Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
208 Cards in this Set
- Front
- Back
|
Elements of Adverse Possession?
|
COAH
Continuous - Uninterrupted possession for the statutory period Open and Notorious -- Possession that the usual owner would make under the circumstances Actual Entry Hostile -- Possessor does not have consent to be on the land |
|
|
When can 2 AP'ers use tacking?
|
When in privity (non-hostile nexus -- anything but ouster)
|
|
|
How does disability affect AP?
|
Statute will not run against true owner w/ disability at the INCEPTION of the AP.
|
|
|
What must be a in land contract?
|
In writing
Signed by party to be bound Describe the land State consideration |
|
|
What if land cited in land K > than actually exists?
|
Purchaser's remedy is specific performance -- pro rate reduction in the purchase price.
|
|
|
Exception to the Statute of Frauds in a Land K?
|
Part Performance
Need 2 out of 3 to satisfy & no writing needed 1. Possession of the land, and 2. Remitting all or part of the purchase price, or 3. Substantial improvements to the premises |
|
|
Equitable Conversion?
|
Once the K is signed, the buyer owns the land (subject to paying the purchase price at closing)
|
|
|
Property destroyed between land K and closing -- who bears the risk of loss?
|
Buyer
|
|
|
2 Implied Promises in every land K?
|
Marketable title at closing
Not to make any false statements of material fact |
|
|
Marketable Title def'n?
|
Title that is free from reasonable doubt.
|
|
|
When is title unmarketable?
|
1. AP (even a portion of the land)
2. Encumbrances (outstanding mortgages, servitudes) unless Buyer waives 3. Zoning violations |
|
|
Zoning Ordinances effect on marketable title?
|
No effect -- only violations.
|
|
|
Seller's promise not to many any false statements of material fact means...
|
Seller is liable for lies and omissions (failure to disclose material latent defects in the property)
|
|
|
Implied Warranties in the Land K?
|
No implied warranty of fitness or habitability -- CAVEAT EMPTOR.
Exception: There is an implied warranty of fitness and workmanlike construction that applies to the sale of new homes by a builder-vendor |
|
|
Effect of seller's disclaimer of liability in Land K?
|
No effect re: fraud or omissions.
|
|
|
What document controls from closing on?
|
Deed
|
|
|
To pass title, need?
|
LEAD
Lawful Execution and Delivery |
|
|
Lawful Execution?
|
Deed in writing
Signed by Grantor Description of Land - "unambiguous and of good lead" Consideration not needed |
|
|
Delivery
|
Physical or Manual transfer of the deed to the grantee
Does not require actual physical transfer to the grantee -- PRESENT INTENT (does the Grantor have the intent to be immediately bound?) |
|
|
Effect of Grantee's rejection of the delivery?
|
Defeats delivery
|
|
|
Delivery by escrow?
|
OK -- grantor delivers deed to escrow agent w/ instructions to deliver the deed once certain conditions have been met.
|
|
|
What if seller puts deed in escrow and then dies/becomes incompetent?
|
If conditions are met, then title will still pass.
|
|
|
Absolute Deed w/ oral conditions?
|
Oral conditions void.
|
|
|
Quitclaim Deed?
|
No covenants
BUT seller does implicitly promise to be able to provide marketable title at the time of closing. |
|
|
General Warranty Deed
|
Warrants against all defects in title, incl. those attributable to the grantor's predecessors.
|
|
|
What are the Present Covenants?
|
Seisen -- grantor owns
Right to Convey -- grantor has authority Encumbrances -- no servitudes/liens on land |
|
|
When can the present covenants be breached?
|
At the time of delivery.
|
|
|
What are the Future Covenants?
|
Quiet Enjoyment -- grantee will not be disturbed by a title claim
Warranty -- grantor will defend grantee in event of lawful claim of title asserted by 3d party Further Assurances -- grantor will do any future acts that are reasonably necessary to perfect title if title is flawed. |
|
|
When are the future covenants breached?
|
When Grantee is disturbed in his possession
|
|
|
Statutory Special Warranty Deed
|
2 Promises Grantor makes on behalf of HIMSELF:
1. Grantor has not conveyed the estate to anyone other than Grantee 2. Grantor promises that the estate is free from encumbrances made by the Grantor |
|
|
Who is a BFP?
