Term
"to a"/ "to a and his heirs" |
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Definition
FSA transfer: "to a"- words of purchase "and his heirs"- words of limitation |
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Term
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Definition
Intent to convey- operative words for ASSIGNMENTS |
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Term
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Definition
Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
Intent to convey- operative words for LEASE |
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Term
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Definition
Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
"if --- survives than ----" |
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Definition
survivorship requirement, this is a condition precedent |
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Term
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Definition
Intent to convey- operative words for LEASE |
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Term
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Definition
Intent to convey- operative words for LEASE |
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Term
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Definition
Intent to convey- operative words for ASSIGNMENTS |
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Term
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Definition
Intent to convey- operative words for Quitclaim Deed |
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Term
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Definition
Intent to convey- operative words for Quitclaim Deed |
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Term
"remise release and forever quitclaim…. All my right, title and interest" |
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Definition
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Term
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Definition
Intent to convey- operative words for Quitclaim Deed |
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Term
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Definition
used to determine whether subsequent purchasors can enforce / be obligated to honor the covenant; this DOES NOT deal with the validity of the contract between the parties |
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Term
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Definition
Intent to convey- operative words for DEEDS/ MORTGAGES |
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Term
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Definition
unascertained. The original __ could have died and the widow could have remarried. ___ assumes that his widow will remain this way indefinitely which makes this an EXCEPTATION INTEREST (not a recognizable property interest) |
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Term
"to A and B as joint tenants with right of survivorship AND NOT TENANCY IN COMMON" |
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Definition
this creates JT w RS, the presumption of court to create TIC must be overcome by terms that demonstrate the intent of grantor to specifically create JT w RS |
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Term
"to A and B as joint tenants, remainder to their survivors |
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Definition
creates joint LE with CR in survivor; it is not a JT w RS b/c this does not include the power of a JT to unilaterally server his interest from JT and become TIC |
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Term
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Definition
TIC created, no express terms of survivorship; "to a and B as JOINT TENANTS" may be sufficient to create JT w RS but it depends on the courts interpretation |
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Term
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Definition
Intent to convey- operative words for ASSIGNMENTS |
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Term
10 ways to terminate an easemnt |
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Definition
1) By Terms of the grant, 2) Purpose of the Easement Ends, 3) Merger, 4) Forfeiture for MISUSE 5) Release, 6) Abandonment, 7 ) Estoppel, 8) Prescription, 9) Recording Acts, 10) Eminent Domain |
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Term
2 assumptions of bailment |
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Definition
1) the purpose of holding posession is for safekeeping/repair/transportation/ some other purpose more limited than dealing with the item as the bailor would, and 2) thr return of the object/ chattel in the same or substancially undamaged condition is assumed |
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Term
2 elements to be a Bona Fide Purchasor |
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Definition
1) paying value of land, 2) lacking notice of prior conveyance |
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Term
2 exceptions to good title |
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Definition
1) true owner is tricked tricked by fraud/ misrepresenation into voluntarily parting with the title, 2) dishonest purchaser misrepresnted his identity ----> these are cases of VOIDABLE TITLE |
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Term
2 major rules of construction |
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Definition
1) a testator (deceased person with a will) intended to give away all his property through his wil and any will that does not give awat all property is disfavored opposed to one that give away all property, 2) grantor/ testator conveys full interest in the property unless the intent to pass a lesser estate is clearly expressed or necessarily implied by the terms of the deed/will |
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Term
2 requirements of posession |
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Definition
1) intent to possess by possessor 2) possessors actual controll/holding the property, ie exclusive control |
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Term
2 tests to determine Touch and concern (real covenant/ equitable servitude) |
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Definition
1) Bigalo test, 2) Burton Test |
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Term
2 traits of modern Tenancy by the Entirties |
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Definition
1) creditors can only forclose on TBE if both spouses are liable for the debt/ executed the mortgage 2) both must execute the deed of sale to the property (if selling the property) --> the bank cannot collect the property from nondebtor spouse after the debtors death, but can collect any rents from the property if it is being rented/ spouse not living on the lland |
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Term
2 types of descipriuon by quantity |
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Definition
1) an undivided fractional interest/ fractional part of the tract ( half of lot one) 2) a certain width or area ( the west 5 acres of blackacre) |
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Term
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Definition
1) present possessory interest (present interests), 2) future possessory interests (future interests) |
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Term
2 types of FI (who holds) |
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Definition
FI held by transferor/ grantor, 2) FI held by 3rd party |
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Term
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Definition
1) inter vivos gift, 2) causa mortis |
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Term
2 types of vested remainders subject to divestment |
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Definition
devestment based on the occurrence 1) before the future interest holder takes possession, 2) after FE divested after it becomes possessory --- important b/c the type determines how to describe it case 1 "VR subject to DIVESTMENT in _____(type of estate)___" 2) "VR in _____(type of estate)_____ SUBJECT TO DIVESTMENT) |
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Term
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Definition
1) annexed to the property 2) must be part of some larger purpose on land beyond itself 3)intent to attach the fixture to the property |
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Term
3 elements REQUIRED for implied easement by necessity |
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Definition
1) common owner severed the property, 2) necessity for egress and ingress existed at the time of severance, 3) ingress and egress are strictly necessary FOR THE LANDLOCKED PARCEL |
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Term
3 requirement of Equitable servitudes |
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Definition
1) intent to bind successors, 2) touch & concern, 3) Notice |
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Term
3 requirements for Real Covenants |
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Definition
1) Intend to bind successors, 2) Touch & Concern, 3) Privity of Estate--- requiring Horizontal and vertical privity |
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Term
3 requirements for Shelly's Case |
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Definition
1) freehold estate (usually a LE) given to 1st transferee, 2) R limited to the heirs of the 1st transferee made in same instrument, and 3) FREEHOLD AND REMAINDER MUST BE IN SAME QUALITY (either both Legal, Equitable or Legal&Equitable) |
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Term
3 requiremnts for inter vivos gift |
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Definition
1) doner's intent to transfer ownership of the item to the donee/receiver, 2)delivery of the object to the donee/reciever, 3) Donee/ receivers acceptance of the gift |
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Term
3 scinerios of deed without identified grantee |
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Definition
1) intended grantee is entitled to equitable relief of REFORMATION OF THE DEED(to include grantees name) or SPECIFIC PERFORMANCE( deed is treated as specifically performable K) 2) Holder of the deed may be held to have authority (either EXPRESS OR IMPLIED) to fill in the name of the grantee or another as grantee; 3) Grantor subsequent attempt to sell the land will be ESTOPPED TO DENY THE VALIDITY OF THE DEED |
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Term
3 types of concurrent interest |
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Definition
1) Tenancy in commmon, 2) Joint Tenancy with right of Survivorship, and 3) Tenancy by the entirety (each may be PI or FI, and held in any FS Estate) |
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Term
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Definition
1) Warranty deeds, 2) Special warranty Deed 3) Quitclaim deed |
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Term
3 types of defeasable estates |
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Definition
1) Fee Simple Determinable, 2) FS subject to Executory Limitation, 3) FS subject to Condition Subsequent |
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Term
3 types of FI in Transferees |
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Definition
1) vested remainders 2) contingent remainders 3) Executory interests |
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Term
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Definition
1) Term of years, 2) Periodic Tenancy, 3) Tenancy at will |
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Term
3 types of recording acts |
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Definition
1) Race, 2)Notice, 3)Race/ Notice |
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Term
4 basic requirments for implied easements |
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Definition
1) unity of ownership is severed, 2) use was in place before the severance, 3) use was visible or apparent at the time of the severance, 4) the easement is NECESSARY for the enjoyment of the Dominant tenement |
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Term
4 Requirements for Adverse Possession |
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Definition
The SoL does not start to run unless the possession relied on is: 1) Actual 2) Open & Notorious 3) hostile and Adverse (under a claimof right) 4) Exclsuive and Continuous |
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Term
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Definition
1) actual possession 2) open & notorious 3)exclusive controll 4) hostile or adverse 5) continuous (additional elements considered by courts: claim of good title/ right, good faith/ bad faith, improvement/ cultivation/ enclosure, payment of property taxes upon the land) |
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Term
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Definition
1) seisin, 2) right to convey, 3) against encumbrances (1-3 present covenants); 4) warranty, 5) quiet enjoyment, 6) future assurances (4-6 future covenant) |
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Term
6 Common methods of describing land within a deed |
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Definition
1) description in reference to the recorded plats of US GOVERNMENT SURVEYS, 2) descr in reference to VOLUNTARY/ PRIVATE plats or plats of official STATE surveys, 3) desc by refer to DESCRIPTIOMS APPERAING IN RECORD other than plats or to non-record facts, 4) descr by refer to OWNESHIP (ex. all land of X), 5) decription by specified boundaries (METES AND BOUNDS), 6) Description by QUANTITY |
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Term
6 requirements for a perscriptive easement |
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Definition
use must be: 1) actual, 2) open and notorious, 3) hostile and adverse, 4) continuous and uniterrupted, 5) exclusive, 6) use must be for a sufficient time |
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Term
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Definition
property that the owner has VOLUNTARILY reliquished all ownership of w/o refernce to any particular person or purpose; it is not necissary to show an INTENT TO RELINQUISH BOTH TITLE AND POSSESSION |
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Term
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Definition
property that the true owner intentionally and voluntarily relinquished with the intent not to own the ocject any longer; he must not have transferred the rights to the object to another |
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Term
Abandonment (Termination of Covenants and Equitable Servitudes) |
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Definition
requires 1)intent to abandon, 2) an act of abandonment. Both of these are required for individuals for personal covenants or a high number of landowners for common schemes. Common schemes can be abandoned (which is usually proven through considerable/ substancial change in the neighborhood) |
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Term
Abandonment (termination of easement) |
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Definition
requires 1) intent to abadon the easement, which is VERY HARD TO PROVE 2) subsequent nonuse. Non-use of easement coupled with OTHER ACTIONS WHICH INDICATE AN INTENT TO ABANDON (NB building non-temporary sturcture which prevents use is insufficient) |
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Term
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Definition
a complied summary of all the publicly-recorded documents affecting the land in question |
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Term
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Definition
the bailee must accept the delivered property; this doesn not have to be actual acceptance but constructive acceptance also works |
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Term
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Definition
When a grantor goes before an officer designated by statute (normally a notary) and validates that the deed is an executed instrustument in complaiance with local statutes; ACKNOWLEDGEMENT ONLY NECESSARY WHEN EXPRESSLY STATED IN STATUTE. When required this entitles the deed to recordation AND requires other proof of execution |
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Term
Acquiesence (Termination of Covenants and Equitable Servitudes) |
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Definition
when a benefitted owner allows/ takes no action against multiple & repeated violations of a covenant can be estopped from enforcement of the covenants b/c of the prior lack of enforcement; acquiesence DOES NOT CARRY OVER in cases of multiple covenants, so acquiesence of one cov will not terminate a different cov that has been enforced |
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Term
Actual (1st AP Requirment) |
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Definition
Possession is actual & Exclusive if there is an actual possession with an actual use & enjoyment of the land which an ‘average owner’ of such land would use and exercise this property |
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Term
Actual delivery (bailment) |
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Definition
bailor physically hands the property over to the bailee |
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Term
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Definition
subsequent purchasor/ or purchasor's agent had actual notice/ knowledge of a prior claim |
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Term
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Definition
exclusive physical control of the thing combined with a manifested intent to exclusively control/possess the thing on the possessor’s own account and in his own name; it is sufficient to intend to control the item yourself without intending to keep the item forever |
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Term
Actual Use (Prescriptive easement) |
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Definition
requires necessiary physical presence on the land, must be affirmative easement & use; claimant cannot compell his neighor to remove a structure for light & airb/c this is an implied negative easement |
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Term
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Definition
item is essencial to the functionality of a system on the property (ex. Oil burder to heating) |
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Term
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Definition
a person who is not the legal owner of the property, who may have entered as a trespassor, who uses the property for enough year to become the owner of the property. This defeats all the rights of the true/rightful owner EVEN IF OWNER HAS LEGAL OR RECORD TITL |
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Term
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Definition
When the period of SoL has run the presumption is that the person in possession has the right to possession which cannot be overcome by the former owner; the party in possession has an enforceable right to possession superior to everyone as the TRUE OWBER; in court the owner/ defendant must please this case by SoL running as an affirmative defense |
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Term
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Definition
a covenant that requires the owner of the burnened estate to perform some act/ pay money; these include the duty to maintain or repair |
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Term
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Definition
the easement grants the easement holder the right to enter onto the servient tenement for a specific purpose (ex. Use part of land to park) |
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Term
Affirmative/ valuntary waste |
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Definition
this occurs when the life tenant actively changes the property's use/ condition, usually which substancially decreases the property value |
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Term
Alianable/ Assignable/ Transferrable peropety |
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Definition
property which the owner can sell or give it away during the owners lifetime (throug inter vivos transfer) |
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Term
Alternative Contingent Remainder |
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Definition
one of the two named persons (who is not the grantor) takes to the exclusion of the other person based on whether or not the condition precedence occurs; if the condition OCCURS one party gets possession, if the event FAILS TO OCCUR the other party gains possession. THIS CANNOT OCCUR IS A PARTY'S REMAINDER IS VESTED |
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Term
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Definition
the ability of cotenant who incurred expenses that are neccissary for collecting the rent revenue for the property (if the rent is shared by the cotenants); this does not force contribution from others if expenses EXCEED REVENUES; he may be able to offset repairs or improvements ONLY TO THE AMOUNT THAT IS TRACABLE TO THE AMOUNT OF RENT RECIEVED( ie neccissary expenses if no rent increase, or the rational cost to increase rent rates) |
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Term
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Definition
attachment to the property, usually the determinative factor for fixtures; can be either actual or constructive |
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Term
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Definition
demand and refusal may be required |
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Term
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Definition
title passes ONLY AFTER SoL has run |
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Term
AP SoL and FS subject to CS |
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Definition
statute of limitations does not begin to run untill owner of reentry excercises his right; a minority of states begin SoL to run as soon as the condition occurs |
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Term
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Definition
easement can be sold, gifted, devised, inherited, or otherwise conveyed; assignability is dependant on several factors, most important being is easement IN GROSS or APPURTENANT |
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Term
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Definition
the conveyance by a lessee of the entire remaining balance of his estate for years |
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Term
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Definition
if tenant transfers entire interest to another VP is maintained |
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Term
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Definition
the act of witnessing an instrument in writing at the request of the party signing the doc & signing the instrument as a witness |
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Term
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Definition
person whom the bailor transfers his property to; this person is held strictly liable for failure to redeliver |
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Term
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Definition
bailement requires a delivery of posession; without this delivery there is no bailment. 3 types of delivery 1) actual delivery 2) constructive delivery, 3) symbolic delivery |
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Term
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Definition
the transfer and delivery by an owner or prior possessor (bailor) of posession of personal property to another (bailee): 1) the purpose of holding posession is for safekeeping/repair/transportation/ some other purpose more limited than dealing with the item as the bailor would, and 2) thr return of the object/ chattel in the same or substancially undamaged condition is assumed |
