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Property II
Exam Preparation
190
Law
Professional
04/25/2015

Additional Law Flashcards

 


 

Cards

Term
4 Ways to Make an Easement
Definition
- Express (grant or reservation)
- Implication (prior use or necessity)
- Prescription
- Estoppel
Term
Express Easement by Grant
Definition
deed or will (writing that satisfied Statute of Frauds) expressly grants an easement to another
Term
Express Easement by Reservation
Definition
- deed grants a fee (possessory interest) to the other party but reserves an easement
- benefiting "stranger" to title (courts split on this)
Term
Easement by Implication - Prior Use
Definition
- an apparently permanent and obvious servitude
- imposed on one part of the an estate in favor of another
- is in use at the time of the severance of the estate
- reasonably necessary for the fair enjoyment of the other
Term
Easement by Implication - Necessity
Definition
- united parcel owned by common owner
- parcel is divided
- one of the divided parcels is landlocked
Term
Easement by Prescription
Definition
- open and visible
- actual
- continuous and uninterrupted
- hostile and adverse
- exclusivity
- required period of time
Term
Easement by Estoppel (Irrevocable License)
Definition
- a license that matures into an easement
- the owner of the servient estate "permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked
- the user substantially changed position in reasonable reliance on that belief
- injustice can be avoided only by establishment of a servitude
Term
Affirmative Easement
Definition
affirmative right to enter property
Term
Negative Easement
Definition
forbidding one landowner from doing something on his land that might harm a neighborhood
Term
Open and Visible
Definition
the adverse use must be made in such a way that a reasonably diligent owner would learn of its existence, nature and extent; no knowledge by neighbors is necessary
Term
Continuous and Uninterrupted
Definition
generally 15 years but check the statute of limitations
Term
claim of right
Definition
- a use without permission and without recognition of the right of the land owner
- if the claimant has shown open, visible, continuous, and unmolested use for the statutory period, the use will presumed to be under a claim of right and adverse
- servient owner has burden to rebut the presumption by evidence that the use was permissive
Term
License
Definition
oral or written permission allowing licensee to do an act that would otherwise by trespassing
Term
Easement Appurtenant
Definition
- landowner benefits from parcel (i.e. driveway)
- runs with the land (transferable)
Term
Easement in Gross
Definition
- personal benefit rather than the landowner
- personally have a right to cross over land to get to something
Term
Dominant v. Servient
Definition
- Dominant: the benefitted land
- Servient: burdening a parcel of land
Term
Termination of Easements
Definition
- written conveyance or release
- merger
- prescription
-abandonment
Term
Termination of Easement (Written Conveyance or Release)
Definition
the holder of the easement releases the burdened land from the burden in writing
Term
Termination of Easement (Merger)
Definition
when both the servient and dominant estates become owned by the same person
Term
4 Traditional Types of Negative Easements
Definition
- Light
- Air
- Water
- Dirt
- Light

Modern adds conservation and scenic
Term
Termination of Easement (Prescription)
Definition
- if the servient estate wrongfully interferes with the easement for the statutory period of prescription easement is terminated
- single owner violates covenant for prescriptive period
- covenant extinguished only for that owner
Term
Termination of Easement (Abandonment)
Definition
- terminated if easement is abandoned
- acquiescence in widespread violations
- abandoned as to all owners
Term
Prescriptive Easement Theories
Definition
Modern: protects uses that continue beyond the statute of limitations for bringing an action against the use

