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117 Cards in this Set
- Front
- Back
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Freehold Estates:
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A. Freehold Estates - Present Possessory Estates: recognize them, know how they operate and if future interests exist
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Freehold Estates: Fee Simple Absolute
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Absolute ownership for infinite duration. “To A”
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Freehold Estates: Fee Tail
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(unlikely to be tested) – To A and the heirs of his body
i. Duration - Lasts only as long as there are lineal blood descendants. Passes automatically to A’s descendants ii. Future interest – Reversion if held by grantor. Remainder if held by third party iii. Bottom Line – WA will probably construe as fee simple |
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Freehold Estates: Fee Simple Defeasible - Fee Simple Determinable
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a. Fee Simple Determinable- “until, so long as”
i. Duration – Potentially infinite so long as event does not occur. If event occurs, forfeiture is automatic ii. Transferability – Alienable, devisable, descendible (ADD) but always subject to condition iii. Future Interest - possibility of reverter (POR) – held by grantor |
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Freehold Estates: Fee Simple Subject to a condition subsequent
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– “To A, but if X ever happens, G reserves right to reenter and retake.” Right of reentry must be exercised within a reasonable time (60 years too long)
i. Duration – potentially infinity, as long as condition not breached, or until holder of right of reentry timely exercises the power of termination ii. Transferability – ADD, but always subject to the condition iii. Future Interest - right of entry (may reenter, doesn’t have to), power of termination – Held by Grantor |
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Freehold Estates: Fee Simple Defeasible - Fee simple subject to executory interest
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To A “until, so long as” ____ then to B
i. Duration – Potentially infinite, so long as contingency does not occur ii. Transferability – ADD, but always subject to condition iii. Future interest - Executory Interest (created in one other than grantor) iv. If Condition occurs there is automatic forfeiture to the third party |
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Freehold Estates: Fee Simple Defeasible - Rules for construction
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i. Without clear language indicating duration, words of desire or intention are insufficient
ii. Absolute restraints on alienation are void |
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Freehold Estates: Life Estate
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“To A for life” or “To A for the life of B” or “To A for life then to B”
a. Duration – measured by life of grantee or some other life b. Transferability – ADD if measuring life still alive c. Future Interest – Reversion (if held by grantor); Remainder (if held by third party) d. Always measured in life terms, not years and terminates at end of measuring lifetime(s) e. Distinguishing characteristics of Life Estate i. Profits – Life tenant entitled to all ordinary uses and profits from the land ii. Waste – Life Tenant must not commit or may have to pay damages (treble if waste intentional) (1) Intentional (Voluntary) – overt conduct that causes decrease in value. Could involve damaging land or exploiting resources (2) Permissive – land allowed to fall in disrepair or LT fails to reasonably protect. Weather damages or failure to pay property taxes (3) Exceptions – not waste if lands prior or only use was exploitation of natural resources, LT granted right to commit waste, or LT consumes natural resources to maintain the premises or make reasonable repairs. |
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Future Interests: Basic Rule
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Doesn’t entitle owner to immediate possession, but may get it some time in the future – 5 types. PoR, Right of Entry, Reversion, Remainders, Executory interests
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Future Interests: Interests created in Grantor - Possibility of reverter
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only follows fee simple determinable
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Future Interests: Interests Created in Grantor - Right of entry
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only follows fee simple subject to condition subsequent
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Future Interests: Interests Created in Grantor - Reversion
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follows any other interest given to the grantor besides the two above. Can follow FSD or life esate
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Future Interests: Interests created in someone other than the Grantor -
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a. Remainders- REMEMBER GRANTOR CAN NEVER HAVE A REMAINDER. Created at the same time and instrument as prior estate. Always accompany a prior estate of known fixed duration (usually life estate). They never cut short a prior estate. They do not follow any time gaps between prior estates and future interests.
i. Vested – created in an ascertained person AND not subject to any condition precedent ii. Contingent – Created in an unascertained person or subject to a condition precedent |
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Future Interests: Interests created in someone other than the Grantor - Executory Interests
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Any future interest, created in one other than the grantor that is not a remainder
i. Shifting – always follows a defeasible fee and cuts short someone other than the grantor ii. Springing – Cuts short the interest of the grantor |
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Future Interests: Rule in Shelley's Case
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Case (Rule Against Remainder’s in Grantee’s Heirs – NO LONGER FOLLOWED - but applies to deeds and wills effective before Jan. 1, 1995). "To A for life, then to the heirs of A." and A is alive. NOW, this rule creates a life estate, and heirs have a contingent remainder. Before, it was held that the remainder was in A not his heirs so it just merged into an FSA.