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Term
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Definition
the property owner who transfers his property to another through a bailment |
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Term
Bargain and sale deed (statute of uses) |
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Definition
this raises a use in the grantee by reason of his payment to the grantor of a valuable pencuniary consideration, which was executed by the statute of uses and vested the corresponding legal estate in the grantee |
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Term
Benefits that Touch and Concern the Land |
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Definition
must be analyzed seperately from burden t/c; the benefit must run with the land ex. Mainting property values of NEIGHBORING/ adjacent parcels |
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Term
Benefitted Estate (Real Covenant/ Equitable Servitude) |
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Definition
the property whose owner benefits from a covenant or servitude |
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Term
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Definition
A bona fide purchaser of stolen goods is not protected against the claim of the owner UNLESS the SoL has run on the owner. The risk is on the purchaser (since a secret, not open & notorious, holding of the property is presumed for stolen goods and running of SoL is unlikely) |
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Term
Bigalo test for common scheme |
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Definition
does common scheme force owner to do or refrain from doing things on property? |
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Term
Bigalow test (real covenant/ equitable servitude) |
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Definition
To do or refrain from doing a physical act on the leased premises: For the burden of a covenant to run, the covenant must directly affect the nature or quality or value of the thing demised or the mode of enjoying it by taking away from the promisor rights and privileges he or she would otherwise have as O of the land, absent the covenant. For benefit to run, it must benefit p/e by beneficially affecting both the nature or value of the p/e’s interest in the land or mode of enjoying it. |
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Term
Burden running with land, even when benefit is personal |
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Definition
in most juris allow burden to run even when benefit is personal by 3 approaches: 1) burden running despite personal nature, 2) the covenant WILL NOT RUN inless the covenant T/C BOTH BURDENED AND BENEFITTED LAND, 3) covenant will not run as real covenant T/C both burd and benefitted land, ES is enforced (even personal benefit) so long as the BURDEN T/C BURDENED LAND (last rational is used when the original party is seeking to enforce the covenant) |
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Term
Burdens that Touch and Concern the Land (Real Covenant and Equitable Servitudes) |
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Definition
covenants that restrict use usually constitute t/c; covenants to pay money are insufficient to satisfy t/c unless this monetary payment is a contractual obligation in which money is spent to maintain the property/ a common area (homeowners association payments or insurance payments where repayment SPECIFICALLY GOES TO RUBILDING DESTROYED AREAS) |
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Term
Burened Estate (Real Covenant/ Equitable Servitude) |
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Definition
the property whose owner is BOUND by a covenant to act/ bound not to act |
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Term
Burton Test (real covenant/ equitable servitude) |
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Definition
(to pay money or to do something elsewhere than on land): The burden of the promise must benefit the promisor as owner of the burdened estate in land. |
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Term
Burton test for common scheme |
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Definition
Does the owner have to pay money to do something or pay to refrain from doing this SOMEWHERE ELSE than the land in question (considerations for courts determination 1) close proximity 2) common use) |
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Term
Can a single person be bound as a promisee and promisor? |
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Definition
YES, under a covenant a person can receive the benefit and maintain the burden of the same covenant (think residential use only cov agreement, benefit they use land burden only use land for residency) |
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Term
Carrying charges payment by cotenant |
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Definition
if no Tenant is using the land with the responsibility to pay the CARRYING CHARGES (Insurance/ Taxes/ Interest), if a single cotenant pays he can seek contribution; all cotenatnts HAVE AN OBLIGATORY DUTY TO PAY insurance/ taxes/ interests; IF PAYING COTENANT IS ONLY PERSON USING THE PROPERTY CONTRIBUTION IS NOT REQUIRED |
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Term
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Definition
a gift made when the donor has an apprehension/ expectation of his own death and delivers the item with the intention that possession/ ownership starts immediately after he dies NOT AT THE TIME OF THE TRANSFER' gift is revocable if donor recover from the illness/ situation that brough fear of death |
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Term
Changed conditions (Termination of Covenants and Equitable Servitudes) |
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Definition
covenant in a subdivision can be found uneforcable because the cahnges in circumstances that the benefit is substancially effected and does not justify the burden. 2 types 1) changes within the subdivision, 2) changes outside the subdivision |
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Term
Changes OUTSIDE the subdivision |
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Definition
courts reluctant to eliminate the covenant upon the property b/c this will follow the DOMINO THEORY that each sucessive outer rung of houses will use this change to eliminate the cov |
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Term
Changes within the subdivision (Change of conditions, (Termination of Covenants and Equitable Servitudes)) |
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Definition
substancial changes either cancel the covenant or make it unenforceable |
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Term
neighbor builds upon another’s land (AP) |
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Definition
the court is likely to make the encroached sell this land to the encroacher if this building is erected without notice/ dispute of land prior to building’s completion |
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Term
Disability Statutes for AP |
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Definition
Extend the period of statute of limitations for a period of time after limitation ends; can be as short as 2-5 yrs, MD extends limitations a few years after disability ends, some jurisd extends to point where statute of limitations begins running when disability ends |
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Term
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Definition
Ap must be using the land with the intent to claim against everyone including the true owner, and intent to exclude everyone including true owner. (NB Some jurisdictions require that AP enter with belief that he was actual/ true owner of the land [color of title]) |
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Term
Claim of Right (Prescriptive easement) |
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Definition
this is hostile and adverse use; claimant uses another's property without regard tp the owners rights and without permission. Personal hostility not required, cannot enter land with permission. A gate or invalid deed could satisfy entrance w/o permission depending on the circumstance, if the use is WAY beyond peritted then the claimnant could have grounds that he used w/o permission----> courts use rebuttable presumption to determine permission (details EE pg. 486). |
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Term
Class closing by RULE OF CONVIENCE (VR subject to open) |
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Definition
a class closes whenevr any member can demand possession or distribution; this cannot occur before the termination of the preceeding LE or preceeding term for years or untill divestment condition occurs in FSS Executory Limitaion. (Note class members idenified within the class can still share interest even if they have not satisfied condition precedent at time member demands possession) |
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Term
Class that closes biologically/ naturally (VR subject to open) |
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Definition
this is a class that closes b/c no one else can be born into the group |
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Term
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Definition
a person enters into color of title when he claims ownership pursuant to a written document/ deed that proports to transfer property to the person & document is deffective (usually done through a fualty deed or sherriff's tax sale deed either of which was defective); this can signifigantly shorten the SoL period for AP. AT END OF AP PERDIOD AP GAINS OWNERSHIP OVER EVERYTHING DESCRIBED IN THE TITLE |
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Term
Commercial easements in gross |
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Definition
further moneymaking opportunity (not for the grantee's own personal enjoyment or pleasure); usually assignable, and only made unassignable by specific circumstances. (think purchasing phone company/ Railroad/ water company; without assignability the purchased companies lines cannot be used and the company could not operate). If assignable USUALLY inheritable. |
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Term
Common Identifiers for FS subject to CS |
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Definition
"provided that" "but if" "on the condition that" "provided, however" |
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Term
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Definition
this gives owners in a subdivision standing to sue & enforce the BENEFIT NOT THE BURDEN of the covenant b/c this benefit is appurtenant to the land is not personal to the developer; this standing is justified by a mutuality of both benefits and burdens |
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Term
Common Scheme- Beginning time |
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Definition
this scheme begins with the sale of first lot with the common scheme language within the deed; if lots in the subdivision have been sold w/o the scheme language w/I the deed the lots are not held to the commonscheme & convenat is not applied retroactively |
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Term
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Definition
"to A (words of purchase) for life/ natural life/ during her lifetime/ the term of her life/ as long as she may live (words of limitation) |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Definition
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Definition
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Definition
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Definition
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Term
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Definition
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Term
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Definition
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Term
Common words that denote FSD |
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Definition
"so long as" "during" "while" "unless" "until" |
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Term
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Definition
2 or more persons have concurrent interest in the land; these tenants have equal rights to possession or enjoyrment, and whomever is in actual possession is not holding hostily the rights of the concurring tenants |
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Term
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Definition
an event/ condition that must occur/ fail to occur (depending on express terms) BEFORE an interest becomes vested (in case of remianders) or possessory (for EI) |
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Term
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Definition
the occurance/ nonoccurance of an event that can cut short an estate |
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Term
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Definition
a condition whose occurance or nonoccurance will terminate the estate; if this occurs the estate holders interest ends and property EITHER 1) reverts to orginal grantor, or 2) passes to 3rd party |
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Term
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Definition
usually not necissary nor need be stated for passage of title (Except for Baraign and sale deed); consideration is usually customarily recited in the deed, and lack of consideration precludes the grantee from protection of the recording acts/ may preclude grantee from equitable relief for a defectivly executed deed & may render executory covenants/ other obligations unenforceable |
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Term
Construction possession (animals) |
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Definition
animals caught in a TRAP OR NET belong to the person who owns and has set the trap/ net. SETTING THE TRAP IS CONSTRUCTIVE POSSESSION OF THE ENSNARED ANIMALS |
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Term
Constructive acceptance (bailment) |
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Definition
when a person comes into posession of an object by mistake/ takes possession of an object when it is lost/left by the owner |
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Term
Constructive legal possession |
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Definition
what actual legal possessor has after someone else acquires custody, but not actual legal possession of the thing |
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Term
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Definition
possession of the personal property is acquired and retained under circumstances in which the recipient should keep it safely/ return the item to the owner at a later time |
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Term
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Definition
when a bailor gives the keys to a heavy bulky object (safe deposit box, car, house…) to the bailee; this transfers control of the object WITHOUT ACTUALLY DELIVERING THE OBJECT |
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Term
Constructive delivery (gift) |
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Definition
the property itself is not transferred but something giving acces & controll over the item is (ex. Keys to a house or car) |
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Term
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Definition
notice or knowledge that a purchasor can gains by searching the deed records; a person is deemed/ assumed to know all info in the documents legally recorded in the deeds record; EVEN IF THE PURCHASOR DD NOT SEARCH THIS OFFICE. Constructive Notice is usually asserted by seller in instances when purchasore did not search the records (b/c if purchasor HAD SEARCHED the records this would be ACTUAL NOTICE |
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Term
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Definition
the owner is either unascertained OR the right to ther current/ future posession of the property is subject to a contingency/ CP |
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Term
Continuous and Open Right (prescriptive easement) |
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Definition
claimant uses easement with great frequency/ all the time (can be seasonal, or when required (think fire escapes)); this use has not been abandoned. NB a change of easement location can constitute abandonment if first location not included in 2nd easement |
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Term
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Definition
the possessor must use ther property as the true owner under the circumstances; this focuses on the time on the property and intent to return. A AP can leave property if the circumstances allow it and retain continuous possession if he has intent to retun, which allows him to eject subsequent AP's who entered onto the land. Abandonment of the property restarts SoL even if another AP does not enter |
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Term
Contribution by cotenants |
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Definition
an action by cotenant in which one contenant demands others pay their pro rata share of EXPENSES PAID by the single cotenant ; only occurs if cotenants do not agree to pay voluntarily |
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Term
Contribution for repairs/ maintenance by cotenants |
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Definition
cotenant will not receive contribution for repairs EVEN NECCISSARY REPAIRS (courts figure this would be very time consuming/ resource depleating process) |
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Term
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Definition
using anothers property in a manner inconsitent wiwth the rights of the true owner/ rightful possessor. an owner may allege conversion and sue the wrongdoer in trover; |
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Term
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Definition
a conveyance of land will include annual crops unless a reversation/ provision in the deed states otherwise |
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Term
Correlative rights doctrine (percolating water) |
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Definition
minority of states have rule that allocates % of ownership to land acrage owned in which the resource rests (NO EQUALITY AMOUNG # OF OWNERS) |
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Term
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Definition
very difficult; CT must give clear notice to the other cotenants that he is claiming AP, usually written notice is preferred but OUSTER + ACTS INCONSISTENT WITH CONNCURRENT OWNERSHIP may work |
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Term
Court's view on exclsuive easements |
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Definition
presumption that EEiG are not intended, to prove this easement exists there must be CLEAR/ EXPRESS language in grant. |
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Term
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Definition
a promise to do or not do an act |
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Term
Covenant against future assurances |
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Definition
requires the grantor to execute any document/ perform any action needed to cure a defect or encumbrance in the conveyance to the grantee, but this requires a demand by grantee for grantor to take action |
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Term
Covenant of warranty and quiet enjoyment |
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Definition
the grantor covenants to defend against and compensate the grantee for any lawful claims made against the title that might arise; but grantee must be sued/ ousted/ eveicted before he has an actionable cause of action --- this assures that no one will interefears with grantees right of posession |
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Term
covenant to stand siezed of uses (statute of uses) |
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Definition
this raises a use only in a grantee RELATED BY BLOOD OR MARRIAGE to the grantor, & use being raised in consideration for such relationship, which was executed by the statute of uses, thus vesting the corresponding legal estate in the grantee |
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Term
Creation of common schemes |
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Definition
these occur when developer/ lot owner SOLD THE FIRST LOT (not moment of subjudgation) and language of the scheme must be apparent within this first deed; if not in first deed not common scheme no matter how many subsequent deeds contain the Common Scheme restrictions. |
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Term
Creation of particular interests in a deed |
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Definition
CERTAIN INTERESTS cannot be created UNLESS SPECIFIC WORDS ARE USED IN THE DEED FOR THEIR CREATION; although many interest can be created WITHOUT the use of technical language |
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Term
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Definition
Special Statues passed in many states which provide that after the passage of some number of years instruments that lack seals/ acknowledgements or other recording requirements are deemed to have been properly recorded |
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Term
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Definition
exclusive physical dominion and control of a thing, there being no intent to exclusively control the thing on the possessor’s own account or in his own name |
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Term
Deed containing both Habendum and Granting Clause |
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Definition
the habendeum MAY BE used to limit/ lessen/ enlarge/ explain/ vary/ qualift the Granting clause, the habendum CANNOT TOTALLY CONTRADICT the estate granted by GC. IF Habendum proports to cut down estate of GC and no other indicators are contained in the deed to reveal grantors intent, GC CONTROLS. |
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Term
Deed w/o seal in J requiring seal |
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Definition
the validity of a DEED AT LAW 1) if lacks the required seal but is otherwise valid may grant equitable interest in specifically performable K to correct seal; 2) the word seal or initial LS will satisfy seal; 3) many courts will just take the intent to seal as sufficiency of seal |
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Term
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Definition
a deed that contains no covenants about the title conveyed, but purports to transfer a FS or a disginated lesser estate (Very uncommon) |
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Term
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Definition
deed that proport to convey a specfic quality of title (FSA..) but have no covenants of title |
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Term
Deed's requirement to acknowledge parties |
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Definition
to be an effective conveyance the deed must IDENTIFY AT LEAST two parties ( grantor/ grantee); if other parties are involved these additional parties must be identified |
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Term
Descendable/ Inheritable property |
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Definition
property that can pass by the states intestancy statute to heirs IF the owner dies WITHOUT A WILL |
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Term
Destructibility of Contingent Remainders |
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Definition