Traditional: protects uses that had continued for a long time with the "acquiescence" of the servient estate owner
Term
Quasi Easement
Definition
landowner uses part of his/her tract to benefit another part while tracts are in unity of title
Term
Promissory Servitudes
Definition
- enforceable promises btwn a land owner and someone else
- negative covenant: promises that restrict the owner of land from making certain uses of the servient estate
- affirmative covenant: obligate the promisor to undertake affirmative acts
Term
Promises (Covenants)
Definition
- Real Covenants
- Equitable Servitude
Term
Privity of Contract
Definition
promises are generally enforceable only by/against those who made the agreement
Term
Real Covenant
Definition
- Enforceable Promise
- Intent to bind successors
- Touches and concerns land
- Privity (vertical and horizontal)
- Notice
Term
Remedy for Real Covenant
Definition
Monetary Damages
Term
Equitable Servitude
Definition
- enforceable promise
- intent to bind successors
- touches and concerns land
- notice
Term
Remedy for Equitable Servitude
Definition
- injunction
- specific performance
Term
Real Covenant v. Equitable Servitude
Definition
Real Covenant requires privity of estate while Equitable Servitude does not
Term
Privity of Estate
Definition
- Horizontal
- Vertical
Term
Horizontal Privity of Estate
Definition
- property connection between original parties
- successive interest (grantor/grantee)
- mutual/simultaneous interest (lease, easement)
Term
Vertical Privity of Estate
Definition
- property connection between an original party and a successor
- successor has assumed the entire interest of one of the original parties
Term
Privity is NOT required when....
Definition
- trying to enforce the burden on an original party
- trying to enforce the burden upon a successor as an equitable servitude
Term
Privity required...
Definition
to enforce the burden of a covenant against a successor for monetary damages
Term
Default Rule: Rule of Reason (Scope of Easement)
Definition
Servient Estate Owner
- may make any use of the burdened property that does not unreasonably interfere with the enjoyment of the easement

Easement holder
- may do what's reasonably necessary for enjoyment of the easement so long as it doesn't unreasonably damage/interfere with the enjoyment of the servient estate
Term
Maintenance (Scope of Easements)
Definition
- look to parties' intent (if expressed)
- if not expressed...default rule
* easement holder has the right/obligation to maintain the easement
Term
Change/Expansion (Scope of Easements)
Definition
- nature of the use
- the intensity of the use
Term
Constructive Eviction Steps
Definition
- act/omission by landlord, landlord's agent or third party w/ paramount title
- causes substantial interference w/ tenant's use and enjoyment of the leased premises
- tenant gives notice and opportunity to cure
- tenant vacates
Term
caveat lessee
Definition
- "let the tenant beware"
- placing upon the tenant all responsibility for the condition of the premises during the tenancy, except in those cases where the landlord expressly contracted to bear responsibility
Term
Exceptions to Caveat Lease Responsibilities
Definition
- the property suffered from a defect the landlord knew or should have known and the tenant wouldn't have noticed at inspection
- maintaining the physical condition of the common areas under the landlord's control
- any repairs the the landlord contractually agreed to perform
- if there was a short-term lease for furnished premises the landlord would be responsible for those premises
- leasing a building under construction, the landlord would be responsible for the completion of the construction for the purposes of the tenant
Term
Warranty of Habitability
Definition
a covenant by the landlord, implied by law into residential leases, that the landlord will maintain the premises in a habitable condition throughout the duration of the lease
Term
Implied Covenant of Quiet Enjoyment and Duty to Deliver Possession (English Rule - Majority)
Definition
landlord has a duty to deliver actual possession on the first day of the lease
Term
Implied Covenant of Quiet Enjoyment and Duty to Deliver Possession (American Rule - Minority)
Definition
landlord must convey legal right to possession, but no duty to ensure that premises are vacant
Term
General Test of Habitation
Definition
- defect that makes premises unfit for habitation
- housing code violation = some evidence, but not required
Term
Impact of an Assignment
Definition
POC
- landlord and tenant
- tenant and assignee

POE
- landlord and assignee
Term
Impact of a Sublease
Definition
POC
- landlord and tenant
- tenant and subtenant

POE
- landlord and tenant
- tenant and subtenant
Term
Assignment + Assumption of Lease by Assignee
Definition
POC
- landlord and tenant
- tenant and assignee
- landlord and assignee

