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204 Cards in this Set
- Front
- Back
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FUTURE INTEREST
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A right to future possession.
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GRANTOR
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A person who transfers, by gift or sale, an interest in property.
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GRANTEE
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A person who receives, by gift or purchase, an interest in property.
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FEE SIMPLE ABSOLUTE
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A fee simple absolute is an estate in land that is of potentially infinite duration and has no limitations whatsoever.
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WORDS OF LIMITATION
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Words of limitation are the part of the conveyance that identifies the nature of the estate being conveyed.
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WORDS OF PURCHASE
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Words of purchase are the part of the conveyance that identifies the grantee.
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POSSESSORY ESTATE
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The holder of the possessory estate has the present right to possess the land.
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DEFEASIBLE ESTATE
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A defeasible estate is one that could end early upon the happening of a particular event.
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LIFE ESTATE
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A life estate is an interest that will end upon the death of the person whose life is designated as the measuring life. Modernly, it must be expressly granted.
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LIFE ESTATE PUR AUTRE VIE
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A life estate pur autre vie is an estate measured by the life of another.
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TERM OF YEARS
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A term of years is a lease for a designated period of time.
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DETERMINABLE
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A fee is determinable if it will end on the happening of a stated event. It is usually identified by words of duration. It is a drafting custom to place the determinable limitation before the common that marks the end of the description of the determinable estate and to place the limitation after that comma if it is not a determinable limitation.
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SUBJECT TO A CONDITION SUBSEQUENT
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An estate whose natural duration may be cut short by the happening of a state event, allowing the grantor to retake the property. The event or condition is described as a part of the grantor’s future interest rather than as part of the estate that may be cut short.
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SUBJECT TO AN EXECUTORY LIMITATION
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An estate is subject to an executory limitation if it can be cut short by the happening of a stated event, and the right to possession will pass to a third person. The limiting event or condition is described as part of the following future interest cutting short the prior estate.
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SUBJECT TO OPEN
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An estate is subject to open if it is given to class of persons and one or more of those persons is already ascertained but other class members could be added.
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SUBJECT TO PARTIAL DIVESTMENT
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A synonym for “subject to open.”
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ASCERTAINED
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The holder of a future interest is ascertained if that person is alive and identified.
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REMAINDER
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A remainder is a future interest given to a grantee and following an estate that will end naturally.
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VESTED REMAINDER
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A vested remainder has an ascertained taker and no conditions precedent.
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CONDITION PRECEDENT
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A condition precedent is a condition, other than the termination of a prior estate, that must be fulfilled before a future interest holder’s right to possession is assured.
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CONTIGENT REMAINDER
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A remainder is contingent if it given to an unascertained person and/or it contains a condition precedent, other than the termination of the prior estate, that must be satisfied before the interest can become possessory.
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VESTED REMAINED SUBJECT TO DIVESTMENT
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A vested remainder is one that is held by an ascertained taker and not subject to a condition precedent but it could later be divested before it ever becomes possessory. If the divesting condition could happen before the vested remainder becomes possessory, the remainder is subject to divestment.
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EXECUTORY INTEREST
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An executory interest is an interest in favor of a grantee where there is a gap in seisen from the prior estate, or it cuts short the prior estate. The description of the event or condition can define the prior estate’s duration, or it can be described as part of the executory interest interrupting the prior estate. Executory interests never vest until possession.
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SPRINGING EXECUTORY INTEREST
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A springing executory interest follows a gap in seisen, during which the property reverted to the grantor.
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SHIFTING EXECUTORY INTEREST
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A shifting executory interest cuts short the prior estate and gives it to the third party.
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REVERSION
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A reversion is a future interest retained by the grantor and following an estate that will end naturally.
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ALTERNATIVE CONTIGENT REMAINDERS
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Alternative contingent remainders are a pair of remainders with opposite conditions precedent.
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POSSIBILITY OF REVERTER
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A possibility of reverter is a future interest retained by the grantor and following a determinable estate.
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RIGHT OF ENTRY
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A right of entry is a future interest retained by the grantor and following an estate subject to a condition subsequent.
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ALIENABLE
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A property interest that can be conveyed to another person is alienable.
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UNREASONABLE RESTRAINTS ON ALIENATION
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In deciding whether a restraint on alienation is reasonable, the court will consider the nature of the restraint (whether it is a prohibition, forfeiture or promissory), its duration and its purpose.
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RULE AGAINST PERPETUITIES
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The Rule Against Perpetuities says that no interest is valid unless it will vest or fail within a life in being plus 21 years. The doctrine strikes down the conveyance of a contingent or open interest that might vest too remotely. It does not apply to interests in a grantor.
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LIVES IN BEING
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Lives in being are those person who are alive at the time of the conveyance.
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VALIDATING LIFE
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A validating life is a person who proves that an interest will either vest or fail under the Rule Against Perpetuities.
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INTERESTS VULNERABLE TO THE RAP
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Contingent remainders, executory interests, options and powers of appointment.
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DOCTRINE OF WORTHIER TITLE
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The doctrine of worthier title creates a presumption that a grantor who conveys a future interest to his or her own heirs actually intended to reserve that interest to him or herself. For example, “O to A for life, and then to O’s heirs” would be interpreted as to “O,” instead of O’s heoirs. The presumption might be overcome with evidence of a contrary intent by O.