|
Purchaser for Value
Purchased w/o notice of prior purchaser. |
|
|
Define value?
|
Substantial pecuniary consideration
|
|
|
To whom do the recording statutes NOT apply?
|
Donees
Heirs Devisees (watch for Shelter Rule) |
|
|
Types of Recording Statutes
|
Race
Notice Race-Notice |
|
|
What does a race statute mean?
|
First to record wins
|
|
|
What does a race notice statute mean?
|
Buyer who is a BFP and records first takes
|
|
|
What does notice statute mean?
|
Last BFP w/o notice takes.
|
|
|
Types of notice?
|
Actual -- knowledge
Inquiry -- whatever an examination of the land would reveal Record -- prior properly recorded deeds in the chain of title |
|
|
What is the Shelter Rule?
|
A grantee who takes from a BFP "steps into the shoes" of the BFP and can prevail against any person the BFP Grantor would have prevailed against.
|
|
|
What is a wild deed?
|
Recorded deed not connected to the chain of title
|
|
|
Can a wild deed give record notice?
|
No, a wild deed is incapable of giving record notice of its existence.
|
|
|
What is Estoppel by Deed?
|
If the grantor purports to convey an estate in property that she does not then own, her subsequent acquisition of the estate will automatically inure the benefit to the grantee.
|
|
|
What is a mortgage?
|
Conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation.
|
|
|
What are the 2 elements of a mortgage?
|
Debt
Voluntary transfer of a security interest in the debtor's land |
|
|
What is a legal mortgage?
|
Mortgage in writing
AKA -- Note, security interest in land, mortgage deed, deed of trust, sale and leaseback |
|
|
What is an equitable mortgage?
|
An absolute deed given for security purposes. Parol evidence is admissible to show parties' intent.
|
|
|
Prior to foreclosure, what are the mortgagor's rights?
|
Mortgagor has title and right to possession.
|
|
|
Prior to the foreclosure, what are the mortgagee's rights?
|
Lien on the property
|
|
|
Are interests in a mortgage transferable?
|
Yes, mortgages automatically follow a properly transferred note.
|
|
|
How can mortgagee transfer his interest?
|
By either
1. Endorsing note and delivering to transferee, or 2. Executing a separate document of assignment |
|
|
What if mortgagor sells mortgaged land?
|
Lien remains on the land, so long as the mortgage instrument has been properly recorded.
|
|
|
What is a holder in due course?
|
Mortgagee transfers interest via note that is endorsed and delivered.
|
|
|
What are the elements of a Holder in Due Course?
|
ON = Original Note
1. ON must be negotiable (payable to named mortgagee) 2. ON must be endorsed (signed by named mortgagee) 3. ON must be delivered to the transferee (NO PHOTOCOPIES) 4. Transferee must take the Note in good faith w/o notice of illegality, AND 5. Transferee must pay value for the note (more than nominal) |
|
|
What are the benefits of being a Holder in Due Course?
|
Note is free of personal defenses
|
|
|
What are the personal defenses?
|
Lack of consideration
Fraud in the inducement Unconscionability Waiver Estoppel |
|
|
What defenses still apply to the Holder in Due Course?
|
MAD FIFI4:
Material Alteration Duress Fraud in the Factum (lie about instrument) Incapacity Illegality Infancy Insolvency |
|
|
What if mortgagor transfers the lien?
|
Mortgagor may sell encumbered property, but as long as mortgage has been properly recorded, buyer takes subject to the outstanding mortgage.
|
|
|
Do the recording statutes apply to mortgages?
|
Yes
|
|
|
If mortgaged land is transferred, and new buyer assumed the mortgage, who is liable for the mortgage?
|
Both new buyer (primary) and old buyer (secondary)
|
|
|
If mortgaged land is transferred, and new buyer took subject to the mortgage, who is liable for the mortgage?
|
New buyer assumes no liability for the mortgage, old buyer is still liable. But if old buyer fails to make payments, mortgagee can foreclose on the property.
|
|
|
How must a mortgagee foreclose?
|
Judicial Sale
|
|
|
What if the foreclosure sale price is less than the outstanding mortgage(s) on the property?
|
Mortgagee can bring a personal action against the Mortgagor for deficiency jmt
|
|
|
What if the foreclosure sale price is in excess of the mortgage?
|
Surplus goes to the mortgagor.
|
|
|
What is the effect of a foreclosure by a Sr. mortgagee?
|
Terminates the JR. interests.
|
|
|
What is the effect of a foreclosure by a Jr. mortgagee?
|
Terminates other JR. interests; Sr. interests remain w/ the property.