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Future Interests: Doctrine of Worthier Title
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(The Rule Against Remainder’s in Grantor’s Heirs). Under this doctrine, a remainder limited to the grantor’s heirs is invalid, and the grantor retains a reversion in the property. Abolished prospectively in 1995, but still applies to deeds effective before then. If O conveys "To A for life, then to my heirs." NOW - A has a life estate and O's heirs have a contingent remainder if it is a deed, or a vested remainder if by will. BEFORE, the future interest was in O, not his heirs
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Future Interests: Rule Against Perpetuities
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future interest void if there is any possibility (however remote), that a given interest may vest more than 21 years after the death of the measuring life. Only applies to contingent remainders, executory interests, class gifts, options to buy land, and rights of first refusal.
a. Interests created in grantor are exempt from rule b. A gift from one charity to another is exempt from violating the RAP b. Washington "wait and see" rule for trusts. |
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Future Interests: Rule Against Restraint on Alienation
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Generally any restriction on transferability of a fee simple interest is void
1. Types of restraints that are void on Fee Simple estate (unless restraint wont last very long) a. Disabling (except spendthrift trust)– “To A, but A shall have no power to transfer land without my consent” b. Forfeiture – “To A, but if A attempts to transfer without my consent, it will automatically revert to me” c. Promissory – “To A, but A promises and covenants not to transfer the land without my consent” 2. Valid restraints a. Forfeiture and promissory restraints upheld if imposed on an interest less than fee simple b. Right of first refusal – must be reasonable – person holding right must respond within reasonable time and must be obligated to pay a fair market price c. Restraint will be struck down if it results in illegal discrimination |
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Concurrent Ownership: Tenants in Common
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Concurrent estate with no right of survivorship. Each owns individual part and has right to possess the whole. Each part is ADD. Presumption favors T/C
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Concurrent Ownership: Joint Tenancy
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Created by two or more co-tenants and features a right of survivorship (shares pass automatically to other J/T upon death). Only Alienable, but not descendible or devisable.
a. Creation – All 4 must be met to create a JT. JT’s must take their interest –Think T-TIP i. At the same time ii. By the same title (instrument) iii. With Identical interest iv. With identical rights to possession b. Severance – Three ways – Remember SPaM – Sale, Partition, and Mortgage i. Sale – sell or transfer interest during her lifetime w/o JT’s consent – converts to TC (if married CP presumed) ii. Partition a. In Kind – Ct place a boundary and separate the cotenants (won’t do if zoning laws violated) b. By sale – Ct orders sheriff to sell prop and divide proceeds among cotenants. Ct considers any rents collected or whether any money is owed for repairs. Ct. may adjust the new boundary line to account for money owed by one party to another, called owlty iii. Mortgage – will not severe the joint tenancy |
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Concurrent Ownership: Rights and Duties of Co-tenant (in either JT or TC
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a. All JT or TC are entitled to possess and enjoy the whole. A tenant who wrongfully excludes another from possession of the whole or any part has committed ouster. B would owe A rental value of the house and SoL for adverse possession begins to run against A
b. Co-tenant entitled to fair share of rental income to third party c. There can only be adverse possession where there has been an ouster d. Each cotentant responsible for their share of the taxes and mortgage interest payments e. Right to contribution for reasonable and necessary repairs f. No right to contribution for improvements, but improver will get credit for increased value g. May bring action against cotenant for waste h. There is a fiduciary duty between one another |
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Landlord Tenant: Lease Requirements
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Written and Acknowledged if over 1 year, Recording Act if over 2 years.
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Type of Leasehold
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a. Fixed term (estate for years) – terminates automatically at end of term, no notice necessary
b. Periodic- Creation and Termination – continues in successive intervals until L or T give proper notice of termin. Can arise expressly when a written lease states term, or by implication where no duration is set, but the payment of rent is at set intervals. Notice of termination must be in writing and delivered to other party. 20 days notice by L and 30 days notice by T for non-residential. 20 days notice by either party for residential. c. Tenancy at will- A tenancy that is immediately terminable by notice given either by the landlord or the tenant. This type must be explicitly agreed to d. Tenancy at sufferance- Arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy. L can bring unlawful detainer claim or treat T as periodic tenant |
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Landlord Rights and Duties: LL liability for personal injury
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a. Latent defect – L liable for concealed dangerous condition she knows about or had reason to know of. L has duty to disclose defects to T
b. Common area defect – Duty to exercise reasonable case over common areas c. Leased for public use – L liable if knows or should have known of dangerous condition and has reason to believe public will use the premises and L fails to repair d. Covenant to repair – L is liable for costs of repair and for resulting injuries e. Negligent attempt to repair – L is liable where attempted repairs done negligently f. Negligence- New Trend (not yet followed in Washington) |
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Landlord Rights and Duties: Implied Covenant of Quiet Enjoyment
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L required to let T use land without interruption
a. Landlord has title b. Actual eviction c. Partial actual eviction – If T doesn’t have access to detached garage – partial actual eviction d. Constructive eviction – must show bad conditions, that are the fault of L (either overtly or failure to act) and L knows or has been given notice of the condition. TENANT MUST ALSO HAVE MOVED OUT |
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Landlord Rights and Duties: Implied Warranty of Habitability
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a. L required to maintain prop in habitable condition. Applies only to residential premises.