POE
- landlord and assignee
Term
Assignment + Assumption and Novation (New)
Definition
- landlord and assignee have a new contract excluding the original tenant
- they now have POC and POE exclusively
Term
Impact of 2nd Assignment
Definition
POE is btwn landlord and Assignee 2
POC
- landlord and tenant
- tenant and assignee
Term
Lease as a Conveyance (Traditional)
Definition
- caveat lessee applied
- LL generally not liable for repairs
- covenant of quiet enjoyment was implied
Term
Lease as Contract (Modern)
Definition
- LL may be obligated to make repairs under a warranty of habitability
- this warranty of habitability is another exception to the independent covenants rule
Term
Tenant's Duty to Repair
Definition
- damage is caused by waste
- if parties agreed that tenant would make repairs
Term
Destruction of Premises Due to Casualty
Definition
- traditional: tenant was not required to rebuild structures, but still owed rent
- modern: lease is terminated and tenant is relieved of future liability for rent
Term
Actual v. Constructive v. Breach of CQE short of constructive eviction
Definition
Actual: tenant is physically ousted/dispossessed by LL, LL's agent or someone with paramount title

Constructive: act/omission by LL, LL's agent or someone with paramount title that substantially interferes with use and enjoyment

Breach of CQE: tenant may seek damages/injunction (remains in possession and still pay rent)
Term
Partial Actual Evictions
Definition
Traditional: Tenant relieved of all liability for rent (but still liable for quasi-rent for portion tenant still uses)

Modern: rent is apportioned
Term
Partial Constructive Eviction
Definition
Traditional: constructive eviction doesn't exist if the tenant remains in possession of any part of premises

Modern: Tenant pays reduced rent
Term
Does LL have duty to deliver possession?
Definition
English Rule (majority): LL has a duty to deliver actual possession on first day of the lease

American Rule (minority): LL must convey legal right to possession but no duty to ensure the premises are vacant
Term
Evolution of Tenant's Rights to Habitable Premises
Definition
Caveat Lessee --> Illegal Lease Doctrine --> Warranty of Habitability
Term
Remedies for Breach of Warranty of Habitability
Definition
- Terminate
- Rent abatement
- repair and deduct
- specific performance
Term
Easement in Gross (Transferability)
Definition
Traditional: only commercial easements were transferable

Modern: all easements are transferable except those deemed "personal"
Term
Pre-Planned Development
Definition
- survey and subdivision of property
- execution of master declaration and CCRs
- recording of declaration and CCRs
- conveyance of lots by deeds that incorporate CCRs
Term
Haphazard Development
Definition
- no master declaration
- non-reciprocal covenants (promises by the buyer alone) are placed in deeds to each lot as it is sold
Term
Two Problems w/ Haphazard Development
Definition
- covenants in buyer's deed typically benefit only the developer (and successors who acquire developer's retained property)
- developer may fail to include covenants in every deed to property within the CIC
Term
Implied Reciprocal Servitude
Definition
- common owner of 2 or more lots
- general scheme of development to mutually benefit lots within the plan
- uniform restrictions in a substantial number of deeds from the common grantor

END RESULT: grantees acquire implied right to enforce restrictions against lots retained by grantor
Term
Third Party Beneficiary Theory
Definition
common development scheme implies that all lot owners are third party beneficiaries of restrictions in other lot owners' deeds
Term
Enforcement of Restrictions (Two-Tier Reasonableness Review)
Definition
- if in master declaration/deed, enforceable unless arbitrary, unconstitutional, violates public policy
- if adopted later, enforceable if it meets the less deferential equitable reasonableness test below
Term
Types of Listing Agreements
Definition
- Open
- Exclusive Agency
- Exclusive right to sell
Term
Type of Listing Agreement (Open)
Definition
selling process is open to any/all brokers; only the broker who actually procures the buyer gets the commission
Term
Type of Listing Agreement (Exclusive)
Definition
listing broker is the only broker the seller can use; gets commission if buyer is procured through efforts of anyone other than the seller himself/herself
Term
Type of Listing Agreement (Exclusive Right to Sell)
Definition
listing broker has the exclusive right to engage in marketing during the listing period; gets a commission even if the buyer is procured through the seller's own efforts
Term
When is a broker's commission earned?
Definition
Traditional: when broker produces "ready, willing, and able buyer"

