancing: Purchase and Sale of Real Estate: What is the common law norm for fitness?

Back 86

Caveat emptor: Land K contains no implied warranties of fitness or habitability.

Exception: IWF and Workmanlike constructin applies to sale of a new home by a builder-vendor.

Front 87

Land conveyancing: Purchase and Sale of Real Estate: What is the controlling doc at closing?

Back 87

The deed.

Front 88

Land conveyancing: Purchase and Sale of Real Estate: How does a deed pass legal title from S to B?

Back 88

LEAD: Lawfully Executed And Delivered

1. Lawful execution of deed: must be in writing signed by G. Deed need not recite consideration, nor must cons pass to make a deed valid. Land description doesn't have to be perfect, just unambiguous and a good lead as to where it is.

2. Delivery:

(i) Req satisfied when G phsyically or manually transfers deed to Gee. OK to use mail or agent or messenger.

(ii) But delivery doesn't require transfer of instrument itself. Standard is legal, present intent: Did G have present intent to be immediately bound irrespective of whether or not deed has been literally handed over.

(iii) Express rejection of deed defeats delivery. "Lavish gift"

(iv) If deed absolute on face, transferred to Gee w/ oral condition, oral condition drops out. Not provable.

(v) Delivery by escrow OK. G may deliver executed deed to 3P, escrow A, w/ instructions that deed be delivered once certain condition met. Once condition met: title passes automatically. Advantage: If G dead/insane/unavailable: title will still pass from E A to Gee once condition met.

Front 89

Land conveyancing: Purchase and Sale of Real Estate: Covenants for title 3 types of deed?

Back 89

1. Quitclaim: X-fers whatever right, title or interest in the property that the Grantor has. Contains no covenants. G not even promising title to convey. Wost deed. But a G D does provide in land K (implied or not) a promise to provide marketable title at closign. Any problems after closing, S off hook under quitclaim.

2. General Warranty: Best deed B could get. GW warrants against all defects in title, including those attributable to G's predecessor. G has Gee's back

3. Statutory Special Warranty Deed: Many states. Deed contains 2 promises that G makes only on behalf of himself (not on behalf of predecessors in interest like in GW deed): 1. G hasn't conveyed same estate to any one other than Gee. 2. Estate free from encumbrances made by G. NY - called bargain and sale deed.

Front 90

Recording System: 2 brightline rules?

Back 90

1. If B BFP, and we are in a notice jurisdiction, B wins, regardless of whether or not she records before A does.

2. If B BFP and in a race notice jurisdiction, B wins if she records before A. Note: NY race-notice jurisdiction.

Front 91

Recording System: Who do recording acts protect?

Back 91

Only BFPs and Mortgagees.

BFP = A purchaser for value w/o notice that someone else got there 1st.

Bargain basement sale OK.

Rec statutes don't protect donee's heirs or devisees unless shelter rule applies.

Front 92

Recording System: 3 forms of notice?

Back 92

AIR:

Actual: Prior to B's closing, B gets literal knowledge of A's existence

Inquiry: A form of constructive notice. Whether he looks or not, B on notice of whatever a routine examination of property or recorded instruments would show.

Record: Another form of constructive notice. B on record notice of A's deed if at time B takes A's deed was properly recorded w/in chain of title.

Front 93

Recording System: Notice Statute?

Back 93

"A conveyance of an interest in land shall not be valid against subsequent purchaser for value, without notice thereof, unless conveyance is recorded."

O >> A, then O>>B. If at time B takes, he is a BFP, he wins, no matter that A may ultimately record first.

Front 94

Recording System: Race Notice Statute?

Back 94

"Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is FIRST recorded (or recorded first)."

O>>A, then O>>B. To win, B must be a BFP AND B must win the race to record.

Front 95

Recording System: When will a B's status as a subsequent BFP be defeated?

Back 95

In either jurisdiction, A's proper recordation of deed places later buyers on record notice, defeating their BFP status.

Front 96

Recording System: How to give proper record notice?

Back 96

Deed must be recorded within the chain of title, that sequence of recorded docs capable of giving record notice. Most states, chain established through a title search of G/Gee index.

Front 97

Recording System: Shelter rule?