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MERGER
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The merger doctrine combines a lesser vested estate into a larger estate estates when the two estates come into the hands fo the same person and are not separated by another estate.
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LAND CONTRACT
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The Statute of Frauds requires a land contract to be in writing, to be signed by the party to be bound and reciting some consideration. The property must be described so that there is no ambiguity about what parcel is being transferred.
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BREACH OF CONTRACT
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Either party may refuse to close. If the buyer backs out, there may be damages for non-performance or a liquidated damages clause. If seller backs out, specific performance may be ordered.
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LAND CONTRACT
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The Statute of Frauds requires a land contract to be in writing, to be signed by the party to be bound and reciting some consideration. The property must be described so that there is no ambiguity about what parcel is being transferred.
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BREACH OF CONTRACT
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Either party may refuse to close. If the buyer backs out, there may be damages for non-performance or a liquidated damages clause. If seller backs out, specific performance may be ordered.
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MARKETABLE TITLE
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Marketable title is title that is free from reasonable doubt, not every doubt. It is free from lawsuits or the threat of litigation.
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MARKETABLE TITLE
Circumstances that render title unmarketable |
These circumstances will render the title unmarketable:
1. adverse possession; 2. encumbrances – servitudes or liens on the property (leases, mortgages, covenants) 3. unless the buyer has waived them, 4.zoning violations but not zoning restrictions 5. joint or co-tenancies, seller has conditional fee, 6. or misrepresentation of the number of acres. |
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MARKETABLE TITLE
Remedies for breach |
The buyer may rescind the contract and recover any money paid; may collect damages for breach of contract (market value minus contract price unless the seller acts in good faith, in which case some states limit damages to out-of-pocket expenses) or sue for specific performance.
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SELLER’S DUTY TO DISCLOSE
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In every land contract, the seller implicitly promises not to make any false statements of material fact. The majority of states also hold the seller liable for failing to disclose latent material problems.
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IMPLIED WARRANTY OF FITNESS
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After the passing of the deed, the seller and builder may still be liable to the buyer for the condition of the premises. The builder is held to a standard of reasonable workmanlike quality. The builder and a subsequent purchaser don’t have to be in privity. In California, there’s a 10-year statute of limitations on suing the builder. This applies to residential and not commercial property. In commercial cases, the
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DEED
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The deed passes legal title from grantor to grantee if it is lawfully executed and delivered. It must be in writing, signed by the grantor, and lawfully executed in accordance with the given jurisdiction’s requirements.
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DEEDS
Elements |
The deed must have the
1. Parties 2. Interest conveyed 3. Grantor’s signature 4. Acknowledments (witnesses, such as a notary) 5. Intent to transfer 6. Description of the parcel PIG AID |
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DEEDS
Delivery |
Delivery is satisfied when the grantor manifests the present intent to be immediately bound or to part with legal control, whether or not the deed instrument itself is actually or literally transferred to the grantee.
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DEEDS
when delivery is presumed |
The deed is presumed (can be rebutted) to have been delivered if
1. it is in the possession of the grantee 2. it has been recorded 3. it has been acknowledged. |
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Non-delivery is presumed
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If the grantor still has the deed, non-delivery is presumed, but this presumption, too, is rebuttable.
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CONDITIONAL DELIVERY
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If a grantor delivers a deed to a grantee that is absolute on its face but is accompanied by an oral condition, such as “This is yours when you turn 20,” most courts hold that the oral condition has no effect. Parol evidence is not admissible to show an otherwise valid deed was intended to be condition, but it is admissible to establish the grantor’s intent that the deed be immediately operative as a conveyance of some interest.
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EFFECT OF DELIVERY
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When delivery has occurred, the conveyance can only be undone by another delivery. There is no requirement of consideration for the delivery but formality is required to convey. If the deed was never delivered, recording it will accomplish nothing.
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WILL SUBSTITUTE
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A deed can not be effective in the future, typically on the death of a grantor, because a deed cannot substitute for a will. The situation that is not permitted is when A prepares a deed conveying Blackacre to B and hands to B, saying, “On my death, record this.” Conditional delivery is not permitted; the deed either conveys an interest immediately or it conveys nothing.
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THIRD-PARTY ESCROW
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The deed is given to the escrow, not the grantee, but delivery is irrevocable. If the deed is delivered to escrow, the grantor cannot retrieve it. The deed is delivered upon the happening of a condition. Grantor must have no control over the condition. Grantor does not have control over own death.
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ESCROW AND RELATION BACK
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If a deed is delivered to escrow and then to the grantee, the second delivery is said to relate back to the first one, and that’s when the grantee is said to take title. That makes the grantee’s claim superior to any claims that arise during the time of escrow.
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RESCUING A CONDITIONAL DELIVERY
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If A gives a deed to B but B is told to “hold the deed” until A dies, this is a conditional delivery and not permitted. But a way around the problem is to construe the deed as presently effective but giving a life estate to A and a remainder to B, or the deed conveys an executory interest to B.
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EQUITABLE CONVERSION
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Equitable conversion is a common law doctrine that says that when a land contract is signed, buyer becomes equitable owner of the land. Seller becomes equitable owner of the proceeds. It means that if the land contract does not specify, the buyer bears the risk of loss. A growing minority of states follow the uniform Vendor and Purchaser Act, under which the seller bears the risk of loss until the buyer takes possession. Complete destruction of the property renders the contract unenforceable, but partial or immaterial damage means that the contract remains intact, although the purchase price is reduced to reflect the extent of the destruction.
