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119 Cards in this Set
- Front
- Back
Present Estates: Fee Simple Absolute
formation language and estate characteristics |
formation language: "to A"
characteristics: - absolute ownership of potentially infinite duration - freely devisable (passable by will) - descendible (pass by statutes of intestacy) - alienable (transferable during holder's lifetime) - no future interest; can endure forever |
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Present Estates: Fee Tail
formation language and estate characteristics (note this estate does not exist in NY) |
formation language: " to A and the heirs of his body"
characteristics: - pass directly to lineal blood descendent no matter what - today, this probably creates a fee simple absolute |
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Present Estate: Defeasible Fee
Notes |
- mere words of hope/intention are insufficient to create defeasible fee
- courts will not find defeasible fee absent clear durational language - an absolute restraint on alienation is void; must have reasonable time limit and purpose |
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Defeasible Fees: Fee Simple Determinable
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formation: "to A for so long as" or "to A during" or "to A until"
characteristics: - devisable (pass by will) - descendible (pass by intestacy law) - alienable (transferable during holder's lifetime) - always subject to the condition future interest - possibility of reverter FSDPOR |
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"To A" or "To A and his heirs"
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fee simple absolute
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"To A and the heirs of his body"
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fee tail
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" To A so long as" or "To A until"
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Fee Simple Determinable (FSDPOR)
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"To A but if X event happens, grantor reserves the right to reenter and retake"
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Fee Simple subject to condition subsequent
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"To A but if X event occurs, then to B"
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Fee simple subject to an executory limitation
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"To A for life" or "To A for the life of B"
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life estate
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Defeasible Fee: Fee Simple subject to condition subsequent
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"to A but if X event occurs, grantor reserves right to reenter and retake"
characteristics: - devisable, alienable, descendible - not automatically terminated but can be cut short if condition occurs future interests: - right of reentry synonymous w/ power of termination in NY: power of reacquisition |
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Defeasible Fee: Fee Simple subject to executory limitation
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"to A but if X event occurs then to B"
characteristics: - alienable, devisable, descendible - automatic forfeiture upon broken condition future interest: - shifting executory interest |
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Life Estate
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"to A for life" or "To A for life of B"
- must be measured in explicit life time terms and never years characteristics: - devisable, descendible, alienable - entitled to ordinary use and profit from land - must not commit waste future interests: - reversion in grantor; if held by 3rd party, it's a remainder |
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3 Types of Waste
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voluntary/affirmative: overt conduct that causes drop in value (willful acts of destruction
natural resources: must not consume or exploit on property unless an exception applies PURGE *prior use (but no new mines) * reasonable repair * granted right expressly * exploitation (only suitable use) - permissive waste/neglect: land is allowed to fall into disrepair or there is pattern of neglect ameliorative waste: acts that will enhance property value absent consent from all future interests |
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Ameliorative Waste
NEW YORK ONLY |
- may make reasonable improvements unless future interest holders object
- limited to sort of change a prudent honor would make |
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Future Interest Retained by Grantor
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- possibility of reverter
(only fee simple determinable) - right of entry (only fee simple subject to condn subsequent) - reversion (arises where grantor transfers a lesser estate than she starts with) |
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Future Interest Retained by a Transferee: Remainder
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- remainder: future interest created by a grantee that is capable of becoming possessory upon natural expiration of preceding estate
- always accompanies preceding estate w/known fixed duration (so never defeasible fees) |
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Future Interest Retained by a Transferee: Vested Remainders, generally
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- created in ascertained person and no condition precedent
- 3 types * indefeasibly vested remainder * vested remainder subject to complete defeasance * vested remainder subject to open |
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Future Interests Retained by Transferee: Vested Remainder: Indefeasibly vested remainder
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- holder of this remainder is certain to acquire estate in future w/o conditions attached
