Wa Bar Property - Real/personal

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Nuisance

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"a use of one's land that unreasonably interferes with the user enjoyment of other nearby land."
• Public (affects health, safety, or property of entire community or neighborhood; city or county attorney, AG, or private homeowner suffering special damages may sue)
• Private (affects one or a few nearby; affected homeowner may sue)

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Defenses to Nuisance

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• Coming to the nuisance,
• Compliance with zoning & environmental laws,
• WA Right to Farm Act i.e. consistent with good agricultural practices, established prior to surrounding nonagricultural activities, does not substantially adversely affect public health and safety)

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Easments

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"a non-possessory property interest which allows the use of another's land (the servient tenement) for a specific purpose."
Types
• Affirmative (may enter & do something)
• Negative (may prevent servient landowner from doing something)
Appurtenant
• Servient land burdened & dominant land benefited
• Transfer automatically with dominant land
• Transfer with servient land unless BFP w/o notice (actual knowledge, easement is visible, public records)
In Gross
• Servient land burdened but benefit not linked to the land
• Types (personal & commercial)
• Passes apart from any transfer of land, only commercial transferable

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Creation of an easement

Back 4

PING, Prescription, implied grant, Neccessity, Express grant or reservation

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Prescription

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• like adverse possession; continuous, open and notorious, and hostile, but not exclusive or necessary; prevent by physically blocking, injunction, or acknowledged license)

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Implied Grant

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• Implied if, prior to division, an apparent & continuous use existed on servient land that is reasonably necessary in light of cost and difficulty of alternatives to enjoy the dominant land; may be implied despite no pre-existing use for subdivision roads & profit a prendre; negative easements are never implied)

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Necessity

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• Must show, and ownership by someone other than the government & landlocked; for access & utility lines; limited to reasonable use & terminates when necessity ceases;
• WA statute allows owner to condemn an easement for access if it is for public use, reasonably necessary, & just compensation is paid

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Grant or reservation

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• In writing & signed by servient landowner,
• must include the statement that it is an easement, scope, duration, location, & complete and accurate description of servient land but not of easement;
• Reservation is conveying title but retaining right to use for specific purpose after conveyance; may not reserve for third-party)

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Scope of an easement

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• Subdivision Easement Use permissible if reasonable (4, not 400)
• Exclusive (dominant landowner has duty of repair) or nonexclusive (presumed, shared duty to repair)
• Evolution of use (horse-drawn carriages)
• Damages or Injunction for excessive or unreasonable use.

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Termination (of an easement)

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(BERNMAP)
• Bona Fide Purchaser (written, unrecorded, purchased without notice)
• Estoppel (servient owner materially changes her position in reasonable reliance on easement holder's assurances that the easement will no longer be enforced)
• Release (written)
• Merger (title to easement & servient land vested in the same person)
• Necessity (necessity easements terminate as soon as necessity ends)
• Abandonment (physical action demonstrating the intention to never use the easement again)
• Prescription (open, not., continuous, and hostile interference for 10 yrs)

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License

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• "permission to be on someone's land."
• May be oral; damages only; freely revocable unless estoppel bars

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Profits

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"non-possessory interest in land entitling entry on servient land & extracting a natural resource"
• Shares all the rules of easements
• Appurtenant follows dominant land, in gross transferable

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Covenants

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"a contractual written promise to do or not do something related to land." To be valid, the covenant should be in writing, given for consideration, and acknowledged.
• Can be Negative or Affirmative but can only get Damages

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Trasnferability of Easements

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• If benefitted land sold, new owner must show benefit runs
• If burdened land sold, must show that burden runs
• If both sold, must show both.

Front 15

Burden Run?

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(PINT)
• Privity (horizontal i.e. promising parties shared some interest independent of the covenant & vertical i.e. successor owns same durational interest)
• Intent (original parties)
• Notice (BFP who records & no notice takes free of covenant)
• Touches & Concerns the land (affects legal relations as landowners)

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Benefit Run?

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• Same as Burden except no notice or horizontal privity & touch & concern means the promise must benefit the holder in her use and enjoyment.

Front 17

Equitable Servitude

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An equitable servitude is a covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burden land who have notice of the covenant. Must be in writing.
Implied Equitable Servitude
• Need not be in writing if a developer subdivides land & some of the deeds contain restrictive covenants but some do not; common scheme for development arising before developer starts selling lots.