Back 97

One who takes from a BFP will prevail against any entity that that BFP transferor would have prevailed against. X-feree takes shelter in the transferor's BFP status

O>>A, A does not record.

Later, O>>B, who records.

B>>C, who is a mere donee (not a PV) or who even has actual knowledge of O>>A transfer.

In contest of A vs C, C wins in both notice and race-notice statute, b/c of shelter rule. C stepped into shoes of B, who was a BFP who recorded first.

Front 98

Recording System: Wild deed?

Back 98

If a deed entered on the records (A>>B) has a G unconnected to the chain of title (O>>A), it's a wild deed incapable of giving record notice of its existence.

O>>A, A doesn't record.

A>>B. B records.

O>>C, who has no actual or inquiry knowledge of O>>A or A>>B. C Records.

In contest of B vs C, C wins, in both notice and race-notice state. C wins in a notice state b/c at time C takes she is a BFP. C wins in a race-notice state b/c she is a BFP 1st to record. B's recording = nullity.

Front 99

Recording System: Estoppel by deed?

Back 99

One who conveys realty in which she has no interest is estopped from denying the validity of that conveyance if she later acquires the previously transferred interest.

1950: O thinks about selling Blackacre to X, doesn't.

1950: X[who doesn't own Blackacre]>>A. A records.

1960: O>>X. X records.

1970: X>>B. B records.

Because of EBD, as between X and A, A owned Blackacre from 1960-1969.

B owns Blackacre in 1970, so if BFP, B wins in notice system. B wins in a race-notice system because he is BFP who 1st records. Why? A's 1950 recording is a nullity. A recorded too early. B's title search would not have pulled up A's deed, b/c OK to assume that no one sells land until they first own it. B's title search wouldn't discover X's 1950 pre-ownership X-fer to A. A could have corrected defect.

Front 100

Mortgages: How to create one?

Back 100

Mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for repayment of a monetary obligation.

Union of 2 elements:
1. A debt.
2. A voluntary transfer of a security interest in debtor's land to secure that debt.
Debtor = mortgagor. Creditor = mortgagee (gee i hope he pays me)

Front 101

Mortgages: What's a legal mortgage?

Back 101

Mortgage in writing to satisfy S/F. Evidence by a writing. Terms: The mortgage deed, the note, security interest in land, a deed in trust, a sale lease-back.

Front 102

Mortgages: What's an equitable mortgage?

Back 102

O owns Blackacre. C lends O sum of money. Parties understand that Blackacre is collateral for the debt. But instead of executing a notr or mortgage deed, O hands C a deed to Blackacre that is absolute on its face. Equitable Mortgage. As b/t O and C, PE admissible to shwo parties' true intent.

Front 103

Mortgages: What are the parties' rights once mortgage created?

Back 103

Unless and until foreclosure, debtor-mortgagor has title and the right to possession. Creditor-mortgagee has a lien.

Front 104

Mortgages: Transferability of parties' interests?

Back 104

All parties to a mortgage can transfer interests. Mortgage automatically follows a properly transferred note.

Creditor-mortgagee can transfer interest by

(1) Indorsing the note and delivering it to transferee or

(2) Executing a separate document of assignment.

***If note endorsed and delivered, transferee is eligible to become HDC***

If Debtor-mortgagor sells Blackacre, which is now mortgaged, lien remains on the land so long as the mortgage instrument has been properly recorded. In appropriate circumstances, recording statutes protect mortgagees.

Front 105

Mortgages: Do recording statutes apply to mortgages as well as deeds?

Back 105

Yes. A subsequent buyer takes subject to a properly recorded lien. Doesn’t matter in what jurisdiction.

Front 106

Mortgages: Who is liable on debt if O, debtor-mortgagor, sells Blackacre to B?

Back 106

If B has "assumed the mortgage" both O and B are personally liable. B is primarily liable. O remains secondarily liable.

But if B takes "subject to mortgage," B assumes no personal liability, only O is personally liable. But, if recorded, the mortgage remains on the land. So if O doesn't pay, mortgage may be foreclosed.

Front 107

Mortgages: What is foreclosure?