"to A for life, remainder B" where if B predeceases A, B interest passes by will |
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Future Interests Retained by Transferee: Vested Remainder Subject to Complete Defeasance
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- taking not subject to cond precedent but right to possession could be cut short because of condition subsequent
- if condn'l language appears before language creating remainder, it is condn precedent |
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Future Interests Retained by Transferee: Vested Remainder Subject to Open
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- remainder is vested in a group of takers at least one of whom is qualified to take
- each class member's share is subject to partial diminution bc addn'l takers can still join - class has closed whenever any member can demand possession - womb rule: child of B in the womb at A's death will become member of class |
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Future Interests Retained by Transferee: Contingent Remainders
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created in unascertained person OR subject to condition precedent or both
- unascertained: unborn or living person's heirs |
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Future Interest Generally Defined
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remainder: future interest that accompanies a preceding estate w/known fixed duration
* vested remainder: created in ascertained person and no condition precedent * contingent: unascertained or condition precedent executory interest: future interest that cuts short interest of another person *springing: cuts short grantor or his heirs *shifting: cuts short someone else |
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Rule Against Perpetuities: the rule
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- certain kinds of future interest are void if there is any possibility that the given interest may vest more than 21 years after death of measuring life
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Rule Against Perpetuity:
what does it potentially apply to |
- contingent remainder
- executory interests - certain vested remainders subject to open |
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Rule Against Perpetuity
does not apply to what: |
- any future interest in O, the grantor
- indefeasibly vested remainder - vested remainders subject to complete defeasance |
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Rule Against Perpetuity
Questions to Ask |
- What conditions precedent to vesting of supsect future interest
- Find Measuring Life - Will we know w/certainty w/n 21 years of the death of measuring life if future interest holders can take? |
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Rule Against Perpetuity
2 bright line rules |
- a gift to an open class that is conditioned on members surviving to an age beyond 21 violates RAP
- many shifting executory interests violate RAP, particularly those w/no limit on the time w/n which it must vest charity to charity exception |
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Rule Against Perpetuity
Reform: Wait & See Doctrine (incl NY Distinction) |
- validity of any suspect future interest is determined on basis of the facts as they know exist at the end of measuring life
rejected by New York, except for charitable trusts and powers of appointment |
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Rule Against Perpetuity
NEW YORK ONLY Age Reduction |
- where an interest would be invalid bc it is made to depend on any person's having to attain an age in excess of 21 years, the age contingency is reduced to 21
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Rule Against Perpetuities
NEW YORK ONLY Suspension Rule for Alienation |
- absolute power of alienation is suspended when there are no persons in being by whom an absolute fee or estate in possession can be conveyed or transferred
- for conveyance to be valid, must be persons in being who could join in conveyance of the full fee simple title w/n lives in being plus 21 years - violated whenever there is a life estate in trust in an unborn person or in a class that could include unborn children |
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Joint Tenancy: Definition & Characteristics
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- 2 or more own w/right of survivorship
- right of survivorship: on death, share goes automatically to survivor - alienable but not devisable or descendible |
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Joint Tenancy: Creation
T-TIP (incl NY Distinction) |
T-TIP
Time-same Title-same instrument Identical shares Possession of whole - grantor must clearly express right of survivorship - use of strawman to convey NY: eliminates straw, ok to convey directly to oneself and another as JT |
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Joint Tenancy: Unilateral Severance & Sale
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severance and sale: JT can sell or transfer her interest during her lifetime w/o the knowledge and consent of other JT
* one tenant severs the JT as to seller's interest-->buyer becomes tenant in common * if more than 2 JT, JT remains intact as between the other non-transferring tenants |
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Joint Tenancy: Severance and Partition
SPaM |
- by voluntary agreement
- partition in kind: court action for physical division - forced sale: court action to sell land, divide proceeds proportionally if w/n best interest of all parties |
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Joint Tenancy: Severance and Mortgage
SPaM (incl NY Distinction) |
- minority: if one JT executes mortgage or lien on his share, this severs JT as to that now encumbered share
- majority: JT execution of mortgage on his interest does not sever JT NY follows majority, known as lien theory |
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Tenancy in Common: Definition & Characteristics