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MORTGAGE
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A mortgage is a writing that creates a security interest in the property for repayment of debt. Under common law, payments had to be made on law day, and a payment that was even one day late was not acceptable. A deed, absolute in form, that is intended to be security for a loan, will be treated as a mortgage.
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EQUITY OF REDEMPTION
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The buyer/debtor was allowed to redeem his property by a late payment. The equity of redemption was itself a property interest. The creditor received interest for the late payment. A release to the motgagee of the equity of redemption will not be inferred from equivocal circumstance. It must be in writing showing the mortgagor’s intent and for consideration.
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FORECLOSURE
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Foreclosure now ends the equity of redemption but the debtor has post-sale statutory right of redemption in most states. Mortgagor can redeem by paying the buyer the purchase price plus costs. Jurisdictions are split on whether the mortgagor or new buyer has possession in this period.
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COMMON LAW RULE OF RECORDING
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First in time, first in right. Common law rule might prevail in some situations: if the deed is not properly acknowledge; if the subsequent grantee does not take for value (a donee or devisee) or the subsequent grantee had notice of a previous purchasers.
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RACE STATUTE
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Whoever records first, prevails.
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WHAT MUST BE RECORDED
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Documents relating to title or an interest in land should be recorded including deeds; mortgages; powers of attorney; leases of one year or longer; tax liens and restrictive covenants.
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NOTICE STATUTE
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In a notice jurisdiction, if B is a bona fide purchaser for value, B wins regardless even if A records first. In other words, a subsequent BFP is not bound by an unrecorded conveyance.
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LANGUAGE OF A NOTICE STATUTE
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A notice statute typically reads as follows: A conveyance of an interest in property shall not be valid against any person (subsequent purchaser) except those having actual notice of it, unless it is recorded.
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RACE-NOTICE STATUTE
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In a race-notice jurisdiction, if B is a bona fide purchaser for value, B wins if he records properly before A. In other words, a BFP is not protected until he records.
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LANGUAGE OF A RACE NOTICE STATUTE
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A conveyance of an interest in real property is void as against any subsequent purchaser for value without notice, whose conveyance is first duly (or properly) recorded.
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BONA FIDE PURCHASER FOR VALUE
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A BFP must have purchased for value and must not have had notice of A’s existence at the time that B took. A bona fide purchaser acts in good faith.
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ACTUAL NOTICE
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The buyer had literal knowledge of the restriction before purchasing.
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INQUIRY NOTICE
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A buyer is charged with inquiry notice of those facts that would be apparent if he inspected the land, even if he failed to do such an inspection. Inquiry notice may be created in a variety of situations: 1) if someone else is in possession of the land 2) in a commercial situation, there may be a duty to inquire about whether there are any special lease arrangements or options to renew 3) if there are documents mentioned in recorded documents, such as an old deed is “subject to” a mortgage, or a mortgage is not recorded 4) a quitclaim deed 5) a common scheme of development 6) a visible easement
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RECORD NOTICE
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Record notice is the form of notice imputed to buyers on the basis of public records. B is on record notice of A’s deed if, at the time B takes, A’s deed was properly recorded within the chain of title.
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COLLATERAL DOCUMENTS RULE
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Some jurisdictions follow the collateral document rule, which says that a grantee has constructive notice of the contents of all the deeds of adjacent properties from a common grantor.
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WILD DEED
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A deed from a grantor with an unrecorded interest to a new grantee is a wild deed.
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OUTSIDE THE CHAIN OF TITLE
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A deed that is outside the chain of title does not give notice to a BFP. O sells Blackacre to A, who does not record. A then sells to B, who does record. B’s deed is outside the chain of title because there is no record of the O to A transaction.
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DEED RECORDED TOO LATE
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If O grants an easement and then subsequently sells the property to another, if the easement is recorded after the subsequent sale, it is too late.
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LIMITED SEARCH RULE
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In some jurisdictions, a title searcher only has to search to find the grantor’s name as a grantee; the title searcher wouldn’t have to take into account any subsequent transfers by the prior grantor. Under an extended search rule, the title search must search to today under the name of anyone who ever owned the property.
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SHELTER DOCTRINE
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A bona fide purchaser for value who records takes free of the previous interest and can “shelter” a subsequent buyer even if that subsequent buyer knows of the competing interest.
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COVENANTS OF TITLE
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The purpose of covenants of title came from the common law because there was no recording system. The common law rule was first in time, first in right. The promises were in the deed, not the contract.
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QUITCLAIM DEED
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With a quitclaim deed, the grantor conveys whatever title he owns without warranty as to his title.
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GENERAL WARRANTY DEED
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The Mother Teresa of deeds contains six covenants. Three are present covenants: Right to Convey, Seisin and Encumbrances. Three are future covenants: Quiet enjoyment, Warranty and Further assurances.
SEC FEW NEW Present: Seisen Encumbrances Convey Future: Further assurances, Enjoyment and Warranty |
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PRESENT COVENANTS
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The present covenants are right to Convey, Encumbrances and Seisen. They are personal and do not run with the land. They are violated, if at all, at the moment of transfer.