Jr. lienholders are paid in descending order w/ proceeds, assuming their are funds left after the foreclosing mortgagee takes. |
|
|
Who are necessary parties to a foreclosure action?
|
Jr. interests, debtor
|
|
|
What if a Jr. interest is not a party to a foreclosure action?
|
Jr. interest will remain w/ the land.
|
|
|
What mortgages will the foreclosure buyer be liable for?
|
None, but the sr. interests remain w/ the property. If the mortgagor defaults, then sr. interest have a right to foreclose on the land.
|
|
|
Priorities of Creditors?
|
1. Purchase Money Mortgage
2. Other Mortgages by order of record Creditors must record, otherwise NO PRIORITY. Creditor priority is first in time, first in right. |
|
|
What is a Purchase Money Mortgage?
|
Mortgage given to secure the loan that's allowing mortgagor to acquire the encumbered land in the first place.
|
|
|
Can mortgages be subordinated?
|
Yes, by agreement.
|
|
|
What is equitable redemption?
|
Prior to date of foreclosure sale, debtor can try to redeem the land. Extinguishes once foreclosure is complete.
Must pay missed payments + interests + costs. If there is an acceleration clause, must pay in full + interest + costs. |
|
|
What is statutory redemption?
|
Debtor has the right to redeem for a fixed period after the foreclosure sale has occurred.
Effect: nullifies foreclosure sale. Debtor has right to possess during the statutory period. |
|
|
Does a landowner have the right to lateral support?
|
Yes, Strict liability for land in its natural state.
But if land is improved w/ buildings and an adjacent LO's excavation causes improved land to cave in, excavator liable only if NEGLIGENT. No strict liability unless P can show that because of D's actions, P's improved land would have collapsed even w/o buildings on it. |
|
|
What is the Riparian Doctrine?
|
Water owned by Riparians (owners of land bordering water), and they share the reasonable use of the water.
Natural use > Artificial use Liability for riparian's use that unreasonably interferes w/ another's |
|
|
When can a downstream owner win under the Riparian Doctrine?
|
Only if there is substantial interference and downstream owner has the same use as the upstream owner.
|
|
|
What is the Prior Application Doctrine?
|
Water belongs initially to the state, but individuals acquire right to divert the water and use, regardless of riparian status.
Rights determined by priority of beneficial use. Productive beneficial use ok (e.g., agriculture) |
|
|
Groundwater / Percolating Water Rights?
|
Water beneath surface of earth
Surface owners can make reasonable use of it. |
|
|
What is surface water?
|
Water from rain, springs, melting snow, that has not yet reached a natural watercourse or basin.
|
|
|
What is the common enemy rule?
|
LO may change drainage or make any other changes or improvements on his land to combat the flow of surface water, but LO cannot divert in a way that does unnecessary damage to another's land.
|
|
|
4 Remedies a Possessor may pursue to exclude others?
|
Actions for ...
1. Trespass (physical invasion by a tangible object) 2. Private Nuisance (intangible invasions - odors) 3. Continuing Trespass 4. Ejectment or unlawful detainer (action to remove a trespasser or tenant) |
|
|
Can a hypersensitive P bring a private nuisance action?
|
No
|
|
|
Def'n of Eminent Domain
|
Gov't 5th Am. power to take private property for public use in exchange for just compensation.
|
|
|
What are the 2 kinds of takings?
|
Explicit (direct act of condemnation)
Implicit/Regulatory -- Gov't regulation that has the same effect as a taking |
|
|
What happens when the gov't regulates so as to deny the owner of the property economic use?
|
Depends.