CR will fail if the contingency on which it is limited does not in fact occur at or before the actual termination of the preceding particular freehold estate. This has been eliminated in most jurisdictions, still applicable a few; recent cases have applied this rule b/c it was in effect at the time of conveyance (The law that was in effect when the conveyance was passed governs) |
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Term
Devisable (property/ estate) |
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Definition
property that the owner can transfer ownership AT WILL |
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Term
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Definition
transferance of property by will after a persons death; THIS IS NOT A GIFT |
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Term
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Definition
if the owner is either: a minor, mentally incompetant, or imprisioned on the date that the SoL runs out; AP may only bring action against the owner AFTER the removal of this disability within a period permitted by local ordinance |
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Term
Divisibility & Apportionment (Easement Appurtenant) |
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Definition
EA are always DIVISIBLE and APPORTIONABLE. the holder of the easement who subdivides and sells parcels of DT TRANSFERS the easment to EACH PARCEL. Each divided parcel is the DT and the owner enjoys the easement rights over ST UNTILL # of easements overburdens the ST. |
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Term
Divisibility & Apportionment (Easement in Gross) |
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Definition
IF not assignable then not apportionable (personal EiG); however COMMERCIAL easements in gross are usually assignable so they are apportionable -- utilatimatedetermination of this assignability concerns if the easement is Exclsuive or Nonexclsuive |
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Term
Doctrine of Worthier Title |
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Definition
when a conveyance or devise to a persin, with R or EI to the grantor's heir's/ next of kin, no future interest is created to the heirs; grantor retains a reversionary interest which grantor can transfer or sell; this has been abolished in 30 jurisdictions and only serves as demonstrating a grantors intent |
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Term
Doctrine of Worthier Title (brummy) |
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Definition
Where there is an inter vivos conveyance of land or personal property, within a limitation in remainder or as an executory interest to the heirs (land) or next of kin (personality) of the grantor as such, which , conveyances effectively creates an interest in other than such “remainder” (remainder/ EI) – limitation in “remainder” will be construed to create a reversion in the grantor. |
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Term
Doctrine of Worthier Title Characteristics |
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Definition
1) Rule of construction, 2) Abolished in 30 J’s, 3) Must be inter vivos, 4) applies only to Land or personal property, 5)Must be a limitation of a remainder or an executory interest |
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Term
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Definition
parcel that recieves benefits from the easement; it is the owners who use is benefitted, not the land itself; ONLY APPLIES TO EASEMENT APPURTENANT b/c in gross has no Dominant tenement since specific person recieves the benefit NOT THE OWNER OF THE PARCEL |
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Term
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Definition
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Term
Duration of Fee Tail/ Fee Simple Conditional |
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Definition
untill ORGINIAL GRANTEE'S linage dies out |
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Term
Duration of implied easment of necessity |
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Definition
the easement exists for only the time that the acess is obstructed/ this route is a necessity; if a new route is built or become available the easement terminates immediately |
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Term
Duration of Life Estates/ Term for Life |
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Definition
For the life of the grantee |
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Term
Duration of Term of Years |
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Definition
fixed period set in transfer/ will (measured by years/ months/ days depening on express terms of the decree) |
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Term
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Definition
a nonpossessory interest one person has to use land in the possession of another, this is a nonexclusive right. ONE CANNOT CREATE AN EASEMENT IN HIS OWN PROPERTY |
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Term
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Definition
an easement implicity conved with the property, with the potential to continue indefinitely, that BENEFITS THE OWNER/ POSSESSOR of a particular land |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
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Definition
easment runs with the land; whoever possesses the DT (by purchase/ gift/ devise/ inheritance) has the right to use the easement over the ST. THIS IS IMPLIED, EVEN IF THE DEED MAKES NO SPECIFIC MENTION, and the PERSON who is conveyaning the DT to another LOSES HER RIGHT to use the easement. The easement still remians. |
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Term
Easement implied by prior use/ grant |
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Definition
aka Quasi easement, this happens when the use of the land is put into jeapoardy because a subsequent sale of part of the land divided the parcel; the buyer & seller must not have discussed this use during the sale |
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Term
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Definition
a personal easement that BENEFITS A PERSON; not assignable & automatically ends at holder's death |
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Term
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Definition
benefits a PERSON or MONEYMAKING VENTURE, ownership of a particular parcel of land is not required. Assignability for EiG is complex, based on if easement is for commercial or personal use |
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Term
Easement in gross vs. appurtenant |
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Definition
courts have constructional prefence for Appurtenant; THE EXPRESS GRANT MUST CLEARLY ESTABLISH THE EASEMENT IS MADE IN GROSS/ the sorrounding circumstnaces can also establish in gross |
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Term
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Definition
the income from the property is insufficient to pay the expenses the T has a duty to pay; property use does not pay for the upkeep. T can bring action to sell & buy the property in this event |
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Term
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Definition
legal action to remove a trespassor |
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Term
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Definition
right of FORMER TENANT(per personal represenative) to enter upon the property to cultivate, harvest, and remove crops planted by this tenant prior ro the termination of the lease/ estate |
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Term
Eminent Domain (Termination of Easement) |
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Definition
if the government takes a land by eminent domain this action extinguishes the easement, but the easement holder will be compensated |
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Term
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Definition
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Term
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Definition
a security transaction which fails to satisfy the requirements for the creation of a legal mortgage, BUT is treated nonetheless as a mortgage in equity and is enforceable as such ONLY IN EQUITY (ex. Defectively executed legal mortages, specifically enforceable promise to give legal mortgage |
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Term
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Definition
the mortgagors right to redeem his land after the mortgagors default on his debt (mortagor's compliance in full with the terms of the mortage grants the remedy at law in ejectment to enforce his right of reentry of power of termination); common misue of this term is a reference to the excess of the value of the mortgaged land over the amount owed by mortgagee |
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Term
Error in recording (due to recorder's office personell) |
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Definition
modern trend is to treat the instruments as if unrecorded, b/c people cannot search for these records and constructive notice isn't possible |
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Term
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Definition
if a wild animal, captured and held in private ownership, escapes and resumes its naturual liberty, the former owner loses his property right to it; this animal is UNOWNED & first to capture this animal becomes the new owner |
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Term
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Definition
an interest in land that will or may become possessory |
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Term
Estoppel (Termination of Covenants and Equitable Servitudes) |
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Definition
an action that can reasonably induce reliance by the BURDENED OWNER, which results in substancial injury to the burdened owner, constitutes an estoppel of right to enforce the covenant |
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Term
Estoppel (Termination of Easements) |
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Definition
substancial change of material position by continuance of easment |
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Term
evidenciary standard for donative intent |
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Definition
clear and convincing evidence |
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Term
Exception (contained in a deed) |
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Definition
a clause in a deed/ other conveyance by which the grantor excepts something OUT OF THAT WHICH HE GRANTS BY THE DEED OR OTHER CONVEYANCE. This withdraws from the conveyance a specified part of the land which would have otherwise been conveyed by generality of the deed. |
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Term
Exception (results when contained within a deed) |
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Definition
the grantor retains something he owned prior to making the conveyance, this always is a thing (or right) in being at the time of the conveyance |
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Term
Exclsuive & continuous (4th AP Req) |
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Definition
possession must be exclusive to the AP (except for tacking); continuous is necissary for SoL to run and any interrupted periods restart the clock |
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Term
Exclsuive easement in gross |
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Definition
commercial EIG where the easement holder has the SOLE RIGHT to use the easement; this owner has the sole right to AUTHORIZE OTHERS to use the easment, ST owner cannot allow others to use the easement, and the # permitted to use the easement limited to amount of easement users that do not overburden the ST/ constitute misuse of the easement |
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Term
Exclsuive statutes for conveyance that fails to meet local conveyancing statute |
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Definition
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Term
Exclsuive use (Prescriptive easement) |
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Definition
only imposed by A SMALL MINORITY OF JURISDICTIONS; claimants use of the land must be readily distinguishable from owner, or ST owner must not use property in a way that would interfere with claimants use of the easement |
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Term
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Definition
AP holds the land to the exclusion of the true owner; cannot occur by 2 AP-ers with equal legal rights, an AP with superior right has the opportunity to eject the other ap & SoL runs from time AP ORIGINALLY occupied the property. If persons are acting in concert they can become co-owners in the land |
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Term
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Definition
a future interest, held by a third party transferee (i.e. someone other than the grantee), which either cuts off another's interest or begins after the natural termination of a preceding estate. |
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Term
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Definition
easement created that must be creates by AN WRITTEN INSTUMENT SIGNED BY GRANTOR under seal; usually grantor sells part of his land and grants purchasor an easment over G's retained land/ Servient Tenement; if this express easment fails for any reason (like violation of SoF) then this becomes A LICENSE or SPECIFICALLY PERFORMABLE Kit does not terminate |
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Term
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Definition
an interest which has its origins in the principles, rules and remedies developed by the courts of equity; which is enforcable in equity, but not at law |
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Term
Express interest conveyed in deed |
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Definition
to be a valid deed, the document must contain language granting the INTEREST IN THE LAND WHICH IS INTENDED TO BE CONVEYED. The granting clause is the principle source for determining thes estate/ interest being conveyed. [Note courts generally resolve all doubts AGAINST the grantor, so deed passes ALL INTEREST HELD BY GRANTOR unless a contrary intent is definitively shown |
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Term
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Definition
the possibility of acquiring property by will/ intestacy |
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Term
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Definition
the ending of grantees bloodline in a FSC/Fee Tail |
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Term
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Definition
complete ownership in property that lasts untill the end of time; if death occurs to owner without will title passes onto the heirs |
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Term
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Definition
an estate that would be FSA but for a provision in the transfer document that states the estate shall AUTOMATICALLY END on the happening of an event/ nonevent. The duration may be infitite but for the condition |
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Term
Fee Simple Determinable (short summary) |
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Definition
a present possessory estate followed by a possibility of reverter in the grantor;; only original grantor/ OG heirs have future interest |
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Term
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Definition
Only Maine, Mass, RI, and DE still permit Fee Tail estates; a person can break this estate by conveying his interest into FSA to a 3rd party. ALL OTHER STATES HAVE ABOLISHED THIS TYPE OF ESTATE |
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Term
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Definition
the transfer of possessory estate of freehold in land by livery of seisin; either through 1) livery in deed, or 2) livery in law; this is FS Estate |
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Term
Final settlement of sale by cotenants |
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Definition
when cotenants sell the property, a co-tenant who has expended money can received the amount he has not been reimbursed for taxes/interest/ mortgage principle/ repairs/ maintanace/ insurance/ neccissary common expenses; cotenant will collect amount for improvements only by the increase in sale price this improvement adds & amount paid for the improvement is irrelevant; any time managing/ selling property is not reimbursed (unless specific agreement by cotenants says otherwise |
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Term
Finder of Lost Property- General rule |
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Definition
Finder entitled to posession (except against the true owner and ANY PRIOR RIGHTFUL POSSESSORS); if property is catagorized as lost the one who reduces it to posession becomes its finder. Posession is 1) physical control and 2) intent to assume dominion over the object. This intent may either be manifested by an effort to keep others away (gate/ roping off area) or may be implied (item discovered on the land of the owner) |
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Term
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Definition
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Term
Finder of MISLAID property |
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Definition
the finder of mislaid property does not acquire the right to possession; the OWNER of the locus in quo becomes entitled to possess the mislaid property against all the world except the true owner. (Mislaid property is that which has been intentionally placed where found and thereafter forgotten, when the true owner realizes where he has mislaid his property he will return to that location to retrieve his propertyl in an effort to return property to its owner the right of possession is given to the owner of the locus in quo and not the finder) |
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Term
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Definition
collusive legal proceedings brought to effect transfers of interests in land which were otherwise non-transferrable; the primary use of this tactic was to bar entails ( enable the holder of Fee Tail to convey a FSA |
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Term
First-in-time, first-in-right |
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Definition
the chronologically first possessor has a better right to title than any subsequent posessor |
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Term
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Definition
personal property that has been permanently attached to real propert BUT it could be removed;once the thing is attached to the land it is converted from personal property to real property; this becomes an accessory to the land & passes with ownership of the land |
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Term
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Definition
a cotenenat may have stutrorily enabled right to purchase the property but will be acting within fiduciary obligations, other cotenants CAN REMAIN COTENANTS BY CONTRIBUTING THEIR SHARE OF THE AMOUNT PAID IN FORECLOSURE; if the cotenant chooses/ cannot contribute AFTER A REASONABLE TIME then they loose their possessory interest. If single co tenant contributes then he has sole possession & will own the property (in a minority of states bidding cotenants all have oppetunity to own, so winning cotenant/ bidder has ownership) |
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Term
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Definition
property owned by person in LE will be forfitted to person holding remainder if comitted crime on the land; this destroys CR |
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Term
Forfieture for Misuse (termination of easement) |
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Definition
this is only imposed for egregious cases of misuse, courts commonly grant injunctions stopping the misuse of the easement |
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Term
Formal requirments for execution of a deed |
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Definition
this MUST BE instrument in writing signed by grantor/ his agent; also local laws may require to be formally valid and effective conveyance it must be sealed, attested, acknowledged |
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Term
Found Item: Employer-Employee |
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Definition
an employee who finds an articlein the course of his employement should surrender the right of possession to his employer. Within the employer-employee relationship the basic concept is that the employer has the right to direct the employee in his activities. On this basis, if the employee found the article by virture of an act specifically directed by the employer, the employer should acquire the rights of possession in the article |
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Term
Found/ Mislaid property- duty of due care |
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Definition
the posessor must keep the gods with due care (b/c he is a gratuitous bailee); if he does not take care he can be found guilty of negligence |
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Term
Found/ Mislaid property- Duty to find owner |
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Definition
if the person have knowledge of the true owner or have reasonable means of discovering the true owner, this person is obligated to do so; if not he is guilty of larceny & can be held liable for tortous conversion) |
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Term
Found/ Mislaid Property- Extent of obligations of the finder |
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Definition
finder's obligations of due care and discovering the true owner persist untill a sufficient time passes for the true owner to be deemed to have abandoned the goods (this depends on the character of the goods & the circumstances of the case) OR until SoL runs out |
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Term
Fraudulent Concealment (AP) |
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Definition
when an owner fraudulently conceals himself after the SoL runs and action accrues (in order to avoid service) the statue is held untill concealment ends |
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Term
Freehold estates (3/4 types) |
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Definition
1) Fee Simple, 2) Fee Tail (Fee Simple Conditional) 3) Life Estate or Estate for Years |
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Term
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Definition
crops that are present on land because of specific cultivation (argicultural production, flowers); personal property |
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Term
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Definition
crops that grow spontaneously on the land (trees, bushes, grasses); title over this passes with the land b/c they are REAL PROPERTY |
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Term
FSA 3 important qualities |
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Definition
1) freely divisible, 2) freely descendable, 3) freely alienable |
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Term
FS subject to Condition Subsequent |
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Definition
tranferance that gives grantee the potential to hold property forever, but COULD lose possession if the condition occurs; possession ONLY ENDS once the grantor assersts his right of rentry. The only person who can retake the land is grantor, and grantee continues to own the property UNTILL RIGHT OF REENTRY IS USED; only original grantor/ OG heirs have FI |
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Term