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Defenses to Servitude

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• Unclean Hands (similar violations on own land.
• Acquiescence (ignoring as to one ignores as to all)
• Changed Neighborhood Conditions (significant such that enforcement is inequitable)
• Estoppel (abandonment & reliance bars enforcement, as does failing to bring suit for violations of a servitude within a reasonable time)

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Termination of a servitude

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• written release, merger, condemnation BUT NOT tax sale)

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Adverse Possesion

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Elements (OCEAN)
• Open & Notorious
• Continuous
o Tacking (period transfers if privity e.g. descent, devise, deed, sale; no writing req'd; no tacking for ouster; landlord gets tenant's possession)
o 10 years, 7 w/ color of title & taxes; SOL does not begin against disabled (infant, insane, imprisoned) owner until lifted or future interest holder until interest becomes possessory
• Exclusive (TO not on land, no competing AP)
• Actual (use typical owner would make of the land)
• Non-Permissive (Hostile) (Possessor's state of mind is irrelevant)
Exceptions
o Government Land unless being used in a proprietary capacity
o Torrens Land
o Boundary Changes by Acquiescence (one must mark, both must recognize for 10 years; no hostility required)

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Land Sale K (SOF)

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• Writing + DIPPS (accurate description of the land, identification of the parties, mutual promises to buy & sell, the purchase price, & the signature of the party against whom enforcement is sought)

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Part Performance

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A court may enforce an oral contract if there is proof of all essential elements, acts done by a party can be explained only by reference to an agreement, and the purchaser has done at least two of the following:
• (1) taken possession, (2) paid some or all of the purchase price,
• (3) or made substantial improvements.

Front 23

Risk of loss between closing and possesion

Back 23

• unclear who bears risk after signature; may allocate risk by agreement, and party at fault generally bears the loss.

Front 24

Implied Warranty of marketibility

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Every land sale has an implied warranty that at closing the seller will provide marketable title (title free from reasonable doubt (threat of litigation)).
• Buyer may waive warranty
Breached by: defect in chain of title, title by adverse possession, less than fee simple absolute, encroachments, encumbrances except mortgages may be satisfied at closing;
Remedies
• Notification & reasonable time to cure, if they fail, can
• Rescind, damages, or specific performance with an abatement of purchase price;
Merger: at closing, contract merges with deed & seller no longer liable for unmarketable title absent fraud

Front 25

Time to perform land sale contract

Back 25

Presumed that time is not of the essence i.e. performance within a reasonable time allows enforcement; presumption may be overcome if stated in the contract, parties intentions as shown by circumstances, or notice within a reasonable time prior to closing; effect is breached for failing to perform on time; regardless, liability for incidental losses)

Front 26

Remedies for breach of Land Sale Contract

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Difference between contract price & market value on the day of breach + incidental losses; most contracts specify liquidated damages i.e. earnest money, permissible up to 5% of total sale price provided it is the sole remedy for breach; alternatively specific performance)

Front 27

Seller's liability for defects on the property

Back 27

No implied warranties of quality or fitness for a particular purpose EXCEPT new construction i.e. new home built by a commercial builder & person seeking recovery is the first purchaser where defects profoundly compromise the house's essential nature; waivable.

Front 28

Deeds

Back 28

"not a contract, but a conveyance that passes legal title from seller to buyer effective when lawfully executed & delivered."

Front 29

Lawfully executed Deeds

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(PAWS)
• parties, accurate description of land,
• words indicating title is to pass, signature of the grantor

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Delivery and Acceptance

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Some act by the grantor with the intent that the deed operate immediately; WA permits delivery with intent to pass title at the grantor's death; maybe manual delivery, escrow, or presumed under certain circumstances e.g. recorded;
• No delivery if deed executed but delivery fails during lifetime; delivery cannot be canceled but may be refused.

Front 31

Present Covenants of title

Back 31

Present (breached at conveyance, SOL begins at deed delivery, does not run with the land)
Seisin ("I own the land, there are no no adverse possessors")
Right to Convey ("I have the right to transfer")
Against Encumbrances ("there are no encumbrances")

Future (breached upon interference, SOL begins at third-party claim of lawful title, runs with land)
Warranty ("I will defend you from any lawful claims of title")
Quiet Enjoyment ("you won't be disturbed by one with better title")
Further Assurances ("I'll give you what you need to perfect title")