If denies ALL economic use, then this a taking If denies NEARLY ALL economic use, then balancing test: 1. Social goals of the reg. 2. Dimunition in value of property 3. Owner's reasonable expectations for use of the property |
|
|
What is an exaction?
|
Local gov't demand for amenities at expense of property owner in exchange for granting permission to build.
|
|
|
What is an unconstitutional exaction?
|
Exaction that is NOT reasonably related (essential nexus) both in the nature and scope to the impact of the proposed development (rough proportionality).
|
|
|
Remedy for an implicit or regulatory taking?
|
Compensate the owner or
Terminate the regulation and pay the owner for damages that occurred while it was in effect. |
|
|
Def'n of Zoning
|
Pursuant to police powers, Gov't may enact statutes to reasonably control land use.
|
|
|
Def'n Variance
|
Asking for the zoning statute to not apply to you.
|
|
|
What must proponent show to get a variance?
|
Undue hardship w/o it, and
Variance will not decrease neighboring property values. Granted or denied by administrative board. |
|
|
Language to create a FSA?
|
"To A and his heirs"
"To A" |
|
|
Duration of a FSA?
|
Potentially infinite
|
|
|
Transferability of FSA?
|
Devisable
Descendible Alienable |
|
|
Future interest in an FSA?
|
None
|
|
|
Language to create a Fee Tail
|
"To A and the heirs of his body"
|
|
|
Duration of a Fee Tail?
|
Lasts only as long as there are lineal blood descendants
|
|
|
Transferability of a Fee Tail?
|
Passes automatically to lineal descendants
|
|
|
Future Interest in a Fee Tail?
|
Reversion (if held by Grantor); Remainder (if held by 3dP)
|
|
|
FSD language
|
"so long as"
"until" "while" |
|
|
Duration of FSD?
|
Potentially infinite
|
|
|
Transferability of defeasible fees?
|
Alienable, devisable, descendible, subject to condition
|
|
|
Future interest in FSD?
|
Possibility of Reverter (held by Grantor) AUTOMATIC
|
|
|
Language to create a FSSCS?
|
"To A, but if X event happens, grantor reserves the right to reenter and retake"
|
|
|
Duration of FSSCS?
|
Potentially infinite, so long as event does not occur, and grantor doesn't exercise rights.
|
|
|
Future Interest in FSSCS?
|
Right of Entry/Power of Termination (held by Grantor) - At G's option
|
|
|
Language to create a FSSEI?
|
"To A, but if X event occurs, then to B"
|
|
|
Duration of FSSEI?
|
Potentially infinite so long as the stated event does not occur.
|
|
|
Future interest in FSSEI?
|
Executory Interest held by 3dP - AUTOMATIC
|
|
|
Language to create a Life Estate?
|
To A for life
To A for the life of B |
|
|
Duration of Life Estate?
|
Measured by the life of transferee or the life of another (pur autre vie)
|
|
|
Transferability of Life Estate?
|
Alienable, devisable, descendible if pur autr view and measuring life is still alive.
|
|
|
Future interest in Life Estate?
|
Reversion (if held by Grantor); Remainder (if held by 3dP)
|
|
|
Life Estate T Rights?
|
All ordinary uses and profits from the land.
Must NOT commit waste. |
|
|
3 types of waste?
|
Voluntary/Affirmative
Permissive Ameliorative |
|
|
What is voluntary waste?
|
Overt conduct that causes a decrease in value
|
|
|
Life T and Natural Resources MAY NOT...
|
Consume or exploit natural resources on the property, UNLESS one of 4 exceptions apply.
|
|
|
Exceptions to the Life T's use of Natural Resources?
|
PURGE
Prior Use (incl. Open Mines) Reasonable repairs Grant Exploitation (only suitable for) |
|
|
What is the open mines doctrine?
|
If mining done on the land before grant of LE, then Life T may continue to mine but is limited to mines already open.
|
|
|
Permissive Waste def'n
|
Land allowed to fall into disrepair b/c of neglect.
|
|
|
Life T's Duties?