b. Remedies – (DART) Damages, abatement of rent, repair and deduct from rent, terminate lease |
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Residential LL T Act and Waivers -
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Cannot be waived unless approved by county attorney, attorney general or T’s attorney
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Termination of Leases: think SHARD
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a. Destruction – T has option to terminate. BUT T can’t terminate if it is non-residential and they rent the entire parcel. Also, no requirement that L rebuild.
b. Release – If T purchases L’s interest c. Surrender – If L accepts T’s offer to convey then it will be terminated. Sick relative hypo d. Holdover tenant – L is required to put T in actual physical possession e. Abandonment – L refuses to accept T’s surrender. If T vacates and stops paying, lease is terminated by this |
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Unpaid Rent: LL Remedy
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a. Eviction
i. Self help – cannot use for residential, maybe for nonresidential. Must get unlawful detainer action ii. Retaliatory Eviction – presumed if T had filed something against L, but T must be current on rent b. Unlawful detainer c. Security Deposits – L must place in escrow and return within 14 days of lease expiration. L’s failure to do this makes him liable for full deposit and for attorney fees. Double deposit if withholding is willful d. Landlord’s Lien – abolished for residential tenancies, if L improperly uses it is a $50/a day fine up to $1K. However, If resident tenant abandons premises, L may hold good left behind for 45 days, try to notify T, and then sell or dispose them. For non residential liens, L may assert a lien on T’s goods for delinquent rent. The lien has priority over all purchase money security interest in the goods. |
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Tenant's Statutory Remedies
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a. Notice and right to cure
b. Termination of Utilities c. Failure to return security deposit d. Uninhabitable |
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Tenant's Duties
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may be liable in tort to third persons for dangerous conditions or activities
1. Tenants Duties a. Duty to repair – duty not to commit waste i. Voluntary waste – overt acts which intentionally or negligently damage premises ii. Permissive – T neglects to prevent damage from the elements iii. Ameliorative – T must return in same nature and character as received. May not make sub. alterations iv. Destruction of premises – If w/o fault of T or L, no waste v. Tenant’s covenant to repair – in res leases L obligated under IWH, even if T covenants to repair. In non-res leases, T’s cov. To repair is enforceable b. Duty to pay rent – must remain current, no duty if surrender of lease, L must bring unlawful detainer if no pay c. Not to use for illegal purpose – no drugs or other activity imminently hazardous d. Landlord remedies if tenant fails i. Failure to pay rent -evict or sue for remainder of rent due in the term. L does have a duty to mitigate ii. Tenant Abandonment – mitigation of damages by landlord |
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Assignment
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absent an express restriction, T may transfer leasehold in whole or in part
1. Assignment- Complete transfer of entire remaining term of lease. Assignee stands in shoes of T, L and assignee are in privity and each liable to each other for all privileges that touch and concern the land. T no longer liable |
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Sublease
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- Occurs when a tenant retains part of the remaining term of the lease. Sublessee becomes tenant of T, pays rent to T who pays L. T remains liable unless expressly released. Sub not liable for paying L because no privity
3. Requirements to be valid |
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Requirements for A or S to be valid
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a. Consent – L’s consent only required if there is a term in the lease. An A or S in violation of such a clause is valid, but is a breach of the lease by T. If a reasonable clause involved, L may deny if T2 has poor credit or incompatible business but not for a refusal to pay rent increase
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Assignments by L
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T still has to pay rent to new L. All other T covenants run with the estate and benefit new L as long as they touch and concern the land. T’s duty to recognize the new L is called Attornment. New L has same obligations to T as long as they touch and concern
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Fixtures
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once moveable chattel that has been annexed to real property and which becomes part of the realty
1. The manifest intent of the annexor at the time of annexation controls – intent measured by these obj factors a. Greater property interest held by annexor, stronger presumption annexor intended to perm. Improve estate b. Degree of annexation – Can it be removed without substantial injury to realty = heating system, furnace c. Nature and Use – is chattel’s use closely or uniquely connected to prop = keys 2. Rule – Fixtures pass with the land, including when it is conveyed, leased, and/or mortgaged. Unless expressly excluded from K 3. Tenant Fixtures – can be removed by T if done before termination of lease and T repairs any damage done |
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Nuisance
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use of one’s land that unreasonably interferes with the use or enjoyment of other nearby land
1. Private Nuisance – affects a few nearby properties. Action must be brought by affected homeowner 2. PublicNuisance – entire community or neighborhood affected – County atty, AG, or private owner may bring 3. Remedies – Injunction and damages – cts weigh gravity of harm against utility of conduct. May decide to regulate or limit nuisance 4. Defenses – if Nuisance in operation before P moved nearby. Compliance with zoning and enviro laws, Washington Right to Farm Act (good agricultural practices, establish prior, and no public health or safety risks) |
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Servitudes: Basic Definition
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Rights in the Land of Another
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Servitudes: Easement - Basic Definition
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Non-possessory right to use the land of another for a specific purpose.