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- 2 or more own w/no right of survivorship
- each co-tenant owns an individual part and has a right to possess the whole - each interest is descendible, devisable and alienable |
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Tenancy in Common: Rights & Duties of Co-Tenants as to Possession
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- if one co-tenant wrongfully excludes another CT from possession, he has committed wrongful ouster
- absent ouster, one CT is not liable to other CT for rent - CT who leases all or part of premises must account to other CT and share any rent - absent ouster, one CT in exclusive possession for statutory adverse possession period may not acquire title to exclusion of others |
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Tenancy in Common: Rights & Duties of Co-Tenants
Implied Ouster NEW YORK ONLY |
- co-tenant may acquire full title by AP if he is in exclusive possession for 20 continuous years
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Tenancy in Common: Rights & Duties of Co-Tenants: Care & Fees
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- carrying costs: each CT is responsible for his fair share of carrying costs based on individual share (taxes, interest payments)
- repairing CT enjoys right of contribution for necessary repairs, provide she told other CT of need - no right of contribution for improvements during life of co-tenancy * at partition, improving CT is entitled to receive a credit equal to any increase in value * improving CT also bears full liability for any drop in value - CT must not commit waste (voluntary, permissive, ameliorative) |
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Landlord-Tenant Law: Tenancy for Years: Duration & Termination
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duration: lease for fixed period of time (termination date known)
* if greater than 1 year, must be in writing termination: no notice required, date stated at onset |
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Landlord-Tenant Law: Periodic Tenancy: Duration
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- lease continues for successive intervals til L or T give proper notice to terminate
- can be created expressly - or by implication: * land is leased w/no mention of duration but provision is made for payment at set intervals * an oral term of years where T sends L a check and L accepts it * holdover in residential lease that is accepted by L, measured by way rent is tendered |
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Landlord-Tenant Law: Periodic Tenancy Termination
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- requires notice, usu written, at least equal to length of period itself unless otherwise agreed
- must end at conclusion of natural lease period |
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Landlord-Tenant Law: Tenancy at Will Duration
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- tenancy for no fixed duration
- unless parties expressly agree to tenancy at will, regular payment creates implied periodic tenancy |
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Landlord-Tenant Law: Tenancy at Will: Termination
(incl NY Distinction) |
- may be terminated by either party at any time w/reasonable demand to vacate typically needed
NY: L terminating tenancy at will must give at least 30 days notice |
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Landlord-Tenant Law: Tenancy at Sufferance
(incl NY Distinction) |
- created when T has wrongfully heldover past expiration of lease
- lasts only until either L evicts or decides to hold T to a new tenancy NY: L acceptance of rent subsequent to expiration of term will create an implied month to month periodic tenancy |
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Tenant Duties: T Liability to 3rd Parties
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- T is responsible for keeping the premises in reas good repair
- T is liable for injuries sustained to 3rd party guests, even if L promised to make all repairs ( T may seek indemnification from L) |
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Tenant Duties: T Duty to Repair
when lease is silent |
std: maintain premises and make ordinary repair
- T must not commit waste, incl removal of fixtures which constitute permissive waste * fixture is a once moveable chattel that by virtue of its annexation to property, objectively shows an intent to permanently improve realty (heating system, custom storm windows) * fixtures typically pass w/ownership of land but any express agreements will control |
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Tenant Duties: T Duty to Repair
express covenant in lease by T |
- T may terminate lease when destruction is not T's fault
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Tenant Duties: T Duty to Repair
Destruction: NEW YORK ONLY |
- absent tenant's express undertaking to restore the premises in event of destruction, if premises are destroyed thru no fault of T, T may quit premises and surrender possession w/o any further duty to pay rent
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Tenant Duties: T Duty to Pay Rent
Breach while in Possession |
L can:
- evict through courts: still entitled to rent from T until T vacates * T becomes tenant in sufferance - continue relationship & sue for rent - self help is not an option and will result in civil and criminal liability (changing locks, removing property) |
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Tenant Duties: T Duty to Pay Rent
Breaches and is out of Possession (incl NY Distinction) |
L Can (SIR)
- surrender: choose to treat T abandonment as surrender * T has shown by words or actions that she wants to give up lease * if unexpired term is greater than 1 year, surrender must be in writing - Ignore abandonment and hold T responsible for upaid rent (only avail in minority of states) - Relet premises on T behalf and hold him liable for any deficiency * L must try to mitigate NY: no duty to mitigate when T abandons property |