|
Maintain the premises in reasonably good repair
Pay ordinary taxes to the extent of income/profits from land (or if no income, then to extent of land's FMV) |
|
|
What is ameliorative waste?
|
Enhances property's value. Cannot do UNLESS all future interest holders are known and consent to changes.
|
|
|
What is a vested remainder?
|
Remainder created in an
Ascertainable person, AND not subject to any condition precedent. |
|
|
Rule of Destructibility?
|
Contingent remainder destroyed if still contingent at time the preceding estate ends.
|
|
|
Modern Rule re: Rule of Destructibility?
|
Abolished. Changes interest to a springing executory interest.
|
|
|
Rule in Shelley's Case?
|
Collapses "to A for life, then to A's heirs" to "to A" in FSA, but only if A is still alive.
|
|
|
Modern approach re: Rule in Shelley's Case?
|
Abolished -- Life Estate in A, contingent remainder in A's heirbs, reversion to O if A has no heirs.
|
|
|
Doctrine of Worthier Title?
|
"To A for life, remainder to O's heirs" --> changes to "To A for life" and O has a reversion. Grantor Intent can override this rule.
Still applies today. |
|
|
Indefeasibly Vested Remainder?
|
Holder is certain to acquire estate in the future, w/ no conditions attached.
|
|
|
Vested Remainder Subject to complete defeasance?
|
Remainderman NOT subject to a CP, but estate can be cut short by a condition subsequent.
|
|
|
Vested Remainder Subject to Open?
|
Remainder is vested in a group of takers, at least 1 of whom is qualified to take. However, each class member's share is subject to partial future diminution.
|
|
|
Open v. Closed Class
|
Open = Possible for others to enter
Closed = Max membership set |
|
|
Common Law Rule of Convenience?
|
Class closes whenever any member can demand possession.
|
|
|
Executory Interest Def'n
|
Future interest created in a 3dP which is NOT a remainder and which takes effect by cutting short some interest in either another person ("Shifting") or in the grantor/heris ("Springing")
|
|
|
Shifting Executory Interest
|
Always follows a defeasible fee and cuts short someone other than G
|
|
|
Springing Executory Interest
|
Always follows a defeasible fee and cuts short G
|
|
|
RAP Strategy
|
1. Future Interest Created?
2. CPs? 3. Measuring Life? 4. Will we know w/i 21 years of ML's death whether the future interest holders can or cannot take? |
|
|
RAP applies only to...
|
Contingent Remainders
Executory Interests Vested Remainders subject to open |
|
|
RAP does NOT apply to...
|
Future interests in Grantor
Indefeasibly vested remainders, or Vested remainders subject to complete defeasance. |
|
|
Fertile Octogenarian?
|
Anyone regardless of age is capable of having children.
|
|
|
2 Bright Line Rules re: RAP?
|
1. A gift to an open class that is conditioned on the members surviving beyond 21 years violates RAP (entire class is void)
2. Many shifting executory interests violate RAP -- An executory interest w/ no time limit as to when it must vest violates RAP. |
|
|
Charity to Charity RAP exception?
|
Shifting executory interest from 1 charity to another does not violate RAP
|
|
|
RAP Reforms?
|
Wait and See
USRAP -- CL RAP or 90 years Cy Pres - Reform to fit RAP |
|
|
Def'n JT?
|
2+ owners w/ Right of Survivorship
|
|
|
Creation of a JT requires?
|
PITT
Possession (equal rights to prop) Interests (= interests) Title (same instrument) Time (same time) Must be CLEARLY creating a JT Use a straw man if necessary. |
|
|
Severance of a JT?
|
SPAM
Sale (can be done secretly) Partition and Mortgage (title theory) |
|
|
Sale's effect on JT?
|
Severs JT as to seller's interest. Buyer becomes a TIC w/ other JT(s). If more than 2 other JTs, they remain in JT.
Severance at SALE (K) not at closing. |
|
|
3 Types of Partition
|
Voluntary Agreement
Partition in Kind (equitable physical division of land) Forced Sale -- In best interests to sell land if not partionable. |
|
|
Lien Theory vs. Title Theory
|
Lien -- Mortgage creates a lien
Title -- Mortgage puts title w/ the mortgagee (severs JT) |
|
|
Tenancy by the Entirety Def'n
|
Marital Interest + ROS
Only between H & W Arises presumptively when property is conveyed to H&W |
|
|
Rights of Tenants by the Entirety?
|
Creditors of 1 spouse cannot touch.