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Servitudes: Easement - Affirmative easement
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Entitles holder to enter and do something on servient land. Like a right of way
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Servitudes: Easement - Negative easement
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- Entitles holder to compel servient tenement to refrain from engaging in activity.
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Servitudes: The Other two types of easements - In Gross & Appurtenant
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In Gross
Does not benefit any specific land, can’t be transferred unless they are for commercial purposes. A right to fish in my swimming hole is a personal gross easement. Appurtenant Benefits the holder in her physical use and enjoyment of her property |
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Servitudes: Easement - Dominant and Servient land
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e. Dominant land - Benefited by the easement.
f. Servient land - Burdened by the easement. |
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Servitudes: Easement - Profit a prendre
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(Creation same as easements)
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Servitudes: Easement - Exclusive easements
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Owner grants the sole right to use the easement’s pathway; owner cannot use it or grant easements there to others. Non-Exclusive easement: Owner retains right to use the easement’s pathway, provided there’s no unreasonable interference with easement owner’s use. Owner may grant additional easements there to other.
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Servitudes: Easement - Alienability
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Appurtenant easements follow the ownership of the dominant tenement, servient burden will follow unless sold to a BFP without notice; easements in gross may be assigned or transferred by the holder (if for a commercial purpose).
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Servitudes: Easement - Creation of Easement (PING
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Normally must be in writing because interest in land, must be signed by subserv.
a. Prescription – continuous (10 years), open and notorious, and non-permissive (must be in writing to be permissive). Can stop by blocking, an injunction, or giving the user a license b. Implied grant (can never have negative implied easement)– if prior to time tract was divided, a use exists on sub. land that is reasonably necessary for enjoyment of the dominant land. Two exceptions = no preexisting use for roads in subdivisions, and where holder has been granted right to remove valuable product from land c. Necessity – must show prior common ownership (other than by gov.) and that the land is locked d. Grant/reservation- Statute of Frauds applies – should state it is an easement, the scope, duration, and location of the easement |
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Servitudes: Easement - Scope
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Look at reasonable intent of the parties; Reasonable changes allowed because change in technology, reasonable increased use allowed, use can’t be too far removed from original scope. May limit access to sub, but absence of agreement it is considered non-exclusive. If exclusive, Dominant has duty to repair
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Servitudes: Easement - Termination
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a. Merger- The burdened and benefited land to one owner.
b. Release- Terminated by written deed given by easement holder to subservient. c. Estoppel- Reasonable reliance on oral termination by easement holder. d. Abandonment- A long period of non-use, plus additional evidence of intent to abandon easement. e. Prescription- Illegally blocked use for 10 years. f. Necessity – easements created by necessity terminate as soon as necessity ends g. BFP – where easement was not recorded, BFP who buys land without notice of easement is protected |
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Servitude: Easement - License and profits
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License (Compare with Easements)- permission to be on the land. Like party guests, plumbers, concert goers etc.
1. Oral- Allowed 2. Revocable at will unless estoppel bars revocation C. Profits – Like an easement, a profit is a non-possessory interest in land. Holder entitled to enter servient land and extract a natural resource |
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Servitude: Covenants - Basic definition
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Written promise to do (or not to do) something on the land. It is not a property interest, but a K limitation
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Servitude: Covenant - Requirements for burden to run with the land
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a. P: Privity, both horizontal and vertical – look to relationship between promising parties and whether they shared some interest in land independent of the covenant (horizontal like LL/T), and whether there is the same durational interest in the party (vertical. If A grants cov. To B, then A transfers life estate to A1, no vertical privity with B)
b. I: Intent – original parties must have intended for covenant to run c. T: Touch and concerns the land d. N: Notice – a BFP who records and who has no actual or constructive notice takes w/o covenant |
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Servitude: Covenant - Requirements for Benefit to run
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the same as for burden except no horizontal privity and notice required. Also, the touch and concern requirement means that the promise must benefit the holder in her use and enjoyment of the benefitted land
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Servitude: Covenant - Termination
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By the holder of the benefit executing a release in writing, merger, and condemnation.