Illinois: when parties have an enforceable contract

Modern: when contract is consummated at closing
Term
For whom does the broker work?
Definition
- generally for the seller
- can be a buyer's agent
- or dual agency
Term
Remedies for Risk of Loss
Definition
- actual/monetary damages
- specific performance
- liquidated damages
*Test: whether amount is reasonable (1) in light of anticipated damages and (2) difficulty of proving the damages
Term
Basic Requirements of Land Transfer
Definition
- Statute of Frauds requires a writing (the deed)
- must have intent to transfer + delivery of the deed
- acceptance also required but is rarely an issue
Term
How is a deed delivered?
Definition
- manually/physically directly to grantee
- by escrow (to a third party "escrow agent" who makes delivery to the grantee)
- there is a presumption regarding delivery
Term
Deed presumed to be delivered when...
Definition
- it is in the physical possession of the grantee
- it has been recorded
Term
The presumption of a deed being delivered is...
Definition
- rebuttable
- BUT, if recorded some states recognize a irrebuttable presumption
Term
Deeds Subject to Conditions Precedent
Definition
a grantor may condition delivery upon a certain event (payment of purchase price)
Term
Deeds as Will Substitutes
Definition
- a deed conveying a remainder to the grantee
- a "death escrow" (grantor has to give up all dominion and control over the deed)
- revocable deed (courts divided)
- a transfer on death or "beneficiary" deed (allowed in some jurisdictions)
Term
Land Descriptions
Definition
- metes and bounds
- plat maps
- government land survey
Term
Metes and Bounds
Definition
- described in relation to natural monuments or artificial monuments
- starts at an identifiable point on the property then uses distance, compass point headings and the monuments and "closes" by returning to the point of beginning
Term
Plat maps
Definition
generally used for larger tracts when divided into a number of small parcels (subdivisions)
Term
Federal Land Survey
Definition
- rectangular survey system
- established by Congress in 1785 as a standardized way of describing all land conveyed to or acquired by the federal government
- done in intervals of six miles and establishes townships and range line
- sections in the townships are subdivided in one mile intervals into 36 sections
- sections can then be further subdivided into quarters, half of quarters and fourth of quarters
Term
Federal Land Survey (North - South Line)
Definition
principal or prime meridian
Term
Federal Land Survey (East - West Line)
Definition
Baseline
Term
Document is "recorded"
Definition
- file stamped; copy made; original returned
- copies placed in books in order of receipt
Term
Document is indexed when...
Definition
Traditional: grantor-grantee index

Modern: tract index; or computerized
Term
Title Search Four Step Process
Definition
- search title backwards in grantee index
- check title forwards in grantor index
- look at every document in the chain
- look for documents in other records (separate mortgage books, probate records)
Term
Recording Acts provide for...
Definition
- recording interests in land
- prioritizing competing claims to the land
Term
Derivative Title Rule (Common Law)
Definition
first in time = first in right
Term
Recording Act Statutes
Definition
- race
- notice
- race-notice
Term
Recording Act Statute (Race)
Definition
subsequent purchaser prevails if they record first
Term
Recording Act Statute (Notice)
Definition
subsequent purchaser prevails if they lack notice of prior conveyance at the time of purchase
Term
Recording Act Statute (Race-Notice)
Definition
subsequent purchaser prevails if they lacked notice and record first
Term
Shelter Principle
Definition
the protection of a recording act extends not only to the bona fide purchaser, but also to grantees who take from that person
Term
Persons protected by Recording Acts...
Definition
generally the subsequent purchasers for value
Term
Recording (Notice Forms)
Definition
- actual notice: actual knowledge of a prior conveyance
- constructive/record notice: knowledge imputed from the recording system
- inquiry notice: knowledge imputed from off-record facts/circumstances
Term
Chain of Title Problems
Definition
- wild deeds
- deeds recorded too early or too late
- multiple chains of title from a common grantor
Term
Wild Deeds
Definition
chain of title broken by unrecorded deed
Term
Estoppel by Deed
Definition
- if grantor, by the language in the deed, represents that a title of certain quality is being conveyed, the grantor is estopped to deny later that such title has passed to the grantee
- generally limited to warranty deeds
Term
Not Duly Recorded if...
Definition
- recorded out of sequence
- unacknowledged
- forged
- undelivered
Term
Three Types of Title Protection
Definition
- Promises in the real estate contract
- title investigation
- post closing title assurance
Term
Promises in the real estate contract
Definition
Default: marketable/merchantable title