Unilateral conveyances barred. |
|
|
Tenancy in Common Def'n
|
2+ people own property w/ No ROS
Own individual portion w/ right to possess the whole Default conveyance. |
|
|
Rights and Duties of Co-TICs
|
Possess the whole
Rent from TIC in exclusive possession Rent from 3d parties (pro rata share) Adverse Possession - only w/ ouster Carrying Costs - each TIC must pay taxes, mortgage, etc. pro rata Repairs Improvements -- No right to contribution (improver receives credit for value increase or deduction for decrease) No waste Right to Partition |
|
|
Tenancy for Years Def'n
|
Lease for fixed, determined period of time
Termination date known from start - automatic termination |
|
|
Periodic Tenancy Def'n
|
Lease which continues for successive intervals until L or T gives proper Notice of Termination
|
|
|
Creation of a Periodic Tenancy?
|
Express
Implied (lease w/ no mention of duration, but rent paid at set intervals) Default after holdover T pays rent |
|
|
Termination of a Periodic Tenancy?
|
Notice req'd
CL -- Length of period itself unless otherwise agreed. Exception -- 1 yr period, 6 months Must conclude at end of a natural lease period. |
|
|
Tenancy at Will Def'n
|
No fixed duration (so long as L and T desire)
If regular rent paid, then implied periodic tenancy. |
|
|
Termination of a Tenancy at Will
|
Any time, but reasonable demand to vacate is typically req'd
|
|
|
Tenancy at Sufferance Def'n
|
T wrongfully stayed on after lease expired
Lasts until L evicts or elects to hold T to a new term. |
|
|
T's Liability to 3d Parties
|
Keep premises in reasonably good repair. T liable for injuries to 3d parties that T invites on the property, even if L expressly promises to make repairs (indemnity)
|
|
|
T's Duty to Repair when the Lease is Silent?
|
T must maintain premises and make ordinary repairs. No waste
|
|
|
Removal of a fixture is classified as...
|
Voluntary Waste
|
|
|
What is a fixture?
|
Once movable chattle that, by virtue of its annexation to the realty, objectively shows intent to permanently improve the realty.
|
|
|
How to tell if a T installation = fixture?
|
1. Express Agreement controls;
2. In absence of an agreement, T may remove chattel T installed, so long as removal does not cause substantial harm to premises. |
|
|
Express Covenant to Maintain Property in Good Condition -- at CL and Now?
|
CL -- T responsible for any loss (incl. acts of God)
Maj. -- T may terminate lease if premises destroyed by force of nature, absent T's fault. |
|
|
If T breaches duty to pay rent and remains in possession, then L may...
|
Seek eviction or
Sue for back rent damages |
|
|
If T breaches duty to pay rent but vacated the premises, then L may...
|
SIR
Surrender -- Abandonment = Surrender (if unexpired term > 1 yr, then must be in writing) Ignore -- Hold T responsible for unpaid rent (minority) Re-rent -- Re-rent and hold T liable for any deficiency + costs (good faith effort) |
|
|
T's Duties?
|
Pay Rent
Repair |
|
|
L's Duties?
|
Deliver Possession
Quiet Enjoyment Habitability |
|
|
Must L deliver possession?
|
Yes, must deliver physical possession (English rule).