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Servitude: Covenant - Special situations
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a. Promise to pay money – seen in covenants to pay homeowners associations – if money is used in connection with the land, the burden will run
b. Covenants not to compete – probably ok if covenant is reasonable in scope and clearly related to relevant land c. Racially restrictive covenants – Void |
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Servitude: Covenant - Remedies
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Damages only remedy for covenant. To get an injunction, the promise must be enforced as equitable servitude
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Servitude: Covenant - Equitable Servitudes
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Equitable Servitudes (covenant enforced in equity) – must be in writing
1. Express creation - through writing. Must Touch and concern, intend to run, and there must be notice (burden only) 2. Implied by common scheme- subdivision, evidenced by a recorded plat, by a general pattern of prior restrictions, or by oral representation. 3. Enforcement - requirement for burden to run (no privity required) 4. Defenses a. Unclean hands – P is violating a similar restriction on their own land b. Acquiescence – ignoring a violation of a servitude by one party, may count as abandoned servitude to other burdened parties c. Estoppel – if benefitted party acts like it has abandoned servitude and burdened party relies d. Changed Neighborhood conditions – if N has changed significantly since the servitudes creation so that it would be inequitable to enforce the restriction 5. Termination- Merger; written release; changed neighborhood conditions; or condemnation |
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Adverse Possession
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A. Time Period – 10 years, 7 years if A.P. has color of title. If forest land, must erect sub. impr. Which stand for 10y
B. Five Elements of Adverse Possession: “OCEAN” 1. O: Open and notorious 2. C: Continuous – no long gaps 3. E: Exclusive – T.O. not on land, no other APs 4. Actual possession 5. No Permission – APs state of mind is irrelevant C. Disabilities (3Is) – Infancy, Insanity, Imprisonment. No tacking of disabilities D. Future Interests - . SoL doesn’t run on future interest until that interest becomes possessory E. Government Land – SoL does not run against gov F. Severed Mineral Estates - G. Torrens Land – can register titles under this, APs will not run against them H. Tacking of Tenant’s Possession to Landlord I. Boundary Change by Acquiescence – can happen if one marks the boundary at an incorrect location, as with a fence, and both parties recognize the marked line as a boundary and they do so for 10 years. No hostility required. |
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Conveyance: Basic Definition
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Real Estate Sales K
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Conveyance: Creation and SoF
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need a contract, escrow, and closing. SoF applies and must contain identity of the parties, description of the land, mutual promises, and the price, and signature of the party against who enforcement will be sought
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Conveyance: Part Performance
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(exception to writing requirement – must have proof all the essential terms of the K, acts done by party can be explained only by reference to an agreement and the purchaser does one of the following; takes possession, pays part or all of the price, makes substantial improvements
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Conveyance: Marketable title
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implied warranty that title is free from reasonable doubt. Can be breached if it is anything less than an FSA
1. Waiver – buyer may waiver any or all of the breaches of marketable title in the K of sale 2. Remedies for unmarketable title (damages & specific performance) a. notice and time to cure – reasonable b. Remedies – if seller fails to cure, buyer can rescind the K, seek damage, or get specific performance with an abatement of the purchase price c. Merger – K merges with the deed, assuming no fraud, seller is no longer liable |
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Conveyance: Risk of Loss
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– the parties can allocate by agreement, if one party is at fault they generally bear the loss
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Conveyance: Time of Performance
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presumed that time is not of the essence in real estate Ks. Performance in a reasonable time may still enforce. Presumption overcome only when time is of the essence
a. Of the essence – if stated in the K, or parties intention shown by circumstance, or party gives other notice within a reasonable time prior to closing b. Overcoming presumption – can sue for breach of the K |
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Conveyance: Remedies for Breach
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1. Damage – difference between K price and market value of the land on day of breach + incidental losses
2. Liquidated damages – most sales contracts specify this – By statute, WA permits a seller to retain an earnest money deposit upon the buyer’s breach if a. Amount is no more than 5% of total sale price b. The K provides that retention of the deposit is the sellers sole remedy c. Even if these provisions are not met, court may still enforce if amount is reasonable 3. Specific Performance may also be sought by either party |
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Conveyance: Seller's liability for defect
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No implied warranties of quality or fitness
1. Exception for action brought by first purchaser of a new home built by a commercial builder where the defects “profoundly compromise” the houses essential nature. Parties may waive by explicitly negotiated agreement |
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Conveyance: Equitable conversion
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Giving the buyer the property interest, but maintaining legal title by the owner. Maintaining the legal title though is only basically a title to get paid.