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FUTURE COVENANTS
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The future covenants are Assurances, General warranty and Enjoyment. AGE
The future covenants run with the land and they are violated only when a party is later evicted actually or constructively. |
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COVENANT OF SEISEN
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Grantor promises that he owns the land that he now claims to convey.
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COVENANT OF RIGHT TO CONVEY
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Grantor promises that he has the power to make this transfer. He is under no restraints or temporary disabilities that would compromise his ability to make this transfer.
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COVENANT AGAINST ENCUMBERANCES
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Grantor promises that there are no liens or servitudes on the property, although this covenant can be waived. Interests covered by the covenant against encumbrances include mortgages, easements, leases, restrictive covenants, profits and dower rights. The majority of jurisdictions, this covenant against encumberances (to title or physical) is breached if the grantee was aware of the encumberance.
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COVENANT OF QUIET ENJOYMENT
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Grantor promises that the grantee will not be disturbed in possession because of someone else’s lawful claim of title.
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COVENANT OF FURTHER ASSURANCES
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Grantor promises to do whatever acts are necessary to protect grantee’s title, such as signing additional documents.
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COVENANT OF WARRANTY
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Grantor promises to defend grantee against anyone’s lawful claim of title.
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SPECIAL WARRANTY DEED
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The special warranty deed contains the covenants of seisin, covenant of right to convey and covenant against encumbrances but the grantor makes only the promises only on his own behalf, not on behalf of prior grantors.
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ESTOPPEL BY DEED
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The doctrine of estoppel by deed, also called the “after-acquired title doctrine,” says that if a grantor purports to convey an estate larger than he has, and he later obtains the title that he’s already purportedly conveyed, title automatically passes to the grantee by estoppel.
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DAMAGES FOR BREACH OF FUTURE COVENANTS
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If the title is completely defective, the grantee gets the purchase price plus interest. If title is partially defective (for example, there is an easement on the property that violates the covenant against encumbrances), grantee gets partial refund of purchase price plus interest. If the title is not defective (for example, a mortgage on the property that grantor agrees to pay off), the grantee gets nominal damages.
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COVENANT
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A covenant is a promise to do or not do something related to land that is capable of binding successors to the originally covenanting parties. It is not a grant of a property interest but is a contractual limitation regarding the land. A covenant is a legal device; if damages are being sought because of a violation of a promise regarding land, construe the promise as a real covenant. If an injunction is sought, construe it as an equitable servitude.
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RESTRICTIVE COVENANT
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A restrictive covenant is a promise to refrain from doing something related to land.
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AFFIRMATIVE COVENANT
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An affirmative covenant is a promise to do something related to land.
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RUNNING WITH THE LAND
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A covenant is said to run with the land when it is capable of binding successors.
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FOR THE BURDEN TO RUN
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WITHN. For the burden to run with the land, it takes
1. Writing -- between original landowners 2. Intent -- to bind successors 3. Touch and concern the land 4. Horizontal and vertical privity and 5. Notice |
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TOUCH AND CONCERN
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The promise must touch and concern the land, meaning that it must affect the parties’ legal relationship as landowners, not just as general members of the public .One test is whether the covenant increases or diminishes the usefulness of the land or its value.
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COVENANTS THAT RUN WITH THE LAND
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Covenant to pay rent; to insure the buildings on lease premises; option to purchase leased premises; restriction against selling liquor on leased premises; to build a structure on leased premises; not to assign or sublease premises; to supply water, light or heat on leased premises. Most courts hold covenants not to compete run with the land.
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COVENANTS THAT DO NOT RUN WITH THE LAND
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Covenant to pay promissory note of the covenantee; to pay taxes on land other than leased premises; and, of course, purely personal covenants.
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HORIZONTAL PRIVITY
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Horizontal privity refers to the connection between the original parties, who must be in succession of estate. Horizontal privity exists in these relationships: grantor-grantee; landlord-tenant; mortgagor-mortgagee, or they shared some other servitude in common in addition to the covenant now in question.
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VERTICAL PRIVITY
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Vertical privity requires some non-hostile connection between the successors to the property, such as contract, blood, devise.
Strict vertical privity is required for the burden to run. The same fee must be transferred for it to be strict vertical privity. Strict vertical privity is required for the burden to run. Relaxed vertical privity is required for the benefit to run. The only time relaxed vertical privity will be not present is if the successor is an adverse possessor. |
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NOTICE
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The party to be burdened by the promise must have had some notice when he took. This could be actual, record or inquiry notice. See more on notice in recording section.
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FOR THE BENEFIT TO RUN WITH THE LAND
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WITV
1. Writing 2. Intent 3. Touch and concern 4. Vertical privity Horizontal privity and notice are not required. |
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EQUITABLE SERVITUDE
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An equitable servitude is a promise about the land that equity will enforce against successors. It is accompanied by injunctive relief.
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FOR AN EQUITABLE SERVITUDE TO RUN WITH THE LAND
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WITNES
1. Writing 2. Intent 3. Touch and concern and 4. Notice. The ES is a reminder that it is an equitable servitude. Privity is not required to bind successors to an equitable servitude. |
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IMPLIED EQUITABLE SERVITUDE OR COMMON SCHEME DOCTRINE
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Equitable servitudes are generally created in writing, but the majority of courts recognized the implied equitable servitude through the common scheme doctrine. The two elements of the common scheme doctrine are 1) when sales began, the subdivider had a general scheme of residential development that included the lot now in question and 2) the defendant had some form of notice of the scheme.