Front 32

Future Covenants of title

Back 32

Future (breached upon interference, SOL begins at third-party claim of lawful title, runs with land)
Warranty ("I will defend you from any lawful claims of title")
Quiet Enjoyment ("you won't be disturbed by one with better title")
Further Assurances ("I'll give you what you need to perfect title")

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Types of Deeds

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• Quitclaim (no covenants, essentially a release of interests)
• General Warranty ("conveys and warrants..." all six covenants)
• Bargain & Sale ("bargains, sells, & conveys" seisin & against encumbrances made by the grantor; essentially protects only against grantor's actions & not predecessors)

Front 34

Recording Act

Back 34

• subsequent BFP prevails over prior grantee if records first.
• Applies to any form of written conveyance, inc mortgage, lease, easement, covenant, contract of sale, etc.

Front 35

BFP (of land)

Back 35

Purchaser w/o notice of prior instrument and pays valuable consideration.
• Purchaser: includes anyone who buys a fee or any lesser estate and mortgagees, BUT NOT donees, heirs, devisees b/c did not give consideration.
• Notice: AIR i.e. Actual from any source, Inquiry that is reasonable, or Record in the chain of title but not wild deeds.
• Valuable Consideration: substantial pecuniary value BUT NOT love and affection, deed or mortgage as security for a pre-existing debt, or judgment creditor.

Front 36

Shelter Rule (BFP)

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Those who take from a BFP step into the BFP's shoes & will prevail against any interest that is transferring BFP would have prevailed against, even if the transfer rate has actual knowledge of the prior unrecorded interest

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Effect of recording

Back 37

Gives notice, but it is not necessary for a valid conveyance, nor will it validate an invalid deed or protect against adverse possession, prescriptive and implied easements, or other interests arising by operation of law)

Front 38

Real estate security devices

Back 38

"a security interest in real estate securing some other obligation (usually a loan) entitling the holder, upon default, to either take title to the real estate or have it sold to settle the debt."
- Mortgage
- Deed of Trust
- Installment Land K
- Absolute Deed as Mortgage

Front 39

Mortgage

Back 39

• Debt + voluntary transfer of security interest to secure the debt
• Debtor = mortgagor & creditor = mortgagee
• Created by deed w/ deed formalities
• Must be foreclosed by judicial sale

Front 40

Deed of Trust

Back 40

• Debtor = Trustor & Creditor = Beneficiary
• Trustor gives the deed of trust to a third-party trustee who who is usually closely connected with the beneficiary
• In the event of default, the trustee will foreclose the deed of trust either by judicial or non-judicial sale. "Power of sale" clauses allow the trustee to advertise, give appropriate notices, and conduct the sale personally.

Front 41

Instalmment Land Contract

Back 41

• A purchaser (debtor) agrees to make regular payments to the vendor until a full contract prices paid, at which time the vendor will give a deed transferring title to the purchaser.
• In the event of default, the contract usually has a forfeiture clause, which allows the vendor to retake the land and retain the payments already made, but the purchaser may demand a judicial sale if they have substantial equity.

Front 42

Absolute Deed as Mortgage

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• Transfer of deed for a loan will be treated as a mortgage if a court concludes by C&C evidence that the deed was really given as security for a loan; evidence includes financial distress, failure to receive fair value, continued possession, promise of return of title upon repayment.

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Rights and interest under security device

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• Lien Theory of Mortgages (debtor-mortgagor has title & right to possession up until foreclosure)

Front 44

Transfers by Mortgagors/Debtors

Back 44

All parties to a mortgage or deed of trust can transfer their interests, normally by deeding the property. Grantee takes subject to the mortgage
• Assumption (by signing an assumption agreement, grantee becomes primarily liable & mortgagor is secondarily liable & can demand reimbursement from or foreclose on grantee)
• No Assumption (mortgagor is solely liable on debt & may foreclose but may not seek reimbursement)
• Due on Sale Clauses (if included, requires mortgagee's consent to transfer mortgage from mortgagor to grantee; valid under federal law is made by institutional mortgage lenders i.e. not private parties)

Front 45

Foreclosure

Back 45

In the event of a default, ME has the choice of (a) foreclosing and terminating the MR’s interest in the property, or (b) suing on the note.
• NOTE: If sale is less than debt, ME can obtain a deficiency judgment but not if it was under a power of sale foreclosure of a deed of trust, or after forfeiture of a real estate installment contract.