Alternative: marketable record title, insurable title
Term
Title Investigation
Definition
- title search
- title insurance commitment
- attorney opinion letter
Term
Post Closing Title Assurance
Definition
- deed warranty
- title insurance
Term
Marketable Title
Definition
- title not subject to reasonable doubt; one that persons of reasonable prudence (with legal advice) would be willing to pay the fair value for
- not a perfect title, but title reasonably secure against litigation or flaws decreasing market value
Term
Insurable Title
Definition
title that an insurance company is willing to insure unconditionally and without exception (other than those recognized by the contract)
Term
Marketable Record Title
Definition
title that is proved marketable by the public records
Term
Title Defects
Definition
- flaws in title
- encumbrances
- events that have deprived the seller of title (eminent domain, adverse possession)
Term
Encumbrances
Definition
mortgages, liens, leases, easements, covenants
Term
Title v. Non Title Defects
Definition
Non-Title Defects = physical defects of the property

Title Defects = existence of outstanding rights in the property
Term
When is seller required to convey title?
Definition
seller is required to convey title at closing unless otherwise stated in contract
Term
Merger Doctrine
Definition
- once a deed is delivered, all contract provisions relating to title merge into the deed
- buyer can now only sue on covenants in the deed
- cannot sue on "marketable title" promise in contract
- does not apply to collateral matters, can sue on promises in the contract not related to title
Term
Three Types of Deeds
Definition
- general warranty deed
- special warranty deed
- quitclaim deed
Term
Damages under a Warranty Deed
Definition
generally, grantor's liability is limited to the purchase price received
Term
Who Can enforce deed warranties?
Definition
grantees under the present covenant successors because it runs with the land under future covenant
Term
Is the grantor liable for encumbrances the grantee had knowledge of?
Definition
- some courts find the grantor NOT liable

- some courts will hold the grantor LIABLE
Term
Title Insurance
Definition
- generally insures "marketable title"
- subject to exclusions and exceptions from coverage
Term
Exceptions from Title Insurance Coverage
Definition
- taxes/assessments not yet due or payable
- encroachments/boundary line disputes that could be disclosed by a survey
- rights of parties in possession
- easements, liens not shown by public records
- any defects/interests found in insurer's title search
Term
What is the duty of a title insurer?
Definition
- to provide payment for insured loss
- in some states they have a duty to conduct the title search and identify defects in title commitment
Term
Who gets title insurance?
Definition
- The Owner
- The Lender
Term
What happens during the investigation period of the loan process to get a home?
Definition
- credit checks
- property appraisal
Term
What two documents are executed at closing for a home?
Definition
- promissory note
- mortgage
Term
What happens during the investigation period of the loan process to get a home?
Definition
- credit checks
- property appraisal
Term
What two documents are executed at closing for a home?
Definition
- promissory note
- mortgage
Term
How do you foreclose on a mortgage?
Definition
- judicial (court-supervised)
- power of sale (no court supervision)
Term
What are the alternatives to foreclosure?
Definition
- loan workout
- deed in lieu of foreclosure
- short sale
Term
Types of Land Use Regulations
Definition
- nuisance (common law)
- servitudes (private regulations)
- zoning and other government regulation
Term
Type of Zoning Districts
Definition
- use districts
- height districts
- area districts
Term
Zoning Classifications
Definition
- cumulative
- exclusive
Term
Cumulative Zoning Classifications
Definition
most restrictive to less restrictive, moving up and down the pyramid
Term
Constitutional Provisions and Zoning
Definition
- 5th Amendment
- 14th Amendment
Term
Constitutional Provisions and Zoning (5th Amendment)
Definition
no person shall...nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation
Term
Constitutional Provisions and Zoning (14th Amendment)
Definition
no state shall...nor shall any State deprive any person of life, liberty, or property without due process of law
Term
Due Process Clause (5th Amendment)
Definition
Procedural: notice and opportunity to be heard

Substantive
- rational basis test: most government regulations
- strict scrutiny test: actions affecting fundamental rights
Term
Takings Clause
Definition

- eminent domain (actual acquisition) 