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INQUIRY NOTICE FOR COMMON SCHEME DOCTRINE
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A buyer is charged with inquiry notice of those facts that would be apparent if he inspected the land, even if he failed to do such an inspection. In a common scheme case, the buyer would have inquiry notice if the neighborhood seemed to conform to some common residential restriction.
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CHANGED CIRCUMSTANCES DEFENSE
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A change in neighborhood can be a grounds for affirmative relief against restrictive covenants but it must be a change that has been so radical as to render perpetuation of the restriction of no substantial benefit to the dominant estate and to defeat the object or purpose of the restriction. Laches will apply if there was a broad enough waiver to cover the situation at hand.
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DEFENSES TO AN EQUITABLE SERVITUDE
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An equitable servitude will be enforced unless it violates public policy or it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise places burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced. The reasonableness of a restriction is to be determined by reference to the common interest project as a whole, not by reference to the facts about one householder.
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EXTINGUISHING AN EQUITABLE SERVITUDE
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A court may cause a restrictive covenant to become extinguished if the restriction is of no actual or substantial benefit to the persons seeking its enforcement either because the purpose has been accomplished, or under circumstances, its purpose is not capable of accomplishment. The party otherwise entitled to enforcement is required to be paid.
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CHECKLIST FOR ANSWERING COVENANT PROBLEMS
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To answer a covenant problem, check all the following:
1, Is there a promise? 2. What is the scope of the promise? 3. Was the promise violated? 4. Can the promise be enforced? 5. Is there a running problem? 6. Are there any defenses to enforcement? 7. What is the remedy? MNEMONIC QUESTION: Did the sizable broken promise run pas the defenses to require a remedy? |
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EASEMENT
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An easement is the grant of a non-possessory property interest in land.
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DETERMINING IF AN EASEMENT OR FEE WAS TRANSFERRED
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The factors in favor of an easement, rather than a fee, being transferred are: limited use, limited purpose; indefinite boundaries and a sale price less than the fair market value of the land in question.
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DOMINANT TENEMENT
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The property that derives the benefit from the easement is the dominant tenement. The dominant tenement has both the duty and right to maintain or repair the easement.
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SERVIENT TENEMENT
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The property that is burdened by the easement is the servient tenement. The owner of the servient estate cannot improvements to an easement that will interfere with the reasonable use and enjoyment of it.
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AFFIRMATIVE EASEMENT
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An affirmative easement gives the holder the right to do something on another’s land, which is called the servient tenement.
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NEGATIVE EASEMENT
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A negative easement entitles its holder to compel the servient landowner to refrain from doing something on the servient land that would otherwise be permissible. A negative easement must always be created in writing.
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RECOGNIZED NEGATIVE EASEMENTS
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Negative easements are only recognized in four narrow categories: Light, Air, Support and Streamwater from an artificial flow. LASS.
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EASEMENT APPURTENANT
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For an easement appurtenant, there must always be a benefited parcel, the dominant tenement, and a burdened, or servient tenement. The easement holder derives a benefit linked to his use and enjoyment of his dominant tenement.
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EASEMENT IN GROSS
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An easement is in gross when it confers upon its holder only a personal or commercial gain, not linked to the use and enjoyment of his land.
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TRANSFERABILITY OF AN EASEMENT APPURTENANT
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An easement appurtenant is transferred automatically with the dominant tenement, regardless of whether it is even mentioned in the transfer. But if the easement is express and the buyer is a BFPV, without notice of the easement, the buyer takes free of the easement. A successor who is not a BFPV is subject to the easement even if he or she had no notice.
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TRANSFERABILITY OF AN EASEMENT IN GROSS
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An easement in gross is not transferable unless it is for commercial purposes, such as utility lines. Commercial easements in gross are assignable.
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CREATION OF AN EASEMENT
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There are four ways to create an affirmative easement:
1. Prescription, 2. Implication 3. Necessity and 4. Grant. PING |
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EASEMENT BY GRANT
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Because of the Statute of Frauds, an easement that could endure for more than one year must be in writing. It is usually in deed of easement. The scope of an easement is set by the terms that created it. Some increased use may be acceptable, but it cannot be unilaterally expanded to serve another lot.
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EASEMENT BY IMPLICATION
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An easement by implication arises when the parties intended to create an easement but neglected to include it in the written agreement. Essential elements are:
1. one parcel is split into two parcels, and one portion that previously served the other is now split off 2. prior use before separation to a degree showing permanency 3. use is open and visible and 4. use of claimed easement must be reasonably necessary to beneficial enjoyment of parcel to be benefited. Parcels, Use, Reasonably necessary and Visible PURV |
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EASEMENT BY NECESSITY
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An easement of right of way will be implied by necessity if a grantor conveys a portion of his land with no way out, except over some part of the grantor’s remaining land. (the landlocked parcel has an easement by necessity).
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KEY FACTORS IN DETERMINING IF AN EASEMENT BY NECESSITY WAS CREATED
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The intent of the parties to create a permanent encumbrance is key. Factors in deciding if that were the case include
1. degree of necessity 2. time of severance of common ownership 3. apparency of prior use and 4. distinguishing precedent |
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DEGREE OF NECESSITY
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The degree of necessity for an implied easement based on prior use.