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Landlord Duties: Duty to Delivery Possession
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majority: L puts T into physical possession of premises
* if at start of lease, prior tenant is still in possession, L has breached minority rule: requires only transfer of legal possession |
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Landlord Duties: Implied Covenant of Quiet Enjoyment
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- T has right to quiet use & enjoyment of premises w/o interference from L
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Landlord Duties: Implied Covenant of Quiet Enjoyment
Breach by Constructive Eviction |
- substantial interference due to L action or failure to act
- Notice: T must give L notice of problem and L must fail to respond meaningfully - Goodbye: T must vacate w/n reas time after L fails to fix problem |
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Landlord Duties: Implied Covenant of Quiet Enjoyment
Acts of Other Tenants |
- L generally not liable, except:
* L must not permit a nuisance * L must control common areas |
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Landlord Duties: Implied Warranty of Habitability (non-waivable)
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std: premises must be fit for basic human dwelling
- T entitlement when warranty is breached: * move out and terminate lease * repair and deduct from future rent * reduce or withhold all rent until court determines fair rental value (must place w/h rent in escrow) *remain in possession, pay rent and affirmatively seek money damages |
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Landlord Duties: Retaliatory Eviction
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- if T lawfully reports L for housing code violations, L is barred from penalizing T
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Assignment & Sublease: General
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- T may freely transfer his interest in whole (assignment) or in part (sublease) absent some prohibition in lease
- once L consents to one transfer by T, L waives right to object to future transfers unless L expressly reserves that right |
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Assignments & Subleases General
NEW YORK ONLY |
ASSIGNMENTS
- unless lease provides otherwise, a residential T may not assign w/o L written consent - L can unreasonably w/h consent to assign and T sole remedy is to seek release from lease SUBLEASE - T in residential bldg w/4 or more units, has right to sublet subject to L written consent - consent to sublease cannot be unreasonably withheld |
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Assignments & Subleases
the assignment and privity |
- L & T2 are in privity of estate
(liable to each other for all the covenants in the orig lease that run w/land) - L & T2 are not in privity of contract (unless T2 assumed all promises) - L and T1 are no longer in privity of estate but remain in privity of contract (L and T1 are secondarily liable to each other) - L can always proceed against direct wrongdoer and against T1 |
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Assignments & Subleases
the sublease and privity |
- L and T2 are neither in privity of contract nor privity of estate
- T2 is responsible to T1 and vice versa - original relationship between L and T1 remains |
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Caveat Lessee: Let Tenant Beware
L duty to make premises safe (CLAPS) |
L under no duty to make premises safe, except:
- common areas must be maintained - latent defects: L must warn T of hidden defects that L knows about or should know about (duty to warn, not repair) - assumption of repair: L who voluntarily makes repairs must complete them w/reas care - public use rule: L who leases public space is liable for any defects on the premises where * L should know bc of nature of defect and length of lease that T will not repair - short term lease of furnished dwelling: L is liable for any defect on site which proximately injures T |
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Servitudes: Easements: Defined
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- grant of non-possessory interest that entitles holder to some form of use or enjoyment of another's land
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Servitudes: Easements
Affirmative or Negative |
- most are affirmative: right to do something on land
- negative easements entitle holder to prevent servient landowner from doing something that would otherwise be permissible * light * air * support * stream water from artificial flow (some states add scenic view) - neg easements can only be created expressly and in writing |
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Servitudes: Easements
Appurtenant to land or held in gross |
- appurtenant: benefits holder in his physical use or enjoyment of property
* takes 2 parcels of land: dominant tenement derives benefit and servient tenement bears burden - easement in gross confers upon holder only some personal or pecuniary advantage not related to use or enjoyment of land * only takes 1 * common ex: right swim in another's pond, right to lay power cord on another's land |
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Servitudes: Easements
Transferability |
- appurtenant easements pass automatically w/dominant tenement, regardless of whether it's mentioned in conveyance
* burden of easement appurtenant also passes automatically w/servient estate (unless new owner is BFP w/o notice) - easement in gross does not transfer unless it is for commercial purposes |
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Servitudes: Easements
Creation of Affirmative Easements PING |
* prescription: easement acquired by satisfying elements of adverse possession
* implication: previous use was apparent and parties expected use to survive division bc it is reasonably necessary for use and enjoyment of land * necessity: landlocked setting * grant |