Back 107

If a mortgagee-creditor must look to land for satisfaction, mortgage must foreclose by proper judicial proceeding. At foreclosure, land is sold. Sale proceeds go to satisfying the debt.

Front 108

Mortgages: What if, after a foreclosure sale, the proceeds from the sale of Blackacre are less than the amount owed?

Back 108

Mortgagee brings a deficiency action against the debtor.

Front 109

Mortgages: What if there is a surplus?

Back 109

Junior liens of Cs w/ lesser priority are paid of in order of their priority. Any remaining surplus goes to debtor.

Front 110

Mortgages: What is the effect of foreclosure on Jr interests

Back 110

Foreclosure will terminate interests Jr to the mortgage being foreclosed but will not affect Sr interests. Jr lienholders will be paid in descending order with the proceeds from the sale, assuming funds are leftover after full satisfaction of superior claims. Jr lienholders should be able to proceed for a deficiency judgment. But once foreclosure of a superior claim has occurred, with the proceeds distributed appropriately, Jr lienholders can no longer look to Blackacre for satisfaction.

Front 111

Mortgages: Those with interests subordinate to those of the foreclosing party are?

Back 111

Necessary parties to the foreclosure action, must be joined. Debtor-mortgagor is also considered a necessary party and must be joined, particularly if C wishes to proceed against debtor for a personal deficiency judgment.

Front 112

Mortgages: Failure to include a necessary party…

Back 112

results in the preservation of that party's claim, despite foreclosure and sale. If a necessary party is not joined, his mortgage will remain on the land.

Front 113

Mortgages: What effect does foreclosure have on Sr interests?

Back 113

Foreclosure does not affect any interest Sr to mortgage being foreclosed. B at foreclosure sale takes subject to such interest. B not personally liable on that Sr debt, but as a practical matter, if Sr mortgage not paid, sooner or later, Sr C will foreclose against the land. This gives the foreclosure sale B a strong incentive to pay off the Sr mortgage holder's lien.

Front 114

Mortgages: Priorities?

Back 114

1. As a creditor, you must record. Until you properly record mtge, C has no priority.

2. Once recorded, priority determined by the norm of 1st in time, 1st in right.

Front 115

Mortgages: What is a PMM

Back 115

A PMM is a mortgage given to secure a loan that enables the debtor to acquire the encumbered land.

C lends O 100k so O can purchase Blackacre.

C takes as collateral a security interest in Blackacre, the very parcel that C's extension of value enabled O to acquire. C is a PM Mortgagee.

Front 116

Mortgages: What priority does a PM Mortgagee have?

Back 116

Superpriority.

Example: C1 lends 200k to O, taking a security interest in all of O's real estate holdings, "whether now owned or hereafter acquired." C1 records. 6mths later, C2 lends O 50k to enable O to acquire Blueacre, taking back a security interest in Blueacre and recording that interest. O defaults on all outstanding obligations. All that he has left is Blueacre.

Even though C2 came along later in time, C2 has 1st priority in Blueacre, the parcel whose purchase he financed.

Front 117

Mortgages: What is subordination?

Back 117

Subordination agreements are private agreements where a Sr C agrees to subordinate its priority to a Jr C.

Front 118

Mortgages: What is equitable redemption?

Back 118

Equitable redemption is universally recognized up to the date of the sale. At any time prior to the foreclosure sale, debtor has the right to redeem the land and free it of mortgages. Once a valid foreclosure has taken place, the right to equitable redemption is foreclosed. The right of equitable redemption is exercised by paying off missed payments and accrued interest and costs.

Front 119

Mortgages: What if mortgage or note contained accelaration clause?

Back 119

An accelaration clause permits mortgagee to declare the full balance due in event of default. If mortgage has acceleration clause, the full balance and accrued interest and costs must be paid to redeem.

Front 120

Mortgages: May debtor/mortgagor waive the right to redeem in the mortgage itself?

Back 120

No. This is known as clogging the equity of redemption which is prohibited as a matter of public policy.

Front 121

Mortgages: What is statutory redemption?

***NY distinction?

Back 121

Recognized in 1/2 states.

+ SR give debtor-mortgagor a statutory right to redeem for some fixed periods after foreclosure sale (6 months - 1 year).