No necessity – sufficient that use existed when parcels split. Reasonably necessary (Restatement) Essential to beneficial use of dominant parcel Strictly necessary The standard for an easement based on prior use is usually reasonable necessity. Strict necessity is usually associated with an easement by reservation |
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NOTICE
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An easement may be implied from existing use if the previous use was readily apparent and the parties reasonably expected the use to survive division because it is reasonably necessary to the continued use and enjoyment of the benefited parcel.
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READILY APPARENT
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An easement is readily apparent if it could discerned upon a reasonable inspection; water pipes are apparent even though not visible except upon a thorough inspection.
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EASEMENT BY PRESCRIPTION
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An affirmative easement may be acquired by satisfying the elements of adverse possession. The adverse possession must be Continuous; Open and notorious; Actual and Hostile. COAH
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SCOPE OF AN EASEMENT
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Reasonable changes in the use of an easement may be made for any purpose to which the dominant estate may be reasonably devoted as long as it doesn’t overburden the servient parcel.
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MISUSE OF AN EASEMENT
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An easement is misused by the dominant estate if the easement is used for purposes that are beyond the scope of the easement or to serve a parcel other than the dominant estate. In the case of an implied easement, the scope is determined by its prior use. But, even in cases of implied easements, the nature of the use can change with the times, as there is an expectation that there will a natural increased in the intensity of use of the land. The changes must be for those activities that were reasonably contemplated when the easement was created and must not overburden the servient tenement.
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EXTINGUISHING AN EASEMENT
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An easement can be extinguished in the following ways:
1. Release – a written release 2. Condition reached – A condition specified in the easement has been met. 3. Merger – if one person comes to own both parcels 4. Condemnation or destruction of the servient estate. 5. Abandonment – Mere non-use of an easement, nomatter how long continued, will not be sufficent to end an easement. But non-use coupled with an intent to abandon is sufficient. 6. Prescription – When the servient tenant has used her land continuously for the statutory period in a way that is inconsistent and adverse to the easement and without the consent of the dominant tenant, it will be ended. 7. Estoppel – When the servient tenant, in reasonable reliance on the conduct of the dominant tenant, uses his servient tenement in a manner inconsistent with the existence of the easement and it would be inequitable to permit further use of the easement, the easement is extinguished by estoppel. |
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PRIVATE NUISANCE
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A private nuisance is a substantial, unreasonable interference with another private individual’s use or enjoyment of his property.
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SUBSTANTIAL ELEMENT OF NUISANCE
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The interference must be inconvenient, annoying or offensive to an average person in the community, not a hypersensitive plaintiff.
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UNREASONABLE ELEMENT OF NUISANCE
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For the interference to be unreasonable, the severity of the injury must outweigh the utility of the defendant's conduct.
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FACTORS WEIGHED IN DETERMINING A NUISANCE
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Factors in evaluating a nuisance include:
1. Nature of the defendant's conduct 2. Extent and intensity of an 3. Social utility of the defendant's activities 4. Nature of the area in which the interference takes place 5. Compliance with zoning regulations If it is a highly socially useful activity, that may outweigh a minor interference with the plaintiff' use and enjoyment of his property. |
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DEFENSES TO NUISANCE
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Under common law, that the nuisance pre-existed the arrival of the plaintiff was a defense. Modernly, the "coming to the nuisance" may not succeed if the charcter of the area has changed.
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REMEDIES FOR NUISANCE
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Traditionally, the remedy was an injunction but courts were reluctant to impose them if it would damage significant economic interests. Modernly, the court may order damages if the injury is slight. If the problem can be ameliorated in some way, the court may order remedial measures to be paid for by the party more at fault. The court will also weigh what is the most economically efficient way to handle the situation.
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EMINENT DOMAIN
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Eminent domain is the power of the state and federal governments to take private property.
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TAKING
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To decide if a government regulation consists of a taking, the court will consider
1. extent of the taking (whether thre was a physical invasion); 2. public interest and 3. extent to which the value of the property is diminished. A taking can also be a temporary interruption. |
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TAKING
When found |
There is a taking if
1. physical invasion of land 2. rendered valueless |
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RENDERED VALUELESS
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If the land is rendered completely valueless, there is a taking.
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POLICE POWER FOR TAKINGS
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State governments derive authority form the Ninth and 10th Amendments. The authority of the states to legislate is called the police power. It must be used for the purpose of promoting the health, safety, morals and general welfare of the people.
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TEST FOR POLICE POWER
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The courts are deferential to the legislature in deciding if a law is a proper exercise of police power. Rational basis scrutiny is used.
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FIFTH AMENDMENT TAKINGS CLAUSE
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The Fifth Amendment provides that private property shall not be taken for public use without just compensation. This is known as the Takings Clause.
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JUST COMPENSATION
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Just compensation is fair market value for the most profitable use of the land, regardless of the use intended for it. If the government takes only part of the property, it may be liable for the cost of that portion plus any diminution in value that results from the partial taking.
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DUE PROCESS FOR TAKING OF PROPERTY
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Property also cannot be taken without substantive Due Process. Due Process is violated if the legislation is arbitrary; that is, if it doesn'tt substantially promote the health, safety, morals and general welfare of the public.