FS subject to Executory Limitation |
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Definition
a present possessory estate with either reverter/ right of reentry AND FI GOES TO A 3RD PARTY not the grantor |
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Term
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Definition
A series of life estates which passes from member to member/ heir untill the family line ended; when the line ends the property REVERTED back to grantor |
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Term
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Definition
FSD- grant AUTOMATICALLY ENDS upon the occurance of the condition; FS subject to CS- grant ONLY ENDS when grantor EXCERCISES HIS RIGHT OF REENTRY |
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Term
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Definition
a presently owned interest in a specific thing which entitles the owner thereof TO FUTURE possession or enjoyment of the specific thing; this is not but will/ may become a present interest. (note the future is in reference to the use and enjoyment of the thing; all property interest have a present existence) |
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Term
Future Interest in Term of Years Estate |
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Definition
if granter regains ownership of property after the time end--- reversion, if 3 party takes possession after time ends --- REMAINDER |
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Term
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Definition
a noncontractual, gratuitous transfer of property; made without legal consideration (if consideration exists this is a CONTRACTUAL SALE) |
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Term
Good Faith/Bona Fide purchaser |
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Definition
a person who buys personal/ real property HONESTLY and WITHOUT NOTICE of any conflicting claim on the property. It doesn't matter if the purchaser is nigligent; BFP must act in good faith/ without notice of the improper title. A BFP must pay ACTUAL VALUABLE CONSIDERATION (no IOUS, no gifts) to the fair price, a price is fair so long as it does not shock the consicious and make the purchase seem illigitimate |
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Term
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Definition
the transfer by an instrument in writing under seal of an interest in land INCAPABLE OF TRANSFER BY FEOFFMENT; any interest in land OTHER than a possessory estate in freehold (so incorporeal interest in land/ FI/ Right belonging to another) |
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Term
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Definition
this is an index for chain of title that lists grantees alphabetically by name; the search through this index begins with the current owner of the parcel (a prudent searcher would look for similair name b/c of recording error) |
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Term
Grantee's Requirement of Identification w/I deed |
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Definition
the grantee (a person/ partnership/ corporation) must be IN EXISTENCE as a legal entity at the time of the transfer & must be clearly named/ identified within the deed; legal title will NOT PASS WITHOUT CLEARLY IDENTIFIED grantee |
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Term
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Definition
the clause in a deed which contains the language granting the interest in land which is intended to be conveyed; this is required in express language to form a valid deed |
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Term
Granting clause requirement in deed |
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Definition
an effective coveyance by deed must have (language describing the land being conveyed and BOTH language expressing the GRANTORS INTENT to convey the land and language GRANTING THE INTEREST in the land being conveyed; which is satisfied by the granting clause |
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Term
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Definition
index for chain of title that lists only the land. A search through a grantor index MUST BE DONE AFTER SEARCH OF GRANTEE INDEX because grantor index search begins with the root of title and the search persuist untill current owner |
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Term
Grantors Requirement of Identification w/I deed |
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Definition
the grantor (a person/ partnership/ corporation) must be IN LEGAL EXISTENCE as a legal entity at the time of the transfer & must be clearly named/ identified within the deed; older courts required the grantor to be identified, modern courts hold ALL WHO SIGN THE DEED ARE PARTIES TO IT. |
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Term
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Definition
"to have and to hold" clause used primarily to delimit the estates conveyed. Usually this is pretition of prior refences in the deed to the grantee & prior statements in the deed of the estate conveyed |
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Term
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Definition
if a wild animal escapes, and through wandering about without restraint, PERIODICALLY RETURNS to its owners home, or if it is still pursued by its owner/ other means to recapture the animal STILL IN PERSUIT the owner retains title |
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Term
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Definition
people who should take one's REAL property upon death without will, this right does not exist untill death |
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Term
Horizontal privity (real covenant/ equitable servitude) |
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Definition
relationship between the original parties of the agreement for the covenant to run; both of the covenanting parties must have CONTINUING INTEREST in the affected physical land at the time covenant is created (ALWAYS met in LL & T cases, this privity lasts as long as the lease term) |
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Term
Hostile & Adverse (3rd AP Req |
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Definition
possession must not be by CONSENT and not in subordination (leasee) to the rights of the true owner |
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Term
Hostile & Adverse (majority of jurisdictions) |
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Definition
AP uses rge occupied property withou the true owners permission & inconsitent with rights of the true owner; entrace CANNOT BE DONE WITH OWNERS PERMISSION (lessee who holds over cannot be AP unless some element that breaks lease goes unacted like not paying rent/ using land in unintended or restricted way) |
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Term
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Definition
use of land in a way inconsistent with the true owner; hostility focuses on possession being nonpermisssive |
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Term
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Definition
property is done by the commonlaw system, case precedence and not statutes determine property regulations |
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Term
How rights of personal property areacquired/ lost |
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Definition
occupancy, Adverse possession, accession, judgement, gift; or when the chattel is lost, mislaid or abandoned |
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Term
Implied easement by Necessity |
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Definition
an easement implied for ingress & egress which establishes a right of way into a landlocked property (landlocking is so disaterous for property value that courts assume the parties COULD NOT HAVE INTENDED THE LANDLOCKING TO OCCUR) |
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Term
Implied Easements, 2 types |
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Definition
non written easements that court only allow under two circumstances: 1) Implied from prior use, 2) Implied by necessity |
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Term
Improvement by a single cotenant |
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Definition
cotenants cannot seek contributions for improvements, even properly made improvements (b/c no one has duty to improve the land) |
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Term
Improvement, Maintenance and repair (easements) |
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Definition
holder has the right to improve the easement that promote the use of the easemenyt, within the scope of the easement and do not burden/ interfere with ST owners use or enjoyment of the land; and the holder has the duty to maintain/ repair the easement and any improvements (multiple users must split the costs); the terms of the repair agreements do NOT AFFECT THE EASMENT ITSELF unless express terms say otherwise; the holder is liable for any injury that may result from negligent repairs/ slip& falls/ damage to ST |
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Term
Indefeasibly vested remainders |
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Definition
a remainder with NO CONDITION SUBSEQUENT and is NOT a class gift subject to open. "to A for life, remainder to B and his heirs" b has vested R in FSA, his R is certain to become possessory |
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Term
Intangible personal property |
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Definition
assets that cannot be touched or seen but have value nonetheless (ex. Stocks, patents, K rights, debts…) |
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Term
Intensity of Use (easement) |
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Definition
express terms of use controll, but when not specifically mentioned the use is limited to reasonable use that does not overburden the ST; courts determine this by the parties presumed intent in the grant with the assumption that this use may EVOLVE FOR REASONABLY FORESEEABLE changes in surrounding area/ society; holders use is limited to authorized purposes of the easement |
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Term
Intent to bind (real covenant/ equitable servitude) |
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Definition
the burden must be directly shown to run with the land, intent to bind subsequent purchasers usually ascertainable from the deed that sets forth the document; express terms in deed are clear indicators of intent ("heirs and assigns", "covenant is appurtenant""covenant shall run"), the burden is established expressly but benefit is inferred if PROMISEE OWNS NEIGHBORING PROPERTY (if no nearby property this is a personal grant) |
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Term
Intnent to examine (finder of property |
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Definition
(very limited jurisdiction hold) finding something and then a 3rd party takes the item, which prevents the finder from examining the item; this interference before examination is possible is the critical factor |
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Term
Intent to convey- operative words |
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Definition
in every jurisdiction it is essencial to the validity of a deed that ot contain language expressing GRANTORS INTENT TO CONVEY. Absent a statute rendeing compliance with this requirment sufficient, if such intent can BE GATHERED FROM THE INSTRUMENT AS A WHOLE (such statutes exist in 'but a few' jurisdictions) the intent to convey MUST BE EXPRESSED THROUGH OPERATIVE WORDS or the deed is ineffective [Note: if intent is apparnet by the entirety of the instrument & consideration was given, grantee is entitled to equitable relief by reformation which makes deed legal title] |
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Term
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Definition
a gift between living persons |
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Term
Irrevocable license 3 elements |
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Definition
1) owner of the servient tenement consents to Dominant tenement holder's use of ST, 2) ST owner knows/ should know that DT owner's position will materially change b/c he believes the use will not be revoked 3) DT holder reasonable & substancially changes his position by investing in improvements or actual improvement of the DT or ST; the reliance must be justifiable and any reliance that could be avoided by verifying the license will not be held irrevocable. CHARACTER OF THE TRANSACTION OR RELATIONSHIP OF PARTIES IS A MAJOR CONSIDERATION OF THE COURT |
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Term
Irrevocable license 4 instantces |
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Definition
a normal license can be made irrevocable through an 1) estoppel claim, this is indetical/ indistinguishable from an easement |
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Term
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Definition
the owner of real property possesses all that which lies beneath the surface of his land. If one find an article buried beneath the surface, the right of possession belongs to the owner of the property not the finder. (based on theory of constructive possession) |
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Term
Item Found in Private Place |
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Definition
For the finder to be deprived of his possessory right in the lost article the place of discovery must be HIGHLY PRIVATE. This is usually applied to places where the public is not invited (homes) |
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Term
Item found in Public Place |
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Definition
if the place of discovery is open to the public, then the finder becomes entitled to the right of possession. The mere fact that the place of discovery is PRIVATELY OWNED is not sufficient to render it a highly private locus |
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Term
Joint Tenancy with a right of survivorship- 6 traits |
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Definition
1) Must have the four unities of: Time, title, possession, and interest. 2)Each person owns an equal undivided factional interest and an equal right to possession and enjoyment, created at the same time by the same interest, 3) When the first tenant dies, his share automatically accrues to the joint tenant by right of survivorship, 4) The only person with an FSA and an inheritable interest is the survivor, 5)JT is severable during life. Transferee becomes TIC, 6) Cannot be disposed of by will. (Note: Preferred t common law, but today many J’s have abolished presumption and state that any conveyance to two or more people will create a TIC. (MD 2-117)) |
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Term
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Definition
a judgment & sale of an JT interest will sever JT wRS; the docketing of the lein/ debt will not cause severance b/c the JT's possessorry rights are not disturbed until sherriff executes collection |
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Term
Laches (Termination of Covenants and Equitable Servitudes) |
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Definition
a benefitted owner waits to bring injunctioin against covenant violation that the burdened owner is unduly harmed by this delay (DELAY MUST BE UNREASONABLY LONG under the circumstances); this doesn't terminate the covenant just prohits THIS ENFORCEMENT FOR THE BREACH, subsequent actions of enforcement are permitted for subsequent breaches (this defense is a variation of estoppel) |
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Term
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Definition
the rights and obligations of neighboring landowners relating to the removal or changing of soil on the supporting property; this is highly dependant on if the land is developed with structures/ other improvements on the land or if the land is in its natural state; natural land- person who causes land to shift or move away from natural state (mining, removal of all the topsoil) is held responsible; improvements NEGLIGENCE STANDARD to foreseeable neglect |
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Term
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Definition
a grant or a contract transferring the right to exclusive possession for an agreed (potentially indefinite) period of time. LESSOR RETAINS A REVERSION |
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Term
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Definition
owner of land leases it to another for a short period of time and , IMMEDIATELY THEREAFTER releases his reversion to the lessee, & two estates owned by the lessee merge into FSA; |
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Term
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Definition
leases of land for a term of years, doesn't matter of length/ duration; classified as personal property as CHATTELS |
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Term
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Definition
Short term and long term leases by one of the contenants does not sever the unity of interest b/c this interest will expire when he dies anyway; to be sure ALWAYS HAVE ALL REMAINING JT EXECUTE A LEASE WHEN IT'S UNDER JT w RS |
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Term
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Definition
an interest which has its origins in the principles, rules and remedies developed and enforced by the courts of law; which is ENFORCEABLE BOTH AT LAW AND (GENERALLY) IN EQUITY |
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Term
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Definition
(enforceable at law and equity) a conveyance of a recognized estate in land on condition subsequent, the condition being that the conveyance shall be VOID IF A STATED SUM OF MONEY IS PAID AT A STATED TIME, the purpose of the conveyance is to give the grantee security for the payment of a sum of money, NOT GIVE THE GRANTEE ENJOYMENT OF TH LAND. |
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Term
Lein states v. Title States (JT w RS) |
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Definition
TITLE STATES: Lender gets legal title as security which includes right of possession, mortgage is a conveyance of legal title; LIEN STATES: Lender gets security interest and borrower keeps legal and equitable title, mortgage would not give title and does not sever JT. (if lender have ALL JT SIGN THE MORTGAGE) |
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Term
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Definition
landowner permits another person to use his property & this permission is REVOCABLE AT ANY TIME; this requires no writing/ consideration and can be implied from costum or conduct when user stays within the tradition terms of the conduct/custom. Licensee has immunity from trespass on the land. (ex. person invited to swim in a pool, entertainment tickets) |
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Term
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Definition
1) mortgagor has the legal title to the mortaged land, 2) mortgagee has only legal lien upon land (to secure mortage debt) & has no right of possession either before or after default |
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Term
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Definition
1) mortgagor considered owner of the mortaged land, 2) mortgagee considered has only legal lien upon land (to secure mortage debt) |
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Term
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Definition
owner owns the property for life who has seisin; it is not divisable nor descendable but can be transferred inter vivos and the transferrance ends when LE owner dies |
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Term
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Definition
grantor delivers a thing symbolic of the land to the grantee, while both were on the land, and grantor concurrently used words that indicated: intent to convey, the character of the estate to be conveyed, and the subject matter of the conveyance |
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Term
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Definition
the grantor stated to the grantee (while both were IN SIGHT of the land BUT NOT ON IT), that he conveyed the land to the grantee an the grantee should take possession of the land, the grantee entering into possession of the land during the life of the grantor. |
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Term
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Definition
must be identified & described at the easement's inception; express grant will concretely define the location of the easement, and if location is unspecified general use of the land can establish location (in some jurisdictions an express grant that does not contain location is invalid); re-location of an easement is MISUSE |
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Term
Location of implied easement by necessity |
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Definition
usually owner of ST has the first opportunity to locate the easement, but if this location is unreasonable (driveway through a livingroom) or the ST owner takes too long than DT holder can determine the location; after location is established this easement can be moved ONLY BY THE CONSENT OF BOTH PARTIES |
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Term
locative description (metes and bounds) |
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Definition
a description used for the purpose of locating a point or a line |
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Term
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Definition
owner of the premisis or the lessee |
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Term
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Definition
owner has ACCIDENTALLY AND INVOLUNTARILY parted with his possession and does not know where to find it; central to this determination is WHERE THE ITEM IS FOUND --- from the place of finding would a resonable person know that the owner had accidentally and involuntarily parted with possession and not know where to find the item (big stack of money found on the floor) |
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Term
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Definition
property that the true owner unintentionally and unkowingly dropped/ lost; this property belongs to the finder |
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Term
lost/ mislaid vs. abandoned |
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Definition
lost/ mislaid- is the owner of the chattel INVOLUNTARILY parts with posession of the goods; Abandoned- the former owner MUST HAVE VOLUNTARILY given up and relenquished his ownership in the chattel |
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Term
Lost/ Mislaid/ Abandoned Property |
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Definition
title to lost/ mislaid/ abandoned property persists with the original owner despite the new loss/ mislaid status; owner loses title when he abandons the property |
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Term
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Definition
if a marked animal escapes and resumes its natural liberty modern courts allow title to be retained if 1) the animal is marked 2) owner excercises all possible efforts to recapture the animal |
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Term
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Definition
(20 states have enacted) to promote more efficient title searches, in MT the grantee must serach back grantee index to the first title recorded before the MT years specification ( which ranges from 20-50 years) b/c the title recorded before this time is considered root title |
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Term
Merger (Termination of Covenants and Equitable Servitudes) |
