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61 Cards in this Set
- Front
- Back
Rule Against Perpetuities Applies to.....
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Contigent Remainders
Executory Interests Class Gifts Powers of Appointment Options to Purchase (Fee Options) Rights of First Refusal |
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Class gifts
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Vests when the class is closed
Example: "Such of her children as should be living at her death" |
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Restraint on Alienation
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Invalid against fee interests
"provided that no child shall sell, mortgage, or transfer interest prior to age 20" |
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Right of First Refusal
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Right of first refusal must be excercised within 21 years after the date it was created
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Concurrent Estates - Joint Tenancy (JT)
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1. 4 unities - time, title, interest, & possession
2. Survivorship - estate passes to the survivior |
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Severance of JTs
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JT becomes a Tenancy in Common
1. Conveyance - severes the JT 2. Mortgage under title theory 3. Lease 4. Partition action 5. Execution sale by judgment creditor |
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Tenancy in Common
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1. Only one unity - possession
2. No survivorship - co-tenants may devise their interest |
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Pending Partition Action
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A partition action does not severe JTS while pending - only while they are finalized.
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Restricting the Right to Partition
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Reasonable use restrictions on the right to partition are valid
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Estoppel by Deed/After-Acquired Property
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This is when someone who doesn't own the property tries to convey it. But then the right owner gives it to A. Then it springs through him and vests in the B.
B wins. So A to B O to A. |
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License
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A revocable personal privilege to enter the servient tenement of the licensor without liability for trespass
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Profit
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The right of one person to come onto the land of another and take some part thereof
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Easements
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A non-possessory interest in the use of the land of another
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Easments in Gross
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1. No dominant tenement
2. Do not run with the land |
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Easements Appurtenant
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1. 2 parcels - benefitted-dominant (dominant is the land who the easment benefits)
burdened-servient (land where the easment takes place) 2. Do run with the land |
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Termination of an Easement
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1. Merger - unity of ownership
2. Written release 3. End of necessity 4. Abandonment: Requires Intent and a Physical Act (mere non-use does not termintate) |
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Creation of an Easement
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1. Expressely in writing
2. Reservation in grantor 3. Estoppel 4. Implication (necessity) 5. Prescription - (like adverse possession) |
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Prescriptive Easement
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Can pass to other people where parties are in privity
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Duties of Dominant Tenant
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Right to inspect, maintain, and improve the easement, and there is no liability for damages caused through reasonable repair and maintenance
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Easement by Implication/Necessity
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1. No writing
2. Common grantor 3. Quasi-Easement - land has to be adapted for such use 4. Necessity a. "Reasonable" where the grantee recieves the dominant tenement b. Absolute/strict where the grantor retains the dominant tenement. |
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Covenants vs. Servitudes- Which is it?
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If the remedy is damages, it is probably a covenant. If you are looking for injunction, probably a servitude. Covenants are also usually between two people, whereas servitudes are usually developer/common development schemes type questions.
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Covenant
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1. Horizontal Privity- an interest must pass from the covenantor to covenantee.
"O to A half of Blackacre" 2. Vertical Privity- relationship among successors in interest O to X A to Y X and Y are in vertical privity 3. Touch and Concern - restriction must effect the land itself. 4. Intent - that the restriction run with the land 5. Writing |
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Equitable Servitude
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1. Notice - ANY kind of notice that the land is subject to a restriction
2. Intent 3. Touch and Concern 4. Writing |
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Takings
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Private Property can be taken by:
1. Eminent Domain 2. Inverse Condemnation 3. Police Power |
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When Do You Get Paid as a Taking
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1. Eminent Domain
2. Inverse Condemnation |
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Constructive Eviction
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Makes the premises unhabitable and releases the duty to pay rent.
Tenant must move out |
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English rule
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LL has a duty to deliver possession at the lease inception
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American rule
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Tenant 2 has a cause of action against holdover Tenant 1.