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ZONING LAWS
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Zoning laws are a proper use of police power if they serve a legitimate public purpose, such as separating incompatible uses, protecting residential districts, promoting family values and aesthetics. Impermissable objectives are preventing population growth; preventing progress and development and excluding certain groups, unless shown to directly promote a legitimate government objective.
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ZONING LAW FACIAL CHALLENGE
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A zoning law can be challenged as unconstitutional if the law is arbitrary and not a legitimate use of the police power. If the law advances a legitimate purpose, such as separating incompatible uses, it is not arbitrary (Euclid v. Ambler). If zoning does not advance a legitimate purpose, it is arbitrary (Nectow v. City of Cambridge).
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"AS APPLIED" CHALLENGE
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An as-applied challenge argues that Due Process and Equal Protection were violated because the law, although constitutional, was not applied fairly in a particular case.
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PENN CENTRAL BALANCING TEST
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In deciding whether there has been a taking, the court will consider the Penn Central test and will balance whether the regulation is substantially related to the general welfare and whether the owners still have reasonable, beneficial use of the property. The court will look at
1. Economic impact of the regulation --reduction in value of the property and investment-backed expectations of the property owners 2. Character of the taking-- physical invasion v. regulation 3. No interference with present use -- owners can still get a reasonable return |
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ESSENTIAL SUMMARY OF TAKINGS LAW
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There is no taking if the regulation
1. Substantially advances legitimate state interests 2. Does not deny the owner economically viable use of his land and 3. Does not physically occupy the land. |
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NOXIOUS USE PROBLEM
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That legislature has prohibited a use as "noxious," does not mean there has not been a taking under the Fifth Amendment. The only noxious uses that can be prohibited without compensation are uses that would constitute nuisances under the background common law of the jurisdiction. (Lucas v. South Carolina)
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EXACTIONS
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Exactions are concessions that are extracted by government from builders in exchange for zoning concessions. If the government could lawfully withhold the permission to build, it is permissible for the permission to be given in exchange for getting something from the builder.
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NOLAN-DOLAN TEST FOR EXACTIONS
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A two-part test is used to determine if an exaction is constitutional.
1. There must be an essential nexus between the problem to be solved and the concessions exacted. 2. There must be a rough proportionality between the problem and the exaction. This requires a closer connection between the goals and the means than the essential nexus that is the first part of the test. |
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ROUGH PROPORTIONALITY
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Whether there is a rough proportionality is an individualized determination that the required exaction is related both in the nature and extent to the proposed impact of the development.
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PROPERTY
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Everything which is subject to ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; the right to exercise dominion or control to the total exclusion of anyone else
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REAL PROPERTY
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Immovable property; consisting of land, things affixed to land; things incident or appurtenant to land, and things immovable by law; also land generally what is erected or growing upon or affixed to land including tenements and herditaments
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PERSONAL PROPERTY
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Everything that is subject to ownership, not coming under the denomination of real property; movable property, not considered real property; also, a right or interest in things personal or any right or interest less than a freehold in realty, or any right or interest which one has in movable property.
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POSSESSION
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The assertion of custody or control over personal property; not necessarily the equivalent of ownership
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FERAE NATURAE
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Animals, fish or fowl that is wild or wild in nature
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COMMON LAW
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The body of law and juristic theory, which was originated, developed, formulated and is administered in England; it is distinguished from the Roman law, the civil law, the canon law and other systems.
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ANIMUS REVERTENDI
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Evidence in animals exhibiting an intention to return from where it escaped
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CHATTEL
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Tangible personal property
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CONVERSION
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The intentional exercising of dominion and control over personal property of another with the intention of depriving the owner of use, benefit and enjoyment
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TROVER
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A form of action for damages for property wrongfully converted by another to his own use, the result of which is money damages for the fair market value of the thing converted; the result of a judgment and satisfaction in a lawsuit that is a forced sale from the owner to the converter
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REPLEVIN
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A form of action to recover possession of personal property wrongfully converted
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FINDER
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A person who becomes a kind of gratuitous/quasi-bailee resulting (when) he/she discovers and takes custody of personal property belonging to another
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TRESPASS DE BONIS ASPORTATIS
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The taking and carrying away (of ) personal property
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LOST CHATTEL
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Personal property, (of) which the owner/possessor has been dispossessed involuntarily, accidentally or through negligence, and where the owner/possessor is ignorant of the chattel’s whereabouts or cannot recover it through an ordinary diligent search
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MISLAID CHATTEL
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Personal property that the owner/possessor deposits in a place and cannot afterward recollect
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ABANDONED CHATTEL
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Personal property, the owner of which relinquishes title and possession without vesting them in anyone else; title to the abandoned chattel passes to the first appropriator intending to take possession
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TREASURE TROVE
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Money or coin; gold, silver, plate or bullion, found hidden in the earth or other private place, the owner thereof being unknown
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CHOSE IN ACTION
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A personal right not reduced to possession, but recoverable at law; also a right to personal things which the owner has not possession, but merely a right of action for their possession.
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GIFT
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A voluntary transfer of real or personal property without consideration between the donor or transferee and the donee or intended recipient of title.
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TESTAMENTARY GIFT
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A gift made by will or intestate succession, which is effective on the death of the testator/deceased.