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Deeds: To satisfy SOF, must have
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have these elements – (1)identification of the parties, (2)description of the land, (3)words indicating title is to pass and a (4) signature of the grantor
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Deeds: Delivery
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a deed is only effective once delivered. It is some act by the grantor with intent that it operate immediately
1. Method - mail delivery, escrow, or presumed under certain circumstances (like if deed is recorded) 2. Failed delivery – no delivery if GR executes deed but fails to deliver in lifetime 3. Effect – delivery cannot be returned – title passes to GE on delivery unless he refuses to accept it. |
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Deeds: Covenants of title
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- A deed MAY contain none, some, or all 6
1. Present Covenants – Seisin (I own land and no adverse possessors), right to convey, and no encumbrances. If they are breached it happens at the time of conveyance. 6 year SoL that starts when deed is delivered. Only GE can recover because present covenants do not run with the land 2. Future Covenant – Warranty (I will defend you from any lawful claims of title), Quiet enjoyment (wont be disturbed by someone with better title), and Further assurances (I will give any further docs needed to perfect title. Only breached when three is interference with GE’s possession. 6 year SoL starts with interference. GE’s successors protected because it runs with the land |
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Deeds: Types (there are 3)
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1. General Warranty Deed – contains all 6 covenants. GR “conveys and warrants . . .”
2. Bargain and Sale Deed – Only protects against actions of this GR, not against GR’s predecessors. Contains seisin, free from encumbrances made by GR. GR “bargains, sells, and conveys” 3. Quitclaim Deed – Contains no covenants, basically just a release of whatever interest GR has in prop. |
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The Recording Act: Basic Rule
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– In WA first to record wins if second purchaser was a BFP
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The Recording Act: Application
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applies not just to deeds, but all forms of written conveyance: Mortgage, leases more than 2 years, easements, covenants, contract of sale, etc.
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The Recording Act: Bona Fide Purchaser Status
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1. must be a purchaser,
2. who took without notice (AIR) of the prior instrument and a. Actual – notice gained from any source b. Inquiry – GE held to have knowledge of any facts that reasonable inquiry would have revealed c. Record – GE held to have knowledge of recorded documents in the chain of title 3. paid valuable consideration - must be of substantial pecuniary value. a. Antecedent Debt – party who receives a deed or mortgage as security for a preexisting debt has not given valuable consideration b. Judgment Leinors – judgment creditor has not paid valuable consideration and is not a BFP |
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The Recording Act: The Shelter rule
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Those who take from BFP step into BFP’s shoes. Even if they had actual knowledge of a prior unrecorded interest
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The Recording Act: Effect of Recordation
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– it gives notice, but it is not necessary for a valid conveyance. Recordation also does not validate an invalid deed. It does not protect against adverse possession (if A gains through adverse possession, then leaves, then O sells to B, even if B records first, A still wins because prop was his through AP), prescriptive and implied easements because there are no docs to record.
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Real Estate Security Devices: Basic Rule
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usually comes with a loan, if borrower defaults, holder can take title or have it sold
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Real Estate Security Devices: Three types
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Three types – mortgage, deed of trust, and installment land contract
1. Mortgages- The debtor/notemaker is the mortgagor; she gives the mortgage to the lender, who is the mortgagee. Foreclosure must be done by judicial sale 2. Deed of Trust- The debtor/notemaker is the Trustor. The Trustor gives the deed of trust to a third-party trustee, who is usually closely connected with the lender. Foreclosure can result in judicial or non-judicial sale 3. Installment contract- The debtor is the purchaser of the land who signs a contract with the vendor, agreeing to make regular installment payments until the full contract price has been paid and then title transfers to purchaser. Foreclosure allows vendor to retake land and retain payments made. However, if purchaser has substantial equity (has to be at least over 20%) they can request a judicial sale |
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Real Estate Security Devices: Foreclosure of Deed of Trust
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Redemption
b. Priorities c. Foreclosure sale d. Deficiency Judgment |
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Real Estate Security Devices: Absolute Deed-Equitable Mortgage
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A landowner needing to raise money may “sell” the land to a person who will pay cash and may give the “buyer” an absolute deed rather than a mortgage. Court may recharacterize it as a mortgage.
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Real Estate Security Devices: Rights and Interests
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WA follows Lien theory of mortgages – debtor-mortgagor has title until foreclosure. The creditor-mortgagee has a lien and can’t take possession until foreclosure
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Real Estate Security Devices: Transfers
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All parties to a mortgage or deed of trust can transfer their interests. Ordinarily- mortgager transfers by deeding property, while mortgagee transfers by endorsing the note and executing a separate assignment of the mortgage.