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Servitude: Easements
Termination: END CRAMP |
- Estoppel: servient owner materially changes his position in reas reliance on easement holder's assurances that easement will no longer be enforced
- Necessity ends unless created by express grant - Destruction of servient land, other than through willful conduct of owner - Condemnation, as in eminent domain - Release by easement holder to servient owner - Abandonment: easement owner demonstrates by phys action an intent never to use easement again (mere non-use or words insufficient) - Merger: easement extinguished if title to easement and title to servient land become vested in same person; does not automatically revive upon separation - Prescription: servient owner extinguish by interfering w/it in accordance with adverse possession elements |
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Servitudes: Licenses
Define/Characteristics |
- mere privilege to enter another's land for some delineated purpose
- freely revocable at will of licensor absent estoppel claim * estoppel bars revocation only when licensee has invested substantial money and/or labor in reasonable reliance on continuation of license |
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Servitudes: Profit
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- entitles holder to enter servient land and take from it the soil and substance
- shares all rules of easement |
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Servitudes: the Covenant
define |
- promise to do or not do something related to land
- unlike easemetn because it is not a grant of property interest, only a contractual limitation or promise - if P is seeking money damages: covenant; injunction: equitable estoppel |
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Servitudes: Covenants
does covenant run with land (burden and benefit) elements necessary for burden to run |
- Writing: orig promise must have been in writing
- Intent of orig parties for burden to run - Touch & concern land: promise affects parties legal relations as land owners - horizontal and vertical privity * horizontal: nexus bn orig A and B; requires succession of estate (difficult to meet) * vertical: nexus bn A and A-1; requires some non-hostile agreement (only absent if A-1 acquired interest via AP) - Notice by A-1 of promise when she took |
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Servitudes: Covenants
does covenant run with land (burden & benefit) elements necessary for benefit to run |
- writing
- intent - touch & concern - vertical privity only (non hostile nexus between B and B1) |
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Equitable Servitudes: define and creation
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- promise that equity will enforce against successors; remedy of injunctive relief
creation: - writing - intent of orig parties - touch & concern land - notice by assignee of burdened land of promise |
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Equitable Servitude: implied equitable servitude
general or common scheme doctrine (incl NY Distinction) |
- when sales began, subdivider had a general scheme of residential development which incl D lot or
- D lotholder had notice of promise contained in prior deed * actual * inquiry * record (inquiry and record are constructive notice) NY: subsequent buyers dont have record notice of contents of prior deeds transferred to others by common grantor |
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Equitable Servitudes: Equitable Defenses to Enforcement
changed conditions |
- changed circumstances allowed by party seeking release must be so pervasive that entire area has changed
- mere pockets of limited change not good enough |
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Adverse Possession: Elements
(incl NY Distinctions) |
- Continuous: uninterrupted for statutory period (10 years in NY)
- Open & Notorious: sort of possession that owner would make under circumstances (ie subletting) - Actual: entry must be literal - Hostile: does not have true owner's permission - State of Mind: for multistate, irrelevant * NY: possessor must have good faith belief that the land he is occupying is his |
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Adverse Possession: Tacking
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- one AP may tack on to his time w/the land his predecessor's time, so long as there is privity
- not allowed when there has been ouster as ouster defeats privity |
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Adverse Possession: Disabilities
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- SoL will not run against a true owner who is afflicted by a disability at the INCEPTION of the AP
(insanity, infancy imprisonment) |
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Land Conveyance of Real Estate:
The Land Contract: Standard |
- contract must be in writing, signed by party to be bound
- must describe blackacre and include consideration - if land recited is more than actual size of parcel, purchaser is entitled to specific performance & pro-rata reduction in purchase price |
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Land Conveyance of Real Estate
Land Contract: Doctrine of Partial Performance |
- equity decrees specific performance on an oral contract for sale of land where (2 of 3 met):
* B takes possession of blackacre * B pays all or part of purchase price * B makes substantial improvements |
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Land Conveyance of Real Estate
Land Contract: Risk of Loss (MBE) |
- once contract is signed, B owns land subject to the condn that he pays purchase price at closing
- if in the interim (bn contract and closing), Blackacre is destroyed thru no fault of either party, B bears the risk of loss unless K says otherwise |
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Land Conveyance: Real Estate
Land Contract: Risk of Loss NEW YORK ONLY |