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Definition
cov terminates once a landowner acquires exlcusive ownership of both the benefitted and the burdened property, and no one else uses this property |
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Term
Merger (termination of easement) |
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Definition
once a person gains concurrent ownership of both DT and ST, so estates MERGE and easement dissolves. The easement does not reappear if he severs the estates at a later date, a written agreement/ clause in deed at time of purchase is required. |
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Term
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Definition
if a person holding a vested LE acquires the next vested estate in the same property, the two estates merge into 1 . (ex person has VLE and acquires VR in same property they merge into a larger estate which in this case is FSA) CL DESTROYS A CR THAT SEPERATES THE TWO VESTED ESTATES (see EE pg 168-9) |
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Term
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Definition
a discription THAT MUST COMMENSE at an identifiable point and be by CONTINUOUS LINES, one line proceeding where the other line ends, where the FINAL LINE returns to the point of THE BEGINNING; if this description does not close deed fails as a conveyance |
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Term
Metes and Bounds (2 types) |
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Definition
1) description by natural/ artificial boundaries ( streams/ roads/ fence…), 2) courses and distances |
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Term
Metes and Bounds deed that does not close |
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Definition
if the description does not close (either expressly or by construction) the deed fails as a conveyance; modern courts are liberal in constructing descriptions in order to avoid invalidity to the extent that COURTS HAVE SUPPLIED A LINE BY IMPLICATION (which closes the description) |
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Term
Minimum requirements for an effective conveyance in land |
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Definition
1) must be in writing, 2) instrument must be effectively executed, 3) instrument must contain language showing the conveying intent, 4) instrument must idenify both grantor and grantee, 5) the item being conveyed must be identifiable by the language of the instrument 6) the language must demonstrate the extent of the conveyors interest or estate being conveyed |
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Term
misdelivery of bailed object |
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Definition
bailee is stricly liable in tort for negligence, unless special statute or law says otherwise; he is strictly liable even without fault (some states have replaced with presumption of negligence) |
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Term
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Definition
it can be reasonable determined (b/c of the place where item was found) that the item was INTENTIONALLY PLACED there and THEREAFTER FORGOTTEN (a briefcase on a desk) |
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Term
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Definition
property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for the item later; ownership goes to owner of the locus in qyo- premisis owner or lessee) untill the true owner can be located |
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Term
Modern Statutes for conveyances to be effectively made |
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Definition
A conveyance of land that is excercised with the proper formalities & in the manner percribed is effective as a conveyance even though it does not comply either with the requirements for commonlaw conveyance or with the requirments for a conyeance under Statutes of uses |
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Term
Monuments (metes and bounds descrip) |
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Definition
natuaral or artificial objects used for the purpose of marking a line or a point; it is the center line/ point of a monument that is the location of the linr/ point of the boundry UNLESS this monument is "extensive in character" (building, tract of land, stream) in which the line DOES NOT RUN TO CENTER of the monument but THE NEAREST POINT |
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Term
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Definition
A security interest in a property |
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Term
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Definition
an interest in land which provides, and is created to provide, security for the performance for the duty of the payment of a debt |
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Term
Mortgage Principles of cotenants |
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Definition
Cotenant CANNOT SEEK contribution for mortage payments from others if payment made BEFORE DUE DATE; contenant CAN SEEK CONTRIBUTION for mortage payments PAST DUE/ OR ON DUE DATE |
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Term
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Definition
the right to PREVENT another person from making certain uses of his or her land (this is similair to restrictive covenant); use term IMPLIED COVENANT |
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Term
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Definition
gives the easement holder the right to prevent the possessor of the servient estate from doing some act on SERVIENT ESTATE; the nature/ scope of the negative easment MUST BE PRECISELY DEFINIED in the deed that creates the easement US courts only look to water easements/ view easments/ solar easement (view sun for solar energy)/ conservation easement (given to charity to conserve/ protect the land) |
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Term
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Definition
people who will take PERSONAL property upon death without will |
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Term
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Definition
an interest that entitles the owner NEITHER to pressent possession of the specific thing NOE to possession of the specific thin at any time in the future |
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Term
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Definition
a thing which legal relations exist with respect to a thing |
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Term
Nonexclsuive easement in gross |
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Definition
easement holder has the right to use the easement, but ST owner (or other eclusive easement holder) can AUTHORIZE OTHERS to use the easement, the holder of the nonexclusive easement HAS NO POWER TO PREVENT THIS GRANT TO OTHERS |
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Term
Notice requirment for Equitable Servitudes |
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Definition
successor owner of the burdened property have notice of covenant actual/constructive/ ability to learn of covenant through inquiry (public records) |
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Term
Notice rquirment for common schemes (equitable servitudes) |
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Definition
State recording statutes require that a purchasor must be given notice of the cmmon scheme through terms of a deed (some jurisdicttions split on: direct filing at county records, only some deeds in community contain language of the commonplan, or uniformity of development constitutes extrinsic proof of the plan) |
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Term
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Definition
a subsequent BFP or creditor for value previals over prior claimants if subsequent purchasor acquires the interest without notice of the prior claim. A Subsequent BFP prevails IMMEDIATELY UPON CLOSING w/o the need to record first ( there is no requirement to record, this record only serverse to protect the interest against a subsequent purchasor |
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Term
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Definition
when two or more people/groups inherit or share the exclsuive right to an easment they must act with one voice; each owner has right to veto any action that involves the easement/ profit; if this gets out of hand & overburdens the land ST can enjoin the use |
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Term
Open & Notorious (2nd AP Requirement) |
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Definition
there must be some visible ACT OF DOMINION OR USE on the part of the posessor that is inconsistent with the absolute right of property to the owner (which would give a reaonable owner notice of the AP's presence); when theives are AP a secret holding is presumed, but a finder of lost/ mislaid property is presumed to hold openly |
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Term
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Definition
Ap's use of property is visible & apparent to give notice to the true owner if the owner checked his land for someone asserting AP; if the true owner has actual knowlegde of the AP's claim O&N is met |
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Term
Open and Notorious (Prescriptive easement |
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Definition
use must be so open and visibile that landowner knows/ should notice. NB something observable on the estate gives constructive notice (Utility Line, roadway), and in residences indicators of uderground utilities (manhole, gas gauge) provides this notice) |
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Term
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Definition
life tenant may mine & remove minerals (and keep the profits) if grantor had opened the mine/ began mining & removal before he granted this LE -->this is based on the presumption that grantor intended tenant to use the property as it had been previously used. IF no mining before T took possession then mining not allowed without express consent by owner |
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Term
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Definition
an original party to the agreement creating the covenant; this party can enforce the covenant (if other party is bound) b/c benefit is personal to the promisee or appurtenant to the promisee;;s party |
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Term
Original promisor (real covenant and equitable servitude |
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Definition
an original party to the agreement creating the covenant, ALWAYS bound by the covenant b/c a) burden is personal, or b) burden is appurtenant to the promisor's land |
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Term
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Definition
in co tenant situations, this occurs when the occupying T directly acts to prevent other co-tenants from using the property, before actions can be brought against co-tenant in possession non-possessory co-tenants must make a demand for access to the property & possessor MUST DENY ACCESS IN REFUTE OF THIS DEMAND |
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Term
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Definition
term when court cannot equally partition the property, so a cotenant who recieves a more valuable parcel must pay cotenants with lower parcel value |
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Term
Owner out of Jurisdiction (AP) |
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Definition
when the owner, who is a RESIDENT of the jurisdiction, is outside the jurisdiction the staute is held untill the owner returns to the jurisdiction |
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Term
Owners right to lateral and subadjacent support |
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Definition
the rights & obligations between owners of neighboring property not to bring harm/ distress to neighbors property |
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Term
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Definition
a thing capable of ownership but not owned, belongs to the person who acquires actual or constructive DOMINION AND CONTROL over it and has the INTENT to assert ownership |
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Term
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Definition
wild animals in their natural state are UNOWNED; once they are possessed by a person they are owned. First person to have DOMINION AND CONTROL becomes the owner |
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Term
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Definition
statutory in nature; 2 kinds 1) partition in Kind, 2) partition in sale |
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Term
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Definition
court requires that the property is sold and the cotenants split the proceeds of the sale; courts disfavor this and only apply it when partitioning in kind is not possible (small tracts like single family houses) and can approve a sale even if a minor owns partial interest; some states allow cotenant to purchase parcel subject to FMV price paid and HEAVY judicial scrutiny, others do not allow. Express terms that reject partition by sale are invalid UNLESS LIMITED TO A SHORT & REASONABLE TIME (ex. divorce preceedings) |
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Term
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Definition
court divides property into equal parcels of value and each cotenat recieves a separate parcel; if courts cannot equally divide the proporty into parcels of equal value the court can order monetary payment from one cotenant to another to equalize the value. IF FEWER THAN ALL COTENANTS WANT PARTITION, the cotenant seeking it gains a seperate parcel and the other cotenants continue owning rest of the property as co-tenants |
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Term
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Definition
groundwater that is NOT IN A CHANNEL (think oil/ natural gas reserves); |
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Term
Permissive statutes for conveyance that fails to meet local conveyancing statute |
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Definition
the attempted conveyance may be upheld as a commonlaw coneyance (Feoffment); or if Statute of Uses is in effect in the j this would be a CONVEYANCE OPERATING UNDER THE STATUTE OF USES |
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Term
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Definition
Property holder/ tenant fails to prevent some harm coming to the property; this applies to lack of repair that results in damages (troublesome pipe which T refuses to replace floods land, owner can bring suit & recover) |
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Term
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Definition
everything that is not land, tangible/ corporeal physical property is something that can be possessed; or intangible property than are forms of rights of action; movable property; anything that is not real property, it can become personal property by severance |
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Term
Personal/Noncommercial easements in gross |
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Definition
easement given to grantee for personal enjoyment/ pleasure. NOT ASSIGNABLE, only way for personal easement in gross to become assignable is the document that creates the easement has express terms stipulating that the easment is assignable |
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Term
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Definition
persuit does not constitute the exercise of dominion and control to give possessory rights. HOWEVER when the animal is MORTALLY WOUNDED and actual possession is practically inevitable, the hunter gains a VESTED property right in the animal which cannot be divested by anothers act (even if this intervening act is killing the animal) |
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Term
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Definition
the controlling or holding of personal property, with or without a claim of ownership |
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Term
Possession in Fact (de Facto possession)- |
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Definition
exclusive physical control or detention of a thing |
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Term
Interest which MAY become possessory |
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Definition
is an interest which will/ may entitle the ownere thereof to possession of the specific thins at some time in the future |
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Term
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Definition
an interest which entitles the owner thereof to present possession of the specific thing; a |
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Term
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Definition
a right to make a limited use of another persons land |
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Term
Possessor as Quasi- Bailee |
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Definition
his title is good as against all the world, except the true owner; hee can even sue to have the property returned if it was wrongfully taken from him (ex. Lost ring belongs to O found by X & X lost it then found by Y. X can recover possession from Y/ anyone else EXCEPT O) |
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Term
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Definition
the chance that the property may return to the grantor if the condition subsequent occurred; applies to all defeasable estates |
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Term
Prescription (termination of easement) |
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Definition
ST can reacquire easement by blocking easment for the prescriptive period; the ST owner must prove that this use of the property was inconsitent with the continuation of the easement, (slight alterations to land, or impermanent structures will not do MUST BE MAJOR/ PERMANENT change that makes prescriptive use impossible) |
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Term
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Definition
a person can obtain a perscriptive easment through long-continued adverse use; much like AP requirements but no intent to own, just intent to use. ONLY AFFIRMATIVE EASEMENTS CAN GAIN a prescriptive easement |
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Term
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Definition
a presently owned interest in a specific thing which entutles the owner thereof to immediate present possession and beneficial enjoyment of that specific thing |
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Term
Priorities (in order) for conflicting terms, when survey described by metes and bounds |
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Definition
1) Natural monuments, 2) Artificial Monuments, 3) Maps/ plats/ field notes, 4) courses 5) distances 6) description by name, 7) description by quantity *a locative description will prvail over a description whose purpose is only directory/ identification |
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Term
Priorities (in order) for conflicting terms, when survey made and MARKED on the ground & marks are IDENTIFIABLE |
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Definition
Monumented line of survey controll over maps/ plats/ field notes |
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Term
Priorities (in order) for conflicting terms, when survey made and MARKED on the ground & marks are NOT IDENTIFIABLE |
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Definition
Plat or field notes prevail; NB if plat and field notes conflict PLATS controll field notes, both of which controll over courses and distances |
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Term
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Definition
an act/ condition on the defendants land that SUBSTANCIALY AND UNREASONABLY interferes with plaintiff's use and enjoyment of HIS LAND.; usually an intangible invasion (smell/ light/ sound/ vibration) b/c PHYSICAL INVASION IS TRESPASS |
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Term
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Definition
a presently existing aggregate of rights, privaledges, powers, immunities, duties, and obligations with regard to a spefic thing which exists only in a particular person, and which is good against an indefinitely large number of persons |
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Term
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Definition
occurs by K of sale, gift, will or other means of inheritance (intestate succession) of singular right to possess the original possessors item |
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Term
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Definition
the two parties within the contract are principles to the agreement |
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Term
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Definition
Applies to real covenants only |
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Term
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Definition
the right to enter another's land (w/o liability for trespass) and remove minerals/ timber/ other natural resources upon the land (like hunting/fishing or removal of soil); PROIT INTEREST HAS AN EASMENT TO VENTURE ONTO THE PROPERTY TO ENJOY THE PROFIT INTERESTS |
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Term
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Definition
measured by the life of ___; ex. LE pur autre vie---> life estate measured by the life of X |
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Term
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Definition
buyers, mortgagees, lessees or anyone else who gives value for any interest in a property. Not included are people who receive interest through gift/ charity/ or inheritance. NB for creditors the court will demand SOME NEW VALUE TO BE GIVEN TO A MORTGAGE to consitute purchasor, if the land is used as collateral for an existing debt the motrgagor is not a purchasor (but giving debtor extra time to pay for this collatoralization may constitute additional value) |
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Term
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Definition
the first person to record wins, EVEN IF he knew about a previously unrecorded conveyance ---- allmost all state legislatures reject PURE RACE STATUES because of the bad faith element when someone knows of another conveyance but can still win title |
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Term
Purpose for the easement ends (termination of the easement) |
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Definition
most often used for easements implied by necessity, and the easement ends as soon as another way to enter ther property arises |
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Term
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Definition
the owner of one tract of land uses one part of the land to the benefit of the other part of the land, this may become an easement if he sells one of the tracts/ divides the land but requires continuous use of both tracks to continue this activity |
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Term
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Definition
a deed without warranty which is derived from the common-law release; this has no specific quality of title nor specific covenants of tit.e/ basically deed saying I'll give you whatever I have |
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Term
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Definition
when two or more persons hold competing claims to a property, the first person to record prevails --- jurisdictions use these because they foster certainity of title & promote recording |