1. Assumption – GE assumes debt by signing an assumption agreement. GE is primarily liable MR is secondarily. If MR is forced to pay he can demand reimbursement from GE 2. No Assumption – if GE does not assume but merely takes land “subject to” the debt, the MR is the only one liable 3. Due-on-Sale Clauses – ME consent required for transfer without paying off mortgage – if this clause is in mortgage |
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Real Estate Security Devices:
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Foreclosure – Terminates MR’s interest in the prop, prop is sold at auction to highest bidder. If amount sold for is more than MR owes, MR gets the surplus, if it is less, ME can obtain a deficiency judgment in that amount
1. Redemption – MR defaults, If ME accelerates debt, MR now owes full balance. ME has up to the moment foreclosure sale begins to redeem. The right to redeem cannot be waived a. Deed of trust – can reinstate loan w/o acceleration, by paying arrearages plus interests and costs at any time up to 11 days prior to foreclosure sale b. Statutory right to redemption after judicial foreclosure – within 12 months after sale, MR may redeem by paying the price bid at the sale plus interest and cost. 8 months if prop is non-agricultural and ME waives right to deficiency judgment. 2. Priorities – Usually determined by chronological order. Foreclosure terminates junior interest to the one being foreclosed but does not affect senior interest 3. Modification to priority – by failure to record, subordination agreement, purchase money mortgages presumed to have top priority, optional future advances |
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Zoning: Justification
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exercise of police power. In WA, power given by the const. (art. 11, sec. 11) and the state enabling acts. Zoning is carried out by various city and county governments
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Zoning: Classification
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B. Classification – Most common based on HUB
1. Height – height of the structure on the land 2. Use – what is on the land – like agricultural, residential, commercial, industrial 3. Bulk – set-back requirements, building size, and percentage of floor space to lot size |
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Zoning: Planning v. Zoning
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1. Planning – states largest and fastest growing counties required to adopt comprehensive plan that provides policy guidelines for the present and future development. It does not determine the legal use of any land. Cannot be a reason for denying a permit
2. Zoning – city or county enacts zoning ordinances which should be in general conformance with the comprehensible plan. Final decisions made by governing body, may or may not coincide with the planning commission recommendations |
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Zoning: Due Process
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All quasi-judicial actions must comply with procedural due process. Requirements are: notice, public hearing, verbatim record, findings of fact/conclusions of law and appearance of fairness.
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Zoning: Pre-existing Non-Conforming uses
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they are disfavored and often subject to restriction
1. Repairs – some Js prohibit them except those necessary for safety 2. Increased use - Usually owner cant enlarge, change, or extend non-conforming use. May intensify though – increasing output of a mine |
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zoning: Vested Rights
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Application for a building permit has a vested right to use the property under the zoning and regs in effect at time app was submitted.
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Zoning: Estoppel
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disfavored by courts – requires a statement, admission, or act by a first party (usually gov. official), good faith reasonable reliance by the second party; and injury if first party is allowed to repudiate
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Zoning: Special Use Permits
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for certain sensitive uses which do not violate zoning, but are not desirable in all locations
1. characteristics – granted by local zoning body, with numerous conditions, quasi-judicial action where Procedural due process applies 2. Conditions on permit – directly related to the proposed use, reasonable, not illegal or inconsistent with zoning, and reasonably calculated to achieve a legit zoning objective |
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Zoning: Variance
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permission to violate zoning ordinance. Need to have unique circumstances, undue hardship or practical difficulties, no self-inflicted hardship, and grant is not injurious to public. Its quasi-judicial, Procedural due process applies
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Zoning: Rezoning and Spot zoning
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when particular parties are granted a change in zoning classification. There must be a change in conditions to justify it. It is a quasi-judicial action and PDP applies. Spot zoning is an arbitrary act where small area is zoned for use inconsistent with its surrounding
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Zoning: PUD
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– Planned Unit Development – a devt with a mixture of densities and uses.
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Zoning: Conditional Zoning
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Approval to rezone in return for landowner’s covenant to develop or build in a certain manner. Must be for public need and may not involve government giving up its discretionary zoning powers. As with rezoning there must be a showing of changed conditions
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Zoning: Constitutional Limitations
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1. Substantive due process – is it a valid exercise of police power? Must be aimed at a legit purpose, means reasonably necessary, and cannot be unduly oppressive on landowner
2. Takings – was there a permanent physical occupation, a regulation so severe that there is no remaining economic value, or the economic impacts balanced against the reasonable expectations of the land owner when land was acquired and whether the character of government action is justified. 3. Equal Protection – is zoning discriminatory? There must be discriminatory intent. However, Fair Housing Act does not require intent, only impact 4. Procedural due process – all quasi-judicial proceedings must comply – notice, hearings, unbiased decision-maker |
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Zoning: Subdivision ordinances
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– division of land into more than one parcel requires government approval
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Zoning: State environmental Policy Act
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division of land into more than one parcel requires government approval
O. State Environmental Policy Act (Environmental Impact Statement) – requires preparation of an environmental impact statement whenever local gov undertakes major action that significantly affects the environment. Exepts family residences of four or less units and buildings less than 4000 square feet. Based on the EIS, local gov may approve or deny or impose restrictions. |
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Zoning: Shoreline management act
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requires permit for any substantial development on a shoreline (within 200 feet of high water mark of any lake, river, or ocean) – exempts single family residences and projects that cost 5000 or less.