- as long as buyer is w/o fault, risk of loss remains with seller until buyer has title or has taken possession
exception: if buyer takes possession, risk of loss shifts to buyer note: absent an agreement to the contrary, seller's insurance proceeds are personal and will not be recoverable by the buyer |
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Land Conveyance: Real Estate
Land Contract: Implied Promise of Marketable Title |
- seller promises to provide marketable title at closing
* free from reas doubt (litigation/lawsuit) * free of adverse possession, even a part (must provide good record) * free of encumbrances unless buyer has waived them (viol of bldg codes dont count) - seller may also satisfy at closing * free of zoning violations |
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Land Conveyance: Real Estate
Land Contract: Implied Promise of Truth |
- seller promises not to make any false statement of material fact
majority: seller also liable for failure to disclose latet material defects general disclaimers of liability do not excuse liability for fraud or failure to disclose |
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Land Conveyance: Real Estate
Land Contract: Implied Warranty of Fitness or Habitability |
- land contract contains no such warranties
exception: - implied warranty of fitness and workmanlike construction applies to the sale of anew home by a builder vendor |
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Land Conveyance: Real Estate
Closing/Deed: Lawful Execution Requirement |
- the deed becomes the operative document and legal title passes from seller to buyer, upon lawful execution and delivery
lawful execution: - in writing, signed by grantor but no consideration necessary - descr of land need only be unambiguous, not perfect |
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Land Conveyance: Real Estate
Closing/Deed: Delivery Requirement |
title passes from seller to buyer upon lawful execution and delivery
delivery: - satisfied when grantor physically transfers deed to grantee * permissible to mail, use an agent or messanger * does not req. actual phys transfer of deed itself * test is solely one of present intent - recipients express rejection of deed defeats delivery - oral conditions gen will drop out - delivery by escrow is OK and once condns are met, title passes automatically |
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Land Conveyance: Real Estate
Closing: Types of Deed: Quitclaim |
- contains no covenant
- grantor isnt even promising he has title to convey - does implicitly promise to provide marketable title at closing |
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Land Conveyance: Real Estate
Closing: Types of Deed: General Warranty (best) |
- warrants against all defects in title, incl those due to grantor's predecessor
- contains 6 covenants (3 present, 3 future) * covenant of seisin (owns estate) * covenant of right to convey * covenant against encumbrances * covenant for quiet enjoyment * covenant of warranty to defend grantee against lawful claims of title * covenant for future assurances (do whatever needed to protect flawed title) |
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Land Conveyance: Real Estate
Closing: Types of Deed: Statutory Special Warranty |
grantor makes 2 promises and only on behalf of himself:
- has not conveyed Blackacre to anyone other than grantee - blackacre is free from encumbrances made by grantor |
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Recording System
notice statutes and winning |
- if B is a BFP in race notice jdxn, B wins regardless of whether or not he records before A
- if B is a BFP in race-notice jdxn, B wins if he records before A (NY is a race-notice jurisdiction) - in either jurisdiction, B status as subsequent BFP will be defeated if A had promptly and properly recorded before B takes |
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Recording System: Recording Act
who is a bonafide purchaser |
- purchases Blackacre for value
(only substantial pecuniary consideration required, bargains ok) - without notice that someone else got there first *actual, inquiry or record notice |
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Recording Act: BFP: Notice
three types |
- actual notice
- inquiry: B is on notice of whatever an exam of blackacre would show bc buyer has duty to inspect before transfer of title - record: whatever deeds are properly recorded in chain of title |
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Recording Statutes: Chain of Title Problems: Shelter Rule
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- one who takes from a BFP will prevail against any entity that the transferor or BFP would have prevailed against
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Recording Statutes: Chain of Title Problems: Wild Deed
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- deed entered on the records w/ grantor unconnected to chain of title
- incapable of giving record notice |
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Mortgages: Define
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- conveyance of security interest in land intended by parties to be collateral for repayment of debt
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Mortgages: Equitable Mortgage
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- where Blackacre is collateral for debt, O gives creditor deed to Blackacre that is absolute, rather than executing a note or mortgage deed
- if creditor then proceeds to sell blackacre to BFP, BFP will own land and debtor only recourse is to proceed against creditor for fraud and recover sale proceeds |
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Mortgages: Party Rights
|
- unless and until foreclosure, debotr has right to possess realty
- creditor has lien ( right to look to blackacre in event of default) |
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Mortgages: Transferability of Interest: Creditor and Holders in Due Course
|
creditor can transfer by:
- endorsing note and delivering to transferee who becomes holder in due course - to be holder in due course of note, * note must be negotiable and made payable to named creditor * original note must be endorsed, signed by named creditor * original note must be delivered to transferee and taken in good faith w/o notice of illegality |
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Mortgages: Holder in Due Course subject to real defenses
|
- material alteration
- duress - fraud in factum - incapacity - illegality - infancy - insolvency |
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Mortgage: Transferability: Debtor Rights on Mortgaged Land
|
- if debtor sells, lien remains on land so long as mortgage has been properly recorded
(later buyer subject to lien) - if buyer has assumed the mortgage, both debtor and buyer are personally liable, with buyer as primarily liable - if buyer takes "subject to mortgage" buyer assumes no personal liability and only debtor is liable *however, if debtor doesnt pay, mortgage can be foreclosed |
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Mortgage: Foreclosure: Modification of Existing Lien
|
- where landowner enters into modification agreement w/senior creditor that makes mortgage more burdensome, junior mortgage is given priority over the modification
|
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Mortgage Foreclosure: Impact on Various Creditor Interest
|
- jr. lienholders will be paid in descending order w/proceeds from sale, assuming funds are leftover after full satisfaction of superior claims
- jr lienholders not satisfied can proceed w/a deficiency judgment against debtor but not Blackacre - if a necessary party is not joined, his interest remains on the land |
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Mortgage: Foreclosure: Impact on Buyer
|
- buyer is not personally liable on senior debt but if senior mortgage is not paid, creditor will foreclose land
- buyer has incentive to pay off lien - purchase price is usually fair market value minus amount to discharge mortgage |
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Mortgage: Foreclosure: Redemption in Equity
|
- at any time prior to foreclosure sale, debtor has right to redeem land and free it of the mortgage
* exercised by paying what is due plus interest and costs * universally recognized prior to sale |
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Mortgage: Foreclosure: Statutory Redemption
|
- recognized in about 1/2 states (not NY)
- gives debtor a statutory right to redeem for some fixed period after foreclosure sale has occurred - amount to be paid is only the foreclosure sale price - when debtor redeems, undoes foreclosure, title regained |
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Lateral Support
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- if land is improved by buildings and an adjacent landowner's excavation causes that land to cave in, excavator only liable if negligent
- strict liability attaches where P can show improvements on his land did not contribute to land's collapse |
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Water Rights: Riparian Doctrine
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- water belongs to those who own the land bordering water course
- share right of reasonable use of water and cannot unreasonable interfere w/use of others |
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Water Rights: Prior Appropriation Doctrine
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- water belongs initially to state but right to divert it and use it can be acquired by individual
- rights determined by priority of beneficial use * norm is first in time, first in right * any productive or beneficial use incl agriculture is sufficient |
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Water Rights: Ground Water
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- water beneath surface of earth that is not confined to a known channel
- surface owner is entitled to make reas use of groundwater but not waste |
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Water Rights: Surface Water & Common Enemy Rule
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- comes from rain, springs, melting snow
- landowner may change drainage or make any other change on his land to combat the flow of surface water |
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Possessor Rights: Trespass
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- invasion of land by tangible physical object
- removal by action for ejectment |
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Possessor Rights: Private Nuisance
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- substantial and unreas interference w/anothers use & enjoyment of land
- no tangible phys invasion required - no sympathy for hypersensitive P |
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Eminent Domain
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- govnt power to take private property for public use in exchange for just compensation
- can be explicit or implicit/regulatory |
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Zoning & Variance Requests
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pursuant to police powers, govnt may enact statutes to reas control land use
- citizens can request flexibility in zoning by showing * undue hardship * grant of variance will not work detriment to surrounding property value |
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Zoning & Non-Conforming Use
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- a once lawful existing use now deemed nonconforming by new zoning ordinances cannot be eliminated all at once absent just compensation
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Zoning & Exactions
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- exactions are those amenities sought by govnt in exchange for granting permission to build
- to be constitutional, exaction must be: * reas related in nature and scope to impact of proposed development |