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Fixtures
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A fixture is a chattel which has become real property and is not removeable
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Trade Fixture
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Chattel annexed to land by the tenant for pecuniary gain - removeable before the lease expires unless an accession occurs. An accession is where a chattel loses its identity as a trade fixture and becomes an irremoveable part of the realty (I beam, balcony, loft)
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Subjacent and Lateral Support
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Landowner is strictly liable if his excavation causes unimporved adjacent land to subside
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Growing Crops
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Classified as personal property and will pass to the grantee upon sale of the land
Statute of Frauds does not apply But if foreclosure = get crops during foreclosure |
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Water Rights- Prior Appropriation
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First in time, first in right: Goal: maximum benefcial use
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Riparian Rights to Water
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Domestic use is superior to agricultural use
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Adverse Possession
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1. Physical element
a. Actual and exclusive (cannot be shared) b. Open and notorious 2. Mental element - adverse and hostile (cannot be permissive) 3. For the statutory period |
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Adverse Possessor Burden
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Must prove all elements by a preponderance
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Ouster
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Wrongful exclusion from possession
There can be no adverse possession amoung co-tenants absent ouster |
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Boundary Line Agreement
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Valid if:
1. Parties are unaware of true boundary line. 2. Parties agree as to location 3. Possession that conforms to the agreement. Judicial notice is given to the boundary if these elements are present. |
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Rules of Construction
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Monuments prevail over courses and distances (NSEW). Monuments are objects on the ground (natural or artificial).
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Statute of Fraud
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1. Identity of parties
2. Identify of subject matter 3. Consideration 4. Signature of seller Exception: Part Performance 1. Possession AND 2. Improvements and or Payment |
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Delivery of a Deed
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1. Proper execution
2. Intent |
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Forged Deeds
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Transfers nothing
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Equitable Conversion Common Law (majority)
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Risk of loss for casualty is placed on the buyer during the executory period (time from date of contract to closing).
The buyer is the equitable owner of the land, whereas the seller, who holds legal title, is the equitable woner of the right to the full purchase price. |
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Uniform Vendor and Purchaser's Risk Act (minority)
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Risk of loss is on buyer only if has legal title or possession of the property
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Marketable Title
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Every contract for the sale of land contains an implied warranty of marketable title
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Encumbrances
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1. Mortgage
2. Lien 3. Easement 4. Lease 5. Equitable Servitude 6. Zoning violation 7. Future Interest |
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Bona Fide Purchases (BFP)
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1. Pays value
2. Takes in good faith 3. Takes without notice |
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Recording Statutes - Types of Jurisdictions
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1. Race - 1st to record wins
2. Notice - Last BFP wins 3. Race- Notice - 1st BFP to record wins |
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Mortgage
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An interest in land created in writing providing security for the performance of a duty or the payment of a debt
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Foreclosure
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The method by which the security is applied to satisfy the debt
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Deficiency Judgment
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Allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt
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Mortgagee
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2 causes of action
1. In personam on the debt 2. In rem on the security |
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Recording Statutes - Types of Jurisdictions
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1. Race - 1st to record wins
2. Notice - Last BFP wins 3. Race- Notice - 1st BFP to record wins |
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Mortgage
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An interest in land created in writing providing security for the performance of a duty or the payment of a debt
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Foreclosure
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The method by which the security is applied to satisfy the debt
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Deficiency Judgment
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Allowed where the proceeds of the foreclosure sale are insufficient to satisfy the debt
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Mortgagee
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2 causes of action
1. In personam on the debt 2. In rem on the security |
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Rights of a Grantee
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A grantee who assumes a mortgage is personally liable.
A grantee who takes "subject to" the mortgage is not personally liable. |
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Subject to the Mortgage
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Where the deed makes no reference to the mortgage, it is presumed that the grantee takes "subject to" the mortgage and is not personally liable
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Purchase Money Mortgage
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A purchase money mortgage takes priority over other prior mortgages, regardless of recording statutes. The PMM MUST be recorded.
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Exoneration
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The right of a surety to compel a mortgage to proceed first against the person or property primarily liable
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