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Zoning: Growth Management Act
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need comprehensive plan, regulations to protect critical areas and agricultural, forest and mineral lands
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Zoning: Judicial Review
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1. Standing – must be a resident affected, or a nonprofit org with at least one member injured
2. Exhaustion of Remedies – party seeking review must do so with local government unless purely const. Issues involved. 3. Laches – P may be barred if she knew of the condition, unreasonably delayed bringing the action, and if delay has damaged D 4. Statute of Limitations – vary by jurisdiction 5. Scope of Judicial Review – legislative decisions presumed valid, burden is on the challenger. Quasi-judicial – not presumed valid, burden on govt. cts review under arbitrary and capricious standard |
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Personal Property: Basic Definition
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– property that is moveable (not permanently attached to land) – Leases of land for a term of years are personal property.
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Personal Property: Elements of Ownership
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- Dominion and control + intent to assert ownership. Dominion and control can be constructive or actual
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Personal Property: Fixtures
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May be converted back to personal property by severance from the land
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Personal Property: Wild Animals
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owned by the state. Person can become owner through capture or kill – but only in comp. with WA law
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Personal Property: Found Property - Lost
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1. Lost – owner accidentally and involuntarily parted with his possession, doesn’t know where to find.
1. Finder (has physical control and intent) entitled to possession except against true owner 2. Landowner may be awarded possession if finder was; trespassing, place of finding was highly private, finder was an ee, or it was found in the soil 3. After sufficient time has passed and it appears abandoned or SoL has run, possessor gets title |
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Personal Property: Found Property - Mislaid
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intentionally placed somewhere then forgotten
a. Landowner entitled to possession except against true owner b. Duties of finder or landowner – becomes a quasi-bailee, must take due care or will be liable for negligence. If finder knows or has reasonable means of finding the true owner, he must make effort to do so c. After sufficient time has passed and it appears abandoned or SoL has run, possessor gets title |
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Personal Property: Found Property - Abandoned
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If owner intended to give up title and possession. Finder gets title
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Personal Property: Accession
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addition of value through labor or adding new materials.
1. Trespasser cannot recover, owner retains title 2. Owner’s remedies – Conversion damage (value of original materials plus any consequential damages, or Replevin (the return of the chattel) |
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Personal Property: Confusion
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– Intermixture of personal property owned by different person such that the peroperty of each can no longer be distinguished
3. Known Contributions – parties take their proportional interest even if it was done intentionally or fraudulently 4. Unknown contributions – if innocent, the parties share equally, if intentional all goes to innocent party unless other party can identify his portion |
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Personal Property: Adverse Possession
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(OCEAN)- 3 years in WA – Open and Notorious, continuous, exclusive, actual, non-permissive
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Personal Property: Inter Vivos Gifts
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Voluntary transfer of property by one party to another without consideration or compensation. Need IDA
1. Intent – donor must wish to make an effective gift, a promise to give something in the future is not a gift 2. Acceptance – if it is beneficial to donee, gift presumed, donee may refuse by affirmative act. 3. Delivery – Actual, constructive (like giving the keys), symbolic (written paper signed by giver) 4. “Causa mortis” – gift in contemplation of death – sane requirements as inter-vivos IDA. Applies only to personal prop. If person doesn’t die, gift is automatically revoked. |
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Personal Property: Bailments
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– legal possession by bailee of bailor’s personal property. Two types
3. Voluntary – A loans b a book to read 4. Involuntary – A loses his book and B finds it 5. Elements – BE must have physical custody of the property and intent to exercise control. Bailee must give consent 6. BE rights – exclusive right to possession during bailment even against BR 7. BR rights – where BE’s wrongful acts result in loss or damage, BR can seek replevin, trover, or damages depending on facts |
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Personal Property: Bailments -Standard of care for bailee
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If for benefit of BE he is liable for even slight negligence, if for benefit of BR he is liable for gross negligence, if mutual, liable for ordinary negligence. In all cases BE has burden of persuasion
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Personal Property : Bailment - Rights against third parties
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either BR or BE may bring an action for damages, but not both. BR can’t bring suit if bailment is for a definite time, until that time has concluded
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Personal Property: Bailment - Disclaimer of liability
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parties may limit by K. Except where BE is a professional w/ principle business as being a bailee, may not limit liability for negligence. Non-profession limits will be upheld unless a predominant number of the 6 factors exists
a. Type of business – suitable for public regulation? b. Importance of service – necessary to some members of the public? c. General availability d. Bargaining power e. Standardized contract f. Control by Bailee g. Hotels may limit liability for items placed into their care – where a safe is in the room, hotel’s liability will be limited to amount of valuables common or prudent for guests to keep in their rooms. |
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Personal Property: Bailment - absolute liability
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when BE departs from terms of bailment
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