Front 46

Right of Redemption

Back 46

If the MR defaults, the ME can accelerate the debt and the MR now owes the full balance. If MR instates foreclosure proceedings, the MR can pay off the debt and redeem the land up to the moment the foreclosure sale begins (equity of redemption).
• Borrower on deed of trust can reinstate the loan, without acceleration, by paying arrearages plus interest and costs at any time up to 11 days prior to the foreclosure sale (does not apply to judicial foreclosures)
• Statutory right of redemption exists after a judicial foreclosure: within 12 months after the sale the MR or junior lienors may redeem by paying the price bid at the sale plus interest and costs. Shortened to 8 months if the property is non-agricultures and ME waives the right to a deficiency judgment.
o This cannot be waived!

Front 47

Priorities

Back 47

Usually determined by chronological order. Foreclosure terminates the junior interests, but buyer at sale takes subject to senior interests
Modification of priority
• Failure to record, if ME1 fails to record and ME2 records and qualifies as a BFP.
• Subordination agreement: May enter agreement to subordinate its priority.
• Purchase Money Mortgages: Purchase money mortgages to the vendor are presumed to have top priority, followed by next PMMs to other mortgagees.
• Optional Future Advances: In WA, future advances retain the priority of the original mortgage as against any intervening lien.

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Definition of Personal Property

Back 48

Real property includes land and all structures that are permanently attached to it, whereas personal property is all property that is moveable (not permanently attached).
• Includes leases for a term and fixtures if severed.

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Ownership

Back 49

• Dominion & ctrl (actual or constructive) & intent to assert ownership
• Wild animals are state property until captured or killed, but revert to state ownership upon escape

Front 50

Found Property

Back 50

• Lost (accidentally & involuntarily parted with & does not know where to find it; finder entitled to possession except against true owner except landowner entitled if finder was trespassing, place of finding was highly private, finder was landowner's employee, or found in soil)
• Mislaid (intentionally placed somewhere and thereafter forgotten; landowner is entitled to possession except against the true owner)
• Abandoned (owner voluntarily intended to give up both title & possession; finder gets title)
Duty of Finder or Landowner (quasi-bailee, must take due care, & must try to find true owner if he knows or has reasonable means of finding)
Acquiring title (after SOL runs or sufficient time has passed that the item appears abandoned, possessor gets title)

Front 51

Accession

Back 51

• Addition of value to property by expenditure of labor
• Trespasser cannot recover
• Remedies (either conversion damages i.e. value of original plus consequential damages or replevin i.e. return of the chattel unless it has been completely changed by the accession e.g. logs to furniture)

Front 52

Confusion

Back 52

Intermixture of personal property owned by different persons so as to be indistinguishable;
• known contributions result in taking in proportion
• unknown contributions w/ innocent confusion causes to share equally,
• and unknown contributions with fault puts burden of identifying portion on the liable party)

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Adverse Possesion of Personal Property

Back 53

OCEAN (3 yrs SOL)

Front 54

Gifts Inter Vivos

Back 54

Voluntary transfer of property by one to another without any consideration or compensation
• Intent (donor must wish to make an effective gift; promise to give in the future is not a gift, but vesting title with reserved possession is )
• Delivery (Actual, Constructive e.g. key, & Symbolic deed of gift containing evidence of donative intent, description of subject matter, & signature)
• Acceptance (presumed if beneficial, refused by affirmative act)

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Gifts Causa Mortis

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In contemplation of death, same requirements as above, only applies to personal property, must be in contemplation of imminent death & must die before revoking the gift, recovery automatically revokes.

Front 56

Bailements

Back 56

legal possession (consensual physical custody & intent to exercise control) by the bailee of personal property owned by the bailor with title remaining with bailor” can be voluntary & involuntary.
• Bailee's Rights (during bailment, bailee has exclusive right to possession, even against bailor)
• Bailee's Duties
o slight negligence if for the benefit of the bailee,
o gross negligence if for the benefit of the bailor,
o ordinary negligence if for mutual benefit
o Strict liability for departing from terms of the bailment.
• Bailor's Rights Against Bailee (replevin, trover, or damages)

Front 57

Bailment (rights against third parties

Back 57

Rights against Third Parties (either but not both EXCEPT bailment for definite time means bailor cannot maintain replevin or trover until bailment has concluded)

Front 58

Bailee's disclaimers of liability

Back 58

Disclaimers of Liability (professional bailee cannot evade negligence & nonprofessional factors inc type of business, importance of service, general availability, bargaining power, standardized contract, control by bailee; hotels may limit liability)