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INTERVIVOS GIFT
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A gift made during the lifetime of the donor; gifts of personal property require donative intent, delivery of the subject matter of the gift and acceptance by the intended donee; intervivos gifts are irrevocable and the title passes immediately to intended donee.
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CAUSA MORTIS GIFT
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An intervivos gift made in expectation of imminent death; the contemplated death must be imminent and the donor’s fear of death rational; the gift is revocable until the death of the donor.
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ADVERSE POSSESSION
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A method of acquiring ownership of real property and, in some jurisdictions, personal property by maintaining possession for a stated period; possession must be open, notorious, unequivocal, continuous, apparent, actual and exclusive,
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TACKING
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Is when an adverse possessor can claim periods of prior possession by predecessors in privity
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PRIVITY
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The some special relationship between parties resulting from a sale, inheritance, gift or other contract.
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ACCESSION OF CHATTEL
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A method of acquiring ownership of chattel by improvement or augmentation.
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BAILMENT
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The delivery of personal property in trust; it is created by an agreement or understanding between the bailor, who delivers chattel, and the bailee, who receives chattel (a meeting of minds) for the purpose generally found within the agreement or understanding of the bailer and bailee.
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CONSIGNMENT
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A special form of bailment, in which the consignor confers upon the consignee the power to transfer title of the personal property to a third party.
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GRATUITOUS BAILMENT
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A bailment without consideration
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NON-GRATUITOUS BAILMENT
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A bailment for consideration; it includes a bailment for hire.
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VOLUNTARY BAILEE
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One who knowingly accepts the delivery of personal property or who exercises dominion and control over personal property.
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INVOLUNTARY BAILEE
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One who, without knowledge or consent, has personal property thrust on him.
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LIEN
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A legal claim or charge against either title or right to possess real or personal property.
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POSSESSORY LIEN
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A special form of bailment, in which the lienee’s personal property is delivered to the lienor for the purpose o improving the personal property; a lienor, who expends labor and material in improving and enhancing the value of personal property, may withhold redelivery until paid in full for services rendered.
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NON-POSSESSORY LIEN
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Created by contract, such as a mortgage, trust deed, chattel mortgage, or conditional sales contract; it generally gives the lienholder, i.e. mortgagor or conditional vendor, the right of repossession or foreclosure on breach of contract or default.
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MORTGAGE
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An estate created by a conveyance, absolute in form, intended to secure the performance of some act, such as the payment of money, by the guarantor.
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SUBLEASE
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The conveyance of a lease by a leaseholder (tenant) to a third party for less than entire remaining term of the lease is a sublease. The subleasee does nto have privity of estate and does nto have liability to the landlord for the remaining lease payments.
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ASSIGNMENT OF A LEASE
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The conveyance of a lease by a leaseholder to a third party for the entire remaining term of the lease is an assignment of the lease. The assignor retains secondarily liable for the remaining ing lease payments and the assignee becomes primarily liable to the landlord for all covenants because there is privity of estate.
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WATER USE RIGHTS
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Under the common law, domestic use of surface water had priority over agricultural or industrial uses. Modernly, some states follow the prior appropriate doctrine that the first party to use surface water acquired superior rights over later uses.
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SURRENDER AND ACCEPTANCE
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Under the common law, a leaseholder had no liability for unpaid rent if he abandoned the land and the landlord then reentered and took possesion. Moderly, some states absolve the leaseholder of liability unless the landlor reenters with notice of intent to continue to hold the leaseholder liable. Some states require landlords to reenter and take action to mitigate damages.
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MORTGAGES
Effect of foreclosure on junior interests |
Foreclosure destroys all intersets junior to the mortgage being foreclosed, including easements. However, all parties with subordinate interests in the property must be included as necessary parties. Failure to include a necessary party results in preservation of that party's interests despite foreclosure and sale.
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JOINT TENANCY
Creation and four unities |
Joint tenants hold property with a right of survivorship. IEach tenant is entitled to occupy the entire premises, subject only to the rights of the other tenants, and tenants must hold in equal shares.
Four unities --The creation of a joint tenancy requires the four unities of time, title, interest and possession. If one of those elements is not present, it is a tenancy in common. The language to create a joint tenancy must be very specific. “Jointly” is not enough. |
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JOINT TENANCY
Severing a joint tenancy |
A joint tenancy can be severed by
1. One joint tenant conveying his interest to a third party. If there are multiple joint tenants, and one conveys his interest to a third party, the stranger and the original joint tenants will have a tenancy in common but joint tenancy continues between the original members. 2. Possibly by a mortgage. Under the “title” theory of mortgages it does; under the “lien” theory it does not. 3. Most courts agree that a lease does not sever the joint tenancy. |
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JOINT TENANCY
Rights and duties |
A co-tenant in possession
1. generally does not have to pay rent unless he has ousted the other cotenants 2. may have to account if he has depleted the land 3. has the right to retain profits gained by his use of the land 4. must share rents gained from third parties, minus their share of expenses 5. Contribution from non-possessory cotenants may be required for necessary repairs, taxes and mortgages but not for improvements. |
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SHELTER DOCTRINE
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O to A, an easement in 2000. O to B, who records in 2001. A records the easement in 2002. B to C, who records in 2003.
C takes free of A and/or B provides “shelter” to B if B is a BFP. Since A did not record the easement before O to B, B did not have record notice. |