American Rule -- Legal possession only. |
|
|
Implied Covenant of Quiet Enjoyment?
|
Applies to both Residential and Commercial Leases
Right to quiet use and enjoyment of the premises. |
|
|
Breach of covenant of quiet enjoyment?
|
Actual wrongful eviction
Constructive Eviction |
|
|
What are the 3 elements of constructive eviction?
|
SING
Substantial Interference - chronic Notice - T must tell L Goodbye - T must vacate |
|
|
Is L liable for acts of other tenants?
|
Generally no, except
1. Nuisance 2. common areas |
|
|
Implied Warranty of Habitability?
|
Residential leases only
Premises fit for basic human habitation Non-waivable |
|
|
If there is a breach of Warranty of Habitability, what are T's options?
|
M R3
Move out and terminate Repair and deduct Reduce rent (escrow) Remain in possession and sue for $$ |
|
|
Can L retaliatorily evict T?
|
No
|
|
|
Are leaseholds assignable or subleasable?
|
Yes.
|
|
|
Assignment def'n
|
Transfer of leasehold in whole (entire remaining term)
|
|
|
Sublease def'n
|
Transfer of part of remaining leasehold term
|
|
|
L and T are in what privities?
|
Estate and L
|
|
|
T1 assigns to T2. What are the privities between L, T1 and T2?
|
L and T1 = privity of K
T2 and L are in privity of estate (only privity of K if T2 assumed all the promises of the original lease) |
|
|
If T1 subleases to T2, what are the privities between L, T1, and T2?
|
L and T1 in privity of estate and K
No privities between L and T2. |
|
|
L's tort liability under CL?
|
Caveat Lessee -- no duty to make premises safe.
|
|
|
Exceptions to Caveat Lessee?
|
CLAPS
Common Areas Latent Defects -- L must warn of any hidden defects which L had actual or constructive knowledge -- WARN only. Assumption of Repairs -- reasonable care for assumed repairs Public Use Short term lease of furnished dwelling |
|
|
Creation of an Affirmative Easement?
|
PING
Prescription Implication Necessity Grant |
|
|
Prescription Def'n?
|
Satisfies COAH
|
|
|
Implication Def'n?
|
Implied from prior use -- at time land was severed, previous use was apparent and parties expected it to continue, as it's reasonably necessary for the Dominant's use and enjoyment of the land.
|
|
|
Necessity Def'n?
|
Only way out (landlocked)
|
|
|
Grant Def'n?
|
Writing signed by Grantor
|
|
|
Easement Def'n
|
Grant of a non-possessory property interest that entitles the holder (Dominant) to some form of use or enjoyment of another's land (Servient)
|
|
|
Affirmative Easement Def'n
|
Grants holder the right to do something on the servient parcel.
|
|
|
Negative Easement Def'n and Classifications
|
Holder can prevent servient owner from doing something
LASS Light Air Support Streamwater MAYBE: Scenic View |
|
|
Easement Appurtenant Def'n
|
Benefits holder in his physical or enjoyment of his property. Takes 2!
|
|
|
Transferability of Easement Appurtenant
|
Benefit passes automatically w/ Dominant
Burden passes automatically, unless BFP |
|
|
Easement in Gross Def'n
|
Benefits holder in some personal or pecuniary advantage (only servient parcel)
|
|
|
Transferability of Easement in Gross
|
Not transferable, unless it's a commercial easement in gross.
|
|
|
Scope of an Easement -- Can it be unilaterally expanded?
|
No
|
|
|
How to terminate an easement?
|
END CRAMP
Estoppel Necessity ends Destruction of the servient parcel Condemnation Release Abandonment Merger Prescription |
|
|
License Def'n
|
Privilege to enter another's land for some delineated purpose.
Freely revocable. |
|
|
Covenant Def'n
|
Promise to do something or not do something
NOT a property interest Can be affirmative and negative |
|
|
Covenant vs. Equitable Servitude -- How to distinguish?
|
ES = Injunction
Covenant = Damages |
|
|
Does the covenant run w/ the land?
Does the Burden Run? |
WITHN
Writing Intent Touch and Concern Horizontal and Vertical Privity Notice |
|
|
Does the covenant run w/ the land?
Does the Benefit Run? |
WITV
Writing Intent Touch and Concern Vertical Privity |
|
|
Equitable Servitude Creation
|
WITN-ES
Writing Intent Touch and Concern Notice ES=Equitable Servitude |
|
|
Common Scheme Doctrine
|
When sales began, developer had a general scheme or residential development that included D's land, and
D had notice of the deed (AIR) |
|
|
Defenses to ESs?
|
Changed Circumstances -- Changes so pervasive that the entire area has changed (must affect ALL the parcels)
|