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Term
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Definition
Subsequent BFP/ creditor WHO RECORDS FIRST previals against a PRIOR UNRECORDED interest so long as purchasor DID NOT HAVE NOTICE of the preceeding interest at any point before closing of the sale (purchasor is allowed to know at time of recording the document) |
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Term
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Definition
covenants that run with the land; a successor in title may be susbtituted for the predecessor in the right to enforce the obligations of the covenant. |
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Term
Real Covenant/ Equitable Servitude SIMILIARITIES |
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Definition
they are both INTEREST IN LAND either agreements, promises, or deed provisions that relate to the real property and that bind or benefit any subsequent owners of the respective properties SOLELY BECAUSE THEY OWN THE PROPERTY. This grant must satisfy Statute of Frauds by either a written agreement, or equitable estopple by partial performance. Intent to bind and Touch & Concern are required for both |
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Term
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Definition
land and interests in land; property that can be recovered in specie by a real action |
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Term
Reasonable use doctrie (of percolating water) |
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Definition
American rule, percolating water must be used solely on the overlying land if use of the resource elsewhere would cause hardship to other landowners who have ACCESS TO THE COMMON POOL |
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Term
Recision (Termination of Covenants and Equitable Servitudes) |
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Definition
landowners can sign a document rescinding the covenant so that the cov no longer binds the property; this is effective only if all bound landowners join in this release (common for developers when all purchasers in subdivision agree that covenant is innappropriate) |
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Term
Recording act (termination of Real Cov or Equitable Servitude) |
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Definition
after recording of covenant, a subsequent BFP of property who takes the land without actual/ constructive notice and no ability to inquiry is not bound to the cov/ equitable servitude |
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Term
Recording Acts (termination of easement) |
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Definition
a subsequent BFP/ purchaser at forclosure who obtains title without actual, constructive, or notice through inquiry of the esistence of the easement is NOT BOUND. THESE PEOPLE ARE BOUND IF THE EASEMENT WAS RECORDED BEFORE THECURRENT DEED OR MORTAGE |
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Term
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Definition
Idea that person can have a relatively better claim to title than another person, but can also in some cases have an inferior right |
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Term
Release (termination of easement) |
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Definition
a written transferance of part or all the easement by holder of the easment (usually through a deed) to the ST owner) |
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Term
release (under lease and release) |
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Definition
any conveyance by a reversioner or remainderman of his interest to thr owner of the present possessory estate |
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Term
Release(Termination of Covenants and Equitable Servitudes) |
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Definition
owners of the BENEFITTED property can grant a written release to the burdened property owner; this release must satisfy SoF and be recorded with the land records. If two or more lots are benefitted ALL BENEFFITTED LOT OWNERS MUST JOIN/ SIGN THIS RELEASE |
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Term
Relief for private nusisance |
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Definition
usually injunctive relief is delievered after the balancing of the utility of the nusance determines nusiance is unreasonable & defendant can reduce/ avoid the harmship; injunction avoided if this act is a PUBLIC NECESSITY |
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Term
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Definition
the future interest in a LE owned by a 3rd party that is not the grantor, the interest is tranfered when the prior interest ends naturally. This remainder MUST BE GRANTED to the 3rd party IN THE SAME DOCUMENT that creates the LE/Fee Tail/ Term of years |
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Term
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Definition
FI in the 3rd party MUST become possessory IMMEDIATELY ON THE NATURAL TERMINATION OF THE PRIOR ESTATE/ POSSESSOR |
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Term
4 requirements for remainder |
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Definition
1) Same time, 2)interest in someone other than grantor, 3) natural termination of prior estate, 4) no built-in-time gap.; if not than Life Estate |
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Term
Remedies for equitable servitude |
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Definition
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Term
Remedies for real covenants |
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Definition
breach allows either monetary damages or injunctive relief |
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Term
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Definition
An action to recover the chattel itself (A bailed car to B, A asks for car back and B refused so A may sue for replevin of the car) |
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Term
Requirements for Implied Easements |
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Definition
For an easement to arise by implied grant or implied reservation, it must have existed and been enjoyed as an apparent, continuous, and necessary quasi-easement prior to the conveyance that caused it to arise by severing a quasi-dominant tenement from a quasi-servient tenement |
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Term
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Definition
must be an instrument 1)in writing, 2)executed in accordance with the statutory formalities required by local law, 3) language must describe the land being conveyed, 4) must specifically state interest being conveyed, 5) intent to convey; 6) all reservations/ restrictions/ exceptions for title; 7) it must be delivered to and accepted by grantee 8) must describe any consideration paid |
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Term
Reservation (contained in deed) |
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Definition
a clause in a deed/ other instrument of conveyance by which the grantor creates, and reserves to himself, some right/interest/profit in the estate granted, which reserved right had no existence as such prior to this instrument reserving it (ex. Easement) |
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Term
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Definition
a thing that is always not in being at the time of the convyance which granor reserves the reight to himself |
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Term
Reservation v. Exception (in fee) |
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Definition
to be valid in fee the reservation requires the use of words of inheritance b/c reservation is a transfer from grantee to grantor; an Exception does not require words of inheritance b/c it is a retention by grantor of something he already owns |
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Term
Reservation v. Exception (incorporeal interest in land) |
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Definition
exception results in retention by grantor of CORPOREAL interest IN LAND; a reservation results in retention by grantor of an INCORPOREAL INTEREST IN THE LAND (ex. An easement) |
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Term
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Definition
covenant that restricts or prohibits the uses that can be made of the burdened property; ex. No residences, no animals on property, no sale of alcohol, THE WALL CANNOT FALL INTO DISREPAIR |
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Term
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Definition
Words that are ineffective as operative words in deeds |
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Term
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Definition
grantors future interest to receive possession of the land when a certain event occurs/ this reversion follows the NATURAL TERMINATION of the preceeding estate. Grantor must have transferred an interest to another person LESS THAN the interest he owns. (in LE this is death of possessor, Fee Tail- family bloodline ends, Term of years- ends naturally at a designated time) |
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Term
right of possession of surface water (riparian) |
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Definition
For riparian states (states that have plenty of water) each person who posesses land next to this water source has REASONABLE USE; some restrict the water to reaonable use on parcel that abut the water source |
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Term
Right of possession of surfact water (where water is scarce) |
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Definition
Water use in desert/ dry areas is based on PRIOR APPROPRIATION; the first person to make a beneficial use of the water gains a vested right to continue that use |
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Term
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Definition
grantors FI that follows a FS subject to CS; this requires a condition precedent |
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Term
Rights of possession for percolating water |
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Definition
owner of property at one time had an absolute right to take/ withdraw percolating water & can use the resource at will |
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Term
Rights of possession of finder or owner of the locus in quo |
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Definition
this person becomes the title owner of the property, he acquires the right of possession as against the whole world EXCEPT THE TRUE OWNER |
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Term
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Definition
the document by which the federal or state government granted the land to a private person; this may be a judicial proceeding (ex. Judgement awarding AP) or some other form of transfer document. Jurisdiction put the burden upon the latest person in chain of title to ensure this remains unbroken. |
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Term
Rule against perpetuities |
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Definition
forbids some future interests (traditionally contingent remainders and executory interests) that may not vest within the time permitted which is usually 21 yrs; In essence, the rule prevents a person from putting qualifications and criteria in his will that will continue to control or affect the distribution of assets long after he or she has died |
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Term
Rule against perpetuities |
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Definition
UMD LAW NOT STUDY Since MD Hasn't passed it yet; return and review for the bar |
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Term
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Definition
ABOLISHED IN 40 STATESwhen a devise or conveyance transfers a freehold estate to a person and in the same instrument also transfers a R to the SAME PERSONS HEIRS/ HEIRS TO HIS BODY, and either both estates are legal or both are equitable; the first-named freeholder holds the freehold estate and R either for life/ FSA/ Fee tail, the heirs get nothing but the grant "to A for life, remainder to A's heirs" |
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Term
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Definition
accepted suppositions that can be rebutted by evidence; they are not laws |
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Term
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Definition
the remote/ subsequent purchaser must have a possessory interest in the property b/c possession allows controll of use (or courts assume this) |
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Term
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Definition
successor must receive ENTIRE ESTATE OR OWNERSHIP INTEREST from original promisor; LANDLORDS can never grant VP b/c they always retain theright of reentry |
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Term
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Definition
the extent of use an easement holder may make of a ST; the holder's use cannot exceed this scope, usually use limited to reasonable enjoyment of the DT and not unreasonably burdensime to the ST |
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Term
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Definition
Cl- seal was essential, & seal still essential in some j's to this day. In many j seal is not a requirement for deed to be valid, just need signature of grantor/ agent. |
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Term
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Definition
possession (either actual or constructive) claiming a possessory estate of freehold in the land; someone must always hold seisin |
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Term
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Definition
A warranty that the grantor/ possessor has legal rights to the estate convyed/ possessed |
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Term
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Definition
property burdened by the easement |
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Term
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Definition
property burdened by the easement |
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Term
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Definition
property burdened by the easement |
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Term
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Definition
Words that are ineffective as operative words in deeds |
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Term
Shifting Executory interest |
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Definition
A third party interest in an estate in land created by the conditions of a grant WITHIN THE CONVEYANCING DOCUMENT wherein the grantor gives the land to a second party, but with the occurrence of a condition divesting the second party of the land in favor of the third party. (Ex. J gives land "to M, but if H graduates from school, to H". H has an shifting executory interest because his graduation from school divests M of ownership) |
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Term
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Definition
Words that are ineffective as operative words in deeds |
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Term
Signature (Deed requirement) |
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Definition
CL- signing not essential if the instrument was under seal b/c seal took place of signature; Modern- signature of grantor/ agent is essencial; in some j grantor/ agent must subscribe the deed ( sign at the end of the doc) |
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Term
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Definition
a deed in which covenants of title only warrant against acts done by the IMMEDIATE GRANTOR of the deed itself, or those under him (ie the covenant is not violated if some earlier owner in chain of title than the present grantor impaired the title) |
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Term
Specifically performable K (easement) |
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Definition
expenditure must be viewed as consideration which made ORAL K enforcable & expenditures constitute partial performance |
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Term
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Definition
a structure placed on A DEFENDANTS OWN LAND for the sole purpose of depriving neighboring landowner/ possesser the use of laight & air or blocking the view; such action is a PRIVATE NUISANCE |
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Term
Sprining executory interest |
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Definition
An interest in an estate in land created by the conditions of a grant wherein the grantor cuts short the grantor's own interest in the property in favor of the grantee, contingent upon the occurrence of a specific condition. (Ex. J gives land "to H, if H graduates from school". J has an SPRINGING executory interest because H's graduation from school divests J of ownership) |
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Term
ST owner's power for exclusive/ noneclusive Easements in Gross |
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Definition
ST owner has the power to decide HOW MANY PEOPLE/ COMMERCIAL GROUPS can use the easment |
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Term
standard of proof for causa mortis gifts |
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Definition
clear and convincing evidence |
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Term
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Definition
a party in the deed that is not a grantor, grantee or any spouse; neither a reservation or an exception cannot be made to the strange of the deed because these are not words of grant |
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Term
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Definition
a person who briefly takes legal title for the sole purpose of rec-conveying the property back to the grantor (usually a member of attorney's office like secretary/ paralegal) |
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Term
Strict Necessity (implied easements) |
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Definition
most courts determine this to mean access to easement is necissary for the enjoyment of the parcel, or use reasonable necessity; some require absoolute necessity. A parcel landlocked by navigable water and access to the public (at the court's descretion) can quality for an implied easement) |
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Term
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Definition
when easement holder removes minerals/ water etc buried under the topsoil that causes the land to subside; either the topsoil can collapse in through removal of minerals or collapse caused by removal of underground water but only if the neighbors removal of this water was MALICIOUS |
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Term
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Definition
the conveyance by a lessee LESS THAN THE ENTIRE remaining balance of his estate for years |
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Term
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Definition
NO, a sublease retains possibility of reverter and as such does not transfer his entire interetst |
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Term
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Definition
a succession to another's right or claim, it places ownership in one other than the person originally holding the claim; usually done through trover |
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Term
subsequent owners (real covenant/ equitable servitude) |
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Definition
parties not to the original agreement but now own/ subsequently owned the property that may be benefitted or burdened by the covienet began by previous owner since the covenant runs with the land. |
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Term
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Definition
the conveyance in writing by the owner of a present possessory estate of his interest to the reversioner or remainderman |
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Term
Symbolic delivery (bailment) |
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Definition
bailor gives the bailee a thing symbolizing the object of the bailment (usually transferrence by use of a written instrument) |
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Term
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Definition
the thing delivered as a gift stands in place of the actaul object (ex. Photo of a car, that is being shipped out; groupon purchase of an item/ reciept of the purchase) |
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Term
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Definition
successive possessors of the property may "tack"/ combine their respective periods of AP AS LONG AS THE POSSESSORS ARE IN PRIVITY |
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Term
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Definition
a first AP grants subsequent AP the time 1st used the property to 2nd time to run SoL; THIS MUST HAVE PRIVITY |
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Term
Tangible personal property |
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Definition
property of a physical nature that can been seen & touched. (ex. Cars, books paintings…) |
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Term
Tenancy by the entireties |
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Definition
1) Conveyance to two people who, at the time of conveyance, are husband and wife. 2) Not severable & NEITHER H OR W CAN UNILATERALLY TRANSFER THEIR INTEREST DURING LIFE 3)the married couple must own the property as an undivided unit not with equal shares 4) surviving member gains possession of the unit Both H and W would have to join in conveyance. (ex. H takes loan and gives home as collateral. If wife didn’t sign or H forges and Wsurvives, bank is out of luck.) |
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Term
Tenancy in common- 4 key traits |
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Definition
1) Each person owns a fractional interest (as part of an undivided interest), 2) Each person has an equal right to possession and enjoyment, 3) Interests are assignable/ devisable or inheritable at death, 4) Doesn’t need to be created at the same time and by the same instrument. |
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Term
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Definition
each co-tenant has an equal right to possess the whole property and to share equally the rents, and appreciation of lands value; each tenant has an undivided interest which grants seisin to each holder and the right to possess the whole parcel. Usually the % of gains or burdens from the land are distributed by cotenants according to % of ownership |
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Term
Tenancy in Common vs. Joint Tenancy with Right of Survivorship |
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Definition
TIC Prefferred in most states, unless otherwise stated by local statutes |
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Term
Term of Years/ Tenancy for years |
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Definition
a lease for a fixed period of time |
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Term
Termination By terms of the Covenant (Termination of Covenants and Equitable Servitudes) |
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Definition
deed/ common covenant restriction contains express terms that state when the covenant AUTOMATICALLY terminates |
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Term
Termination of Covenants and Equitable Servitudes (12 ways) |