+ applies only after foreclosure has occurred. The amount to be paid is usually the foreclosure sale price rather than the amount of the original debt.

+ most SR states give mortgagor right to possess Blackacre during the statutory period.

+ effect of Mr redeeming is to nullify the foreclosure sale.

+ redeeming owner is restored to title.

***NY has no statutory right to redemption.

Front 122

What is lateral support?

***NY Distinction?

Back 122

+ If adjacent landowner's excavation causes improved land to cave in, the excavator will be liable only if he acted negligently.

+ StL doesn't attach to excavator's actions unless P shows that b/c of D's actions. P's improved land would have collapsed even in its natural state.

+ For StL to apply, P must show that improvements in land (shrubs, fountain structures) didnt' contribute to his land's collapse.

***NY not SL.

Front 123

Water Rights: What is the riparian doctrine?

Back 123

The water belongs to those who own the land bordering the watercourse, AKA riparians.

+ Riparians share the right of reasonable use of the water.

+ One riparian will be liable if his use unreasonably interferes with another's use.

Front 124

Water Rights: What is the prior appropriation doctrine?

Back 124

+ 1st in time to use, 1st in right to divert and use, even if not riparian.

+ Any productive/beneficial use of water creates appropriation right

BUT

+ Natural rights (domestic) trump commercial rights (raise trees to sell)

Front 125

Water Rights: What are groundwater (AKA percolating water) rights?

Back 125

water beneath the surface of the earth that is not confined to a known channel.

surface owner entitled to make reasonable use of ground water.

the use must not be wasteful.

Front 126

Water Rights: What are surface water rights?

Back 126

+ Surface Waters = those which come from rain, springs, or melting snow + have not yet reached a natural watercourse or basin.

+ The common enemy rule: (about 1/2 states) surface water is a nemesis: A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water.

+ Many courts have modified the common enemy rule to prohibit unnecessary harm to other's land.

Front 127

Possessor's Rights: What are they?

Back 127

Possessor of land has the right to be free from trespass and nuisance.

Front 128

Possessor's Rights: Definitions of trespass and private nuisance?

Back 128

Trespass: The invasion of land by tangible physical object. To remove trespassor, action for ejectment.

Private nuisance: The substantial and unreasonable interference w/ another's use and enjoyment of land. Unlike trespass, nuisance does not require tangible physical invasion. Thus, odors and noise could give rise to a nuisance but not a trespass.

Front 129

Possessor's Rights: Nuisance and the hypersensitive P?

Back 129

No nuisance if problem is result of P's super-sensitivity or special use. (Plant makes noise that agitates dogs in kennel)

Front 130

Eminent domain: What is it?

Back 130

Gov't's 5A power to take private property for public use in exchange for just compensation.

Front 131

Eminent domain: Explicit takings?

Back 131

Acts of governmental condemnation - for example, gov't condemns your land to make way for a public highway.

Front 132

Eminent domain: Implicit/Regulatory takings?

Back 132

A government reg that, although not intended to be a taking, has the same effect. Buy NC land for development. 3mths later, gov't imposes ban on all development there. You're not target of overt condemnation. You argue that reg is implicit taking. It has worked an economic wipeout of investment.

Front 133

Eminent domain: Remedy for regulatory taking?

Back 133

Gov't must either compensate owner for taking or Terminate the reg and pay owner for damages that occurred while reg was in effect.

Front 134

Zoning: Definition?

Back 134

Pursuant to its police powers, gov't may enact statute to reasonably control land use.

Front 135

Zoning: Variance?

Back 135

The principal means to achieve flexibility in zoning. Proponent must show:
i) Undue hardship, and
ii) The variance won't work a detriment to surrounding property values
to get variance.
Variance is granted or denied by administrative action, typically a zoning board.

Front 136

Zoning: Nonconforming use?

Back 136

A once lawful, existing use now deemed nonconforming by a new zoning ordinance. It can't be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking.

Front 137

Zoning: Unconstitutional Exactions?

Back 137

Exactions are those amenities that gov't seeks in exchange for granting permission to build. Exactions are inherently suspect. To pass constitutional scrutiny, exactions must be reasonably related both in nature and scope to the impact of the proposed development. If they are not, the exactions are unconstitutional.