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Definition
1) by terms of the covenant, 2) merger, 3) release, 4) recision, 5) Unclean Hands, 6) acquiescience, 7) Abandonment, 8) Laches, 9) Estoppel, 10) Changed condition, 11) Recording Acts, 12) Eminent Domain |
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Term
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Definition
how or when the estate ends |
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Term
Terms of the grant (termination of easement) |
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Definition
the easement expires AUTOMATICALLY due to the express terms of the grant; this could expire because of a set expiration date, a term of years or a condition (ex. Easement for ingress and egress as long as grantee continues mining operations or alternative roadway becomes available) |
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Term
Time Requirment (perscriptive Easements) |
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Definition
usually the same length as the local SoL |
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Term
Title for abandoned property |
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Definition
2 requirements: 1) actual/ construictive dominion and control over the thing, and 2) an intent to assert ownership over it |
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Term
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Definition
mortgagee has legal title to the mortgaged land subject to the complete defeasance of the condition subsequent (the repayment of the debt); mortgagor has equitable interest in the land known as EQUITY OF REDEMPTION, and is the legal owner of the mortgaged land against all owners except the mortgagee |
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Term
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Definition
mortgagor is considered the owner of the land, mortgagee only has a lein upon the land (which only protects m-ee's security in the land) |
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Term
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Definition
AP SoL will not run against the original owner; usually done for disability, minors, imprisonment, outside of jurisdiction; tacking ends and SoL continues to run once Owner's condition is normalized; disability ust have existed on the date of AP's entry upon the land & no combination of impariments (15 year old who is sentanced to prison at 19, tacking ends 21 when he reaches majority) |
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Term
Tolling of the Statute (AP) |
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Definition
the time for special conditions (disability, Defendant out of jurisdiction, fraudualent concealment) to be met are NOT countined to run the SoL; if the SoL has run and the special conditions develop the AP must wait untill the owner has returned to normalcy |
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Term
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Definition
all documents affecting a parcel of land are indexed on a page for that parcel; the parcel searcher must find the parcel's page b/c it contains a summary of all the documents affecting the parcel |
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Term
transferrance of land "assuming" the mortgage |
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Definition
grantee is personally liable for the mortgagors debt and personally liable for outsatnding debt if forclosure sale of land is insufficient to cover debt obligations |
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Term
transferrance of land "subject to" the mortgage |
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Definition
grantee must accept land interest with this mortgage; mortgagor NOT GRANTEE is personally liable for the repayment, but failure to repay can result in loss of mortgage land |
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Term
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Definition
an action to recover MONEY DAMAGES incurred b/c of dispossession of the item |
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Term
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Definition
a trespassor who kills game ON ANOTHER LAND forfeits his/ her TITLE in favor of the landowner. The landowner is not regarded as the owner of all wild animals found on his property, this is meant to discourage trespassing |
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Term
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Definition
tresspasser-finders are generally not allowed to have possessory rights in lost property. Ownership falls onto the property owner where the item is found. |
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Term
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Definition
an action to recover THE VALUE OF THE CHATTEL along with DAMAGES FOR DISPOSSESSION; this is a forced sale b/c the person compensated loses his right of possession to the item |
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Term
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Definition
1) vested remainders 2) contingent remainders 3) vested R subject to divestment 4) vestsed R subject to open |
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Term
Unascertained v. ascertained |
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Definition
this deals with: if the person is directly/ concretely identified. Named individuals ARE ALWAYS ASCERTAINED, indiv not named but given extensive description usually ascertained (highly depednant on level of inquiry to identify the person), unnamed & poorly described usually unascertained, unborn baby ALMOST ALWAYS UNASCERTAINED |
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Term
Unclean Hands (Termination of Covenants and Equitable Servitudes) |
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Definition
an owner cannot enforce a covenant if this owner violates the terms of the covenant |
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Term
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Definition
Groundwater that flows in a channel; this has the same posession rights/ characteristics as above surface waterways |
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Term
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Definition
A JT can secretly sever a JT by transferring the interest to a 3rd party |
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Term
Unity of Interest (JT w RS) |
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Definition
Each JT must own EQUAL SHARES of the same estate |
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Term
Unity of Possession (JT w RS) |
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Definition
Each JT has right to possession of the WHOLE PROPERTY |
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Term
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Definition
JT interest must VEST AT THE SAME TIME |
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Term
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Definition
one cannot have actual legal possession of something he/she doesn’t know that he physically possess (or knows that the item exists) |
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Term
Exception to unconcious possession: EXPECTABILITY RULE |
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Definition
the person acquires the legal possession of the reasonably expectable contents of that conveyance |
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Term
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Definition
JT must acquire title in the same deed/will |
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Term
US courts holding on Negative Easments |
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Definition
US courts are reluctant to enforce Negative Easment because they want to foster bargained for exchanges; only look to water easements/ view easments/ solar easement (view sun for solar energy)/ conservation easement (given to charity to conserve/ protect the land) |
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Term
Vertical Privity (real covenant/ equitable servitude) |
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Definition
promisee must receive the original promisor's ENTIRE estate/ interest, either through a direct transfer or reciept through persons in chain of title; |
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Term
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Definition
when one person in the class is identified/ ascertained the class is vested; a class that is vested but can have more people added to the class later is treated as a contingent remainder untill the class CLOSES (all persons in the class are ascertained) |
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Term
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Definition
(1) the remainder is given to a presently existing and ascertained person, and (2) it is not subject to a condition precedent. A vested remainder may be indefeasibly vested, meaning that it is certain to become possessory in the future, and cannot be divested. An example, O conveys to "A for life, then to B and B's heirs." B has an "indefeasibly vested remainder" certain to become possessory upon termination of A's life estate. B or B's heirs will clearly be entitled to possession upon A’s death. A vested remainder may not be certain to become possessory. An example of this: O conveys "to A for life, then to A's children." A has one child, B, so B has a vested remainder because B is ascertainable. But, A may have no other children in his life, and B could die before A, so the vested remainder is not certain to become possessory. Instead B is said to have a vested interest subject to partial (more children) and complete divestment (if B dies). |
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Term
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Definition
1) owned by an ascertained person/ persons (a person who can be named or identified), and 2) not subject to condition precedent. This becomes possessory on the natural termination of the immediately preceeding estate |
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Term
Vested remainder subject to open |
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Definition
R that belongs to a class of beneficiaries identified by descriptions not by name, where that class can expand (a class gift). A common example is a grant from O "to A's children", where A is a man: the class of A's children can't be closed until approximately thirty eight weeks after A dies, so any children alive at the time of the grant are vested subject to open. This interest is also sometimes referred to as being vested subject to partial divestment b/c each additional class member removes interest from other members of the clas. |
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Term
Vested remainders subject to Divestment |
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Definition
if something could occur that would divest the remainder of an interest. For example "From O to A for life, then to B, but if A stops growing corn, then to C": B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory. |
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Term
Vested vs. Contignent remainders |
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Definition
1) PI ALWAYS VESTED 2) ALL FI in THE GRANTOR VESTED 3)FI in 3rd parties ---- either vested or contingent |
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Term
Violation of statute (wild animal) |
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Definition
one who violates a statute (ex. Failure to have a hunting license) forfeits his title to animals caught/ injured |
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Definition
no title; this usually occurs when a person attempts to transfer better title/ a greater interest in a property rights that he possesses |
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Definition
title transferred by true owner under fraudulent/ misleading conditions & true owner has option to rescind the tranaction and get the property back; NOTE A BFP WILL ALWAYS GAIN POSSESSION EVEN IN CASES OF VOIDABLE TITLE |
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Definition
Words that are ineffective as operative words in deeds |
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Definition
a deed that contains the covenants of seisin and warranty; this proports to convey a specific quality of title (FSA…) and also covenants assuring that is the title being conveyed |
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Definition
possessory life tenant permanenty impairs the property's condition/ value to the detriment of the future holders; future holders can collect damages or bring injuctive relief to stop the waste; "to a --- WITHOUT IMPEACHMENT FOR WASTE" gives land holder immunity from suit by FI holder |
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Term
Ways one can gain actual notice |
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Definition
personal observations, a document in the deed record, or hearing about the priovous purchaosr from coversations (involving or not involving the transaction itself) |
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Term
WE DID NOT COVER CHPT 14 Martial property |
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Definition
return for review for the bar |
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Term
Wild animal- mortal wounding |
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Definition
hunter has right of posession if he is in close persuit after inflicting such a wound. His claim is superior to others who may interject at a later timr |
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Term
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Definition
technical terminology for when a FSC/Fee Tail line ends/ dies out |
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Term
Words of inheritance (subclass of limitations) |
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Definition
words that indicate the INETEREST an heir inherets at grantors death |
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Term
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Definition
words that indicat the kind of interest the grantee recieves |
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Definition
these words indicate who the grantee of the interest in the land is; may be done by dee or by will |
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Definition
properity is abandoned if collected (piles of horseshit give notice of effort done to collect horseshit) |
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Definition
druck trappin is unfair interference b/c malicious intent to harm neighbor and no intent to trap/ use ducks |
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Definition
"fox in hand" not needed for possession, killing give automatic possession b/c "depriving animal of natural liberty" |
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Definition
custom is permissble to prove possess & party on notice (harpooned whale --- custom using personalized harpoons) |
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Definition
bans Malicious or willful destruction |
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Definition
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Term
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Definition
no control over lost/ mislaid/ delivered by mistake property |
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Term
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Definition
their beats subsequent theif (log cutters have better claim than mill operators) |
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Term
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Definition
impermissible use/ bad faith use can permit recovery byond value of the good (egg washer awarded damages more than the machine's value b/c bad faith) |
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Term
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Definition
innocent purchaser of property from a wrongdoer must first be informed of defect in title & have opportunity to deliver property to the true owner b/c liable for wrongful conversion (german stolen paintings) |
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Term
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Definition
possession is prima facie evidence; first finder beats subsequent finder (logs adrift in lake belong to first finder, not subsequent possessor) |
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Definition
no possession without knowledge of the item (no possession of box containing 2 lbs. of pot) |
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Term
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Definition
things attached to land are part of real property, belong to owner (comet embedded in land belonds to LL) |
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Term
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Definition
finder of abandoned property is rightful owner (chimney sweep finds jewel) |
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Term
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Definition
whoever holds mislaid property has inferior claim than 1) true owner 2) property/ shop owner (found wallet property of barber) |
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Term
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Definition
landowner's property rights over goods are partially extinguished by work done to transform the goods (logs into barrel hoops, TRANFORMATION IN GOOD FAITH) |
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Term
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Definition
What's being chased belongs to the finder, the landowner possesses things attache to the land (Fisher chased bees, stewart owned land of the beehive/ honey) |
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Term
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Definition
he statute of limitations for the recovery of chattels begins at the time of conversion. The time of conversion is defined to be the time at which the actual possessor acts to exclude ("demand and exclude") the rights of the true owner. (Song owners waited too long to demand parties not use songs, so lost property rights) |
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Definition
A promise to make a gift is unenforcable, equivalent to unenforceable contract, needs delivery & acceptance = father promised colts to son but never delivered |
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Definition
Will Formalities 1) in writing, 2) signed by the testator ( or another for him) in his presence and by express direction, 3) 2+ witnesses present |
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Term
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Definition
Holographic/ handwritten will -- armed servicemen only |
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Term
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Definition
Will creator has responsibility to ensure will created according to formal requirements (GA bank owner had bank employees sign the will out of his sight) |
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Term
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Definition
order of distribution of net intestate estate |
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Term
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Definition
Shares of surviving spouse (1/2) |
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Term
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Definition
Distribution of surviving issue (priority to all except surviving spouse) |
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Definition
distribution w/ no surviving issue (siblings of deceased, 2) parents, 3) grandparents, 4) great grandparents, 5) step children, 6) eschat to the state Board of Education) |
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Term
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Definition
Warranty of title -- 1) transfers good title, 2) no SI or leins 3) warranty of Title can be modified by express terms of the contract |
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Term
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Definition
Power to transfer -- 1) party can only sell the interest HE HAS THE POWER TO TRANSFER, 2) permits transfer of voidable title, 3) transfer occurs despite decieved of purchaser's true identity/ dishonored check/ cash sale/ lacenous fraud, 3) merchants have power to transfer to 3rd party baileees done in ordinary course of business |
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Term
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Definition
transferor with VOIDABLE title can transfer good title to a GOOD FAITH purchaser; if PURCHASERS HAD ACTUAL BELIEF IN THE BUYER (jewlery store didn't have good faith when bought rolex from 3rd party --- deal was too good & insufficient action to check seller's title) |
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Definition
merchants who deal in goods can give good title for sale of goods; Buyers have good title even if seller had bad credit, places onus on wholesellers not to conduct business with bum merchants |
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Definition
Warehouse duty of care --- warehouse liable for damages for "reasonable careful person" (neligence standard) NOT AUTOMATICALLY LIABLE for damages while in possession |
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Definition
Carrier's duty of care -- damages determined by "reasonably careful person" (negligence standard); limit or exclaim damages through express term in BILL OF LADING, cannot exceed liability amount in transportation agreement |
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Term
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Definition
A bailment is created when the owner of a chattel gives 1) custody and 2) control over the chattel to another to hold until the owner requests delivery (bailment created when the property was left in parking garage) |
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Term
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Definition
3rd parties can rely on impressions or statements conveyed from the ostensible owner; ostensible owners have burden to provide notice of ownership to 3rd parties (auto shop with mechanic's lein can recover from car dealer -- this is a common lein) |
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Term
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Definition
SP can seek self help to recover PERSONAL PROPERTY if actions do not breach the peace (car repossession epossession was accomplished without any incident which might have provoked violence) |
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Term
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Definition
(MD code) owner has to deliver TITLE if he/she transfers interest (UNLESS retains perfected SI) -- this is convenience, nonexclusive |
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Term
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Definition
(MD Code) registration is required, and is a separate doc from car title |
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Term
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Definition
(MD Code) Attaches lein to property; SI on title is CONCLUSIVE NOTICE to 3rd parties, if SI is unperfected SI rights not guaranteed |
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Term
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Definition
Specific statutes trump general UCC code. Car ownership passes when 1) owner executes assignment of warranty of title (on back of certificate of title) w/ name & address of transferee; 2) actual/ constructive delivery of the car; 3) certificate of title delivered to transferee |
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Term
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Definition
Bills of sale/ other outstanding debts are equivalent to cash consideration (P is GF purchaser of land with CLEAR TITLE b/c no knowledge the land sale is fraudulent) |
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Term
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Definition
Good Faith for Negotiation instrument holder/ purchasers require: 1) for value, 2) in good faith, 3) without notice of -overdue/ dishonored/ default outstanding debt or unauthorized SIGNATURE ON DOC OR susbequent claim to recoup |
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Term
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Definition
Good faith purchaser takes property right to claim the instrument; FULL PROPERTY RIGHT -- cuts off any notice challenges |
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Term
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Definition
Negotiation --- transfer of possession either voluntary or involuntary, of neogtiable instrument by 3rd party who is the holder; REQUIRES HOLDER'S SIGNATURE if instrument is payable to the identified party |
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Term
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Definition
3 defenses for NI 1) infancy, 2) durress/ lack of legal capacity/ illegality of the transaction, 3) fraud which conduced signing, 4) discharg through insolvancy |
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Term
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Definition
Doc of title-- include bill of lading or any bailees reciept ---must 1) be issued by the bailee, and 2) state & describe items its covers |
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Term
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Definition
trustees have legal duty of loyalty -- prevents T from accepting employment/ conducting business from 3rd part that is self dealing against trustee (Trustee of Famous Painter Liquidated inherentance of paintings to museums well below market value & despite beneficiary's objections |
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Term
Broadway National Bank v. Adams |
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Definition
income of a trust fund created for the benefit of another cannot be reached by attachment, either at law or in equity, before it is paid to the beneficiary (bank tried to collect from grantor) |
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Term
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Definition
Liability of corp will fall on individual owner it demonstrated that the operated used his control for personal gain ( taxicab owner used "corporations as a piggy bank" & liability shield) |
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Definition
No scrutiny for actions that satisfy business judgement rule (Coop board properly evicted douche tenant after unanonmous vote to evict) |
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Term
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Definition
to establish a conversion, Plaintiff must establish an actual interference with his ownership or right of possession, if Plaintiff has neither title nor possession, he may not maintain an action for conversion. (Cancr patient did not intend to maintain possession of cancerous blood cells after their removal) |
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Term
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Definition
Patents usuallly physical property is superior right to resale (b/c EXHAUSTION - once the owner buys the patented item exhausten precludes resale) --- if use w/o infrindgement is impossible, patent is invalidated |
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Term
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Definition
Tm protects a specific product, "generick mark" is one that is known to denote a GENERAL TYPE of good or product category |
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Term
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Definition
Enforcement of copyright protection is balanced against enforcement costs that limit public creativity and new ideas ( rejct infringement claim of playright based on ethnic stereotypes) |
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Definition
Copyright does not prevent imitation, only statutes can prevent this (dress design cannot be copyright protected) |
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Definition
The United States has exclusive title to land because of the discovery and conquest of America by Europeans. Thus, when title originally comes from the United States, that title has priority over any conveyance of land by an Indian tribe. For all parcels of land in America, the chain of title begins with the United States government. (Indians do not possess title, they cannot convey title to others) |
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Definition
An american that finds a mineral depoist on uninhabited/ unclaimed island & takes PEACABLY, gives notice veriefied by afffidafied containing coordinates, has the exclusve right to occupy land and take guano |
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Term
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Definition
it does not take actual harm to a person’s property for actual harm to occur when someone intentional trespasses upon that land. Egregious acts allow punitive damages exceeding nominal damage, even if no actual damage, because right to exclude others is fundamental (trailer deliveror violated owners express prohibition to use land for delivery) |
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Term
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Definition
Homeowner/renter with less than 5 rooms for guest occupancy CAN DISCRIMINATE in choice BUT CANNOT DISCRIMINATE in public ads |
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Term
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Definition
Private property owners can keep out whomever/ whatever they want, unless they serve public calling/ are a common carrier (Horse track allowed to keep out ticketholder, ticket merely a license to enter) |
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Term
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Definition
Injuctive relief only granted for REPEATED trespassor ONLY IF this will have the desired effect on tresppaor & knowledge of trespass but continued to trespass (Fox hunting club trespassed on Dr.'s land and the club's dog bit the wife) |
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Term
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Definition
WHEN NO POSSIBILITY OF SETTLEMENT strict property rule when dealing with encroachments; Trespass remedied in two ways: 1) permanent tresspass & compensate in damages, or 2) remove offending building/ structure (D built a wall and later discovered it went onto P land, an unintentional intrusion, must be removed) |
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Definition
Balance of hardship tests ONLY used for good faith trespassers (slight underground encroachment caused by improper land record) |
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Term
Producers Lumber v. Olney |
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Definition
If the building upon the land of another was done in good faith the court will issue equitable relief. When a person erects upon the land of another without knowledge or consent the building belongs to the owner of the land, the builder is without remedy. IF the builder trespasses onto the land and destroys the building he commits waste. (developer destroyed house on another's land after settlement stalled) |
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Term
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Definition
Nuisance cases of balancing interest between owner and other party, landowners can use land in any way proper that does not harm other landowners (drilling well ok, court denies claim by neighor who wanted but couldn’t install a septic system) |
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Definition
subsequent purchasers can be responsible for previous use of property, provided sufficient notice of prior use (Ground contamination from parcel's previous owners) |
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Term
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Definition
purchaser/ occupier can tack on previous land possessor's time of occupancy (deeds to summer beachhouse misrecorded long ago, subsequent parcel owners had good faith under COLOR OF TITLE since land deeds were improperly recorded) |
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Definition
Bad faith adverse possessers will not gain title (neighbor who cleared rat infested field not given title b/c bad faith since she knew it was neighbor's land) |
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Term
Coffin v. Left hand ditch |
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Definition
Priority of apporpriation all exhaustion of resource (Def build many dams upstream, diverted stream entirely ) |
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Term
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Definition
Reasonable use of flow judged on case by case basis, can right to control flow so long as it does not impact downstream users (Upstream mill vs. downstream mill) |
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Definition
right to use land is not right to total contro, only control/ own that which the owner can use (Landowner under plane landing runway) |
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Term
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Definition
subsequent transmissing along a close frequency isn't a nuisnace or tresspass if it is 1) minor and 2) harmless (Radio Station airs on frequency very close to old, popular station) |
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Term
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Definition
Rule of construction of an ambigupus will favors conveyance of FSA ("to have the home to live in and NOT TO BE SOLD" conveyed FSA, not LE) |
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Term
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Definition
Restrictions on alienability of FS conveyances fail, but restrictions on right to use are upheld (conveyance in FS CS which discontinued use of parcel as lodge would revert, use restriction kept but court severed sale restriction) |
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Term
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Definition
A life tenant may not demolish his inherited building against the wishes of the remaindermen even if the property would be more valuable if demolished, action would constitute waste. (4 mansions can't be destroyed to erect APT) |
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Term
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Definition
(MD Code) FSA assumed, unless specific words of inherentance present in conveyance |
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Term
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Definition
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Term
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Definition
(MD code) 30 years for AP SoL |
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Term
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Definition
Creating an interest in 3rd parties that could take effect at an indefinite point in the future will be striken by rule against perpetuities (Grant to city for use as a library, indefinite reverter not upheld) |
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Term
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Definition
Unless Instrument is explictly clear to create JT, statues will controll ambiguous grants to create TiC (Ambiguous will to 4 children, state statue trumped extrinsic evidence) |
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Term
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Definition
Partition by sale involves wieghing the interest of all interestholders, partition by sale permitted if the division of the land is impractical or impossible (2 parties owned TiC, partition by sale would force sale of home and end home business) |
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Term
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Definition
Tenant may collect share of rents and profits from common property if he had been ousted, can recover cost of NECESSARY REPAIRS in court judgement (2 TiC, one kept the other's cows from grazing on the land which prevented party from excercising use rights) |
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Term
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Definition
(MD Code) All JT requires "property granted is to be held in Joint Tenancy" |
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Term
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Definition
A valid, properly executed mortgage destroys JT & becomes TiC b/c it transfers title (Mortgage didn't attach, therefore JT still valid/ didn't violate rule against transferability) |
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Term
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Definition
Tenant's duty to pay rent not conditional on actual enjoyment of the land (English army invaded & T still had to pay rent) |
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Term
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Definition
Warranty of commercialability does not apply for commercial tenants who use use for bsuienss purposes, parties have to agree or amend terms of the lease which can create contractual guarantees for specific purposes (T who leased land tainted by lead paint, all cows died but not warranty) |
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Term
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Definition
Impleid warrant of habitability allows residents ability to stay in residence and withold rent till LL corrects issues (DC slum apts) |
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Term
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Definition
LL has duty to mitigate damages after eviction, all Apts are not uniques and should be displayed equally (Dumped by fiance, can no longer afford rent) |
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Definition
NO allowance for force/ violance for self help; JUDICIAL PROCESS Preferred (LL tried to force out bad restaurant through self help, court requires judicial eviction) |
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Term
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Definition
LL cannot assign or divide own wrong --- Wrongful eviction, including partial eviction, by LL from part of the premises suspents duty to pay rent (Building brick wall blocked a shed and constituted constructed eviction) |
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Term
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Definition
For Constructive eviction LL must have the power to take action against the offender & fix the issue, but LL FAILS TO FIX PROBLEM (Residential aprt made inhospitable by ground floor club) |
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Term
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Definition
Security Deposits do not run with the land b/c they are a personal covenant & don not touch & concern the land (Tenant cannot collect SD from subsequent LL, despite terms of K which conveyed intent to run) |
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Term
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Definition
An assignment transfres all interest, SUBSTANCE OF THE AGREEMENT CONTROLS successor Ts; T that pays LL directly is likely an assignment (go cart operator assigned lease, court disregarded Agreements wording & claim of sublease) |
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Term
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Definition
(MD Code) A Transfer is ONLY effective if: 1) in writing, 2) signed by transferor |
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Term
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Definition
(MD Code) transfer term must exceed 1 yr |
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Term
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Definition
Delivery of the deed must pass/ complete before owners death, deed must leave owners possession before death (no delivery for deed taken out of safety deposit box after transferor's death) |
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Term
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Definition
Without inconsistency between language of the deed and its effects on the groun parol evidence not allowed; extrinsic evidence is to explain latent ambiguity or identify directional points NOT CONTRADICT THE DEED (deed did not reflect angled street,language of the deed controlled) |
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Term
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Definition
Warranty of title not automatically breached by encumberance, when encumerance is open and notrious or in chain of title buyer offset this by paying less (GA home subject to flooding b/c Encumberance allowed a dam) |
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Term
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Definition
Liability for T continues through end of closing (Uninsured building damaged by hailstorm during sale leaseback negotiation) |
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Term
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Definition
A forged deed and void title and passes nothing (signature on blank piece of paper transferred to deed is FORGERY) |
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Term
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Definition
(MD Code) every deed must be recorded; doesn't allow inheritance/freeholds or estate more than 7 yrs |
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Term
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Definition
(MD code) default for uncertain conveyances, these CAN BE RECORDED |
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Term
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Definition
(MD Code) first in time is first in right, unless subsequent grantee has 1) accepted delivery (in GF w/o notice & given value for purchase ) 2) recorded deed |
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Term
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Definition
Subsequent purchaser has the burden of proof that 1) no notice of prior transfer, and 2) valuable consideration (subseuent purchase by nephews -- who recorded deed -- not upheld b/c they knew of uncle holding title by not recording) |
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Term
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Definition
For conditional land sales K the lendor is required to provide specific, clear notice that he will forclose if not paid on time; CANNOT do any actions that constitute waiver(Forfiture overruled despite K language, mortagee missing one of 8 annual payments, proper method is judicial sale) |
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Term
Murphy v. Finanicial Development Corp |
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Definition
Lender has FD to minimize the harm to the lender, not determined by actions of the bank but about perverse effects 1) insufficient notice, and 2) improper dealing with 3rd parties(private sale by mortagor in bad faith b/c 1) insufficient notice of sale 2) found buyer willing to give 27K more THAT DAY) |
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Term
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Definition
Liscence is a right revocable at any time (race track/ private operator allowed to bar entery to tickethold b/c this is a license) |
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Term
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Definition
Injunctive reflief for negative easement not given interfering with sight/ sound water of own land (hotel cannot get injunction to prevent building that will block sunlight) |
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Term
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Definition
1. If use does not serve the easement’s express purpose, it becomes an unauthorized presence, whether or not there is any noticeable burden on the servient estate (Easement for power lines does not allow subsequent cable installation "evoluntionary, not revolutionary changes permitted") |
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Term
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Definition
licensee spends money to improve the property and licensor is aware of this, license essentially becomes a grant through estoppel (cannot estop easement for ingress/egress travel after building drivaway and house) |
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Term
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Definition
Reciprocal negative easement - Land deeds with agreements not to take action in order to benefit entire neighborhood are uphold if 1) purchaser had notice and 2) agreement is present in chain of title (neighborhood w/ covenant not to build the garden) |
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Term
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Definition
Implied negative reciprocal servitudes - buyer has notice of easemen in prior deeds or through universal development plan of the neighborhood/ community (Gas station not allowed in Detroit suburb w/ universal development) |
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Term
Neoposit Property Owners Association |
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Definition
1. promises do not have to directly benefit the land to run, indirect benefits that benefits land run b/c they touch & concern ($4 homeowner fee that benefits entire neighborhood runs with the land) |
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Term
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Definition
Zoning laws are constitutional (sewage treatment plant not allowed in residential neighborhood) |
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Term
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Definition
Vague zoning codes that "capture neighborhood feel" are invalid, NOTICE PROBLEM (clear defined zoning laws provide clear notice to all) |
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Term
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Definition
zoning restrictions of unrelated nonfamily tenants is constitutional |
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Term
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Definition
Zoning that restricted tenancy to immediate family (didn't allow great stepchild) unconstitutional |
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Term
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Definition
Racial/ class zoning unconstitutional |
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Term
Detwieler v. zoning hearing |
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Definition
Area variance—relax local zoning restrictions to fit the parcel in order to deny the landowner same rights and use as neighboring property owners (variance granted for rectangural lot in zoning law for square lost which required houses have strict dimensional bordered) |
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Term
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Definition
STATES cannot impair contractual obligations (school charter); FEDS CAN |
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Term
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Definition
Eminent Domain -- restraiin injurious use of property owner; state authority to enact police regulations includes, but is not limited to, such doctrines as" use your own as not to injure another's property, "and that the legislature has broad authority to exercise this power." (Boston wharf siezed & dock removed under police power) |
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Term
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Definition
Regulatory taking -- taking is more readily found when the government has physically invaded the property than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good(Air development regulating the prohibited building tall skyscraper atop Penn Central NOT A TAKING) |
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Term
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Definition
Public use --- urban blight/ temporary redovelopment for is permissible public use AS LONG AS THERE IS A PAPERTRAIL to demonstrate good faith & honest belief that taking would benefit the market (Conn takes bad area for use as pfizer, permissible taking) |
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