- inverse condemnation (regulatory taking)

Term
Substantive Due Process (Rational Basis Test)
Definition
- legitimate government objective
- law bears rational relation to the objective
Term
Substantive Due Process (Strict Scrutiny)
Definition
- substantial/compelling government interest
- law narrowly tailored to achieve the objective
Term
Zoning Flexibility Options
Definition
- zoning amendments
- exceptions
- variances
- non-conforming uses
Term
Zoning Amendments
Definition
modification of the entire zoning ordinance/plan
Term
Zoning Exceptions (special use)
Definition
use is authorized by the plan, but requires special approval/permit by the zoning board
Term
Zoning Variance
Definition
deviation granted to a particular parcel for hardship
Term
Non-Conforming Use (Zoning)
Definition
existing use that deviates from a new zoning plan; grandfathered in, but cannot substantially change use
Term
Zoning Commission Responsibilities
Definition
- comprehensive plan
- zoning ordinance
- zoning amendments
Term
Zoning Board of Adjustment Responsibilities
Definition
- variances
- special uses
- errors in enforcement
Term
CCR
Definition
Covenants, Conditions, Restrictions
Term
Eminent Domain
Definition
the inherent power of a sovereign to take private property for a public use
Term
Public Use
Definition
Early Law = required actual public ownership/use

Midkiff: public use = public purpose

Berman: public use = police power (health, safety, morality, law and order, and the public welfare)

Kelo: public use includes economic development
Term
When is something categorically a taking?
Definition
- permanent physical invasion
- land owner deprived of all economic value
Term
When is something categorically NOT a taking?
Definition
use was prohibited by background laws (nuisance law)
Term
Character of Government Action (More likely to be a taking)
Definition
- temporary physical invasions
- acquired for uniquely public function
Term
Character of Government Action (Less likely to be a taking)
Definition
- public health, safety, welfare
- adjusts economic benefits and burdens for common good
Term
Economic Impact (More likely to be a taking)
Definition
- disproportionate burden on a few
- unduly frustrates investment-backed expectations
Term
Economic Impact (Less likely to be a taking)
Definition
- reciprocal burdens on land owners
- land owner still gets a reasonable return on investment
Term
Can someone get just compensation for a temporary taking/invasion?
Definition
yes
Term
How does a marketing enforceable contract to purchase a home satisfy the Statute of Frauds?
Definition
- a writing evidencing the agreement
- essential terms are included
- signature by the party to be charged
Term
Essential Terms for an Enforceable Contract
Definition
- Parties
- Property Description
- Intent to Obligate
- Price
- Signature
Term
"Party to be charged"
Definition
the one attempting to avoid the duty (the one resisting the contract)
Term
Liquidated Damages
Definition
agreed to by both parties
Term
Specific Performance
Definition
- has clean hands
- no adequate remedy at law (damages would be inadequate and the subject matter of the breach is unique)
- has performed or is ready, willing and able to perform
Term
Equitable Conversion
Definition
- applied to risk of loss situations
- once a contract has been executed, buyer has equitable title to the property
- making them responsible for any damage to the property during the gap period
Term
What kind of recording statute does IL have?
Definition
Notice
Term
TDR
Definition
Transferable Development Rights
Term
covenant of seisin
Definition
- a promise that the grantor owns the interest that the deed purports to convey
- the covenant is only breached when the grantor does not have all of the legal rights the grantor purports to convey
Term
covenant of right to convey
Definition
- grantor's promise that the grantor has the right to convey the interest in the property identified in the deed
Term
covenant against encumbrances
Definition
- the grantor promises the grantee that there are no encumbrances affecting the title to the property
Term
covenant of warranty (to warrant and defend)
Definition
- promise to defend the grantee against any lawful claim made against the grantee's title AND
- promise to compensate the grantee for successful claims made against title

Covenant BREACHED if:
- actually or constructively evicted OR
- grantor fails to provide a defense for the grantee
Term
covenant of further assurances
Definition
- grantor promises to take whatever steps are necessary in order to perfect the grantee's title
Term
Present Covenants
Definition
- seisin
- right to convey
- against encumbrances
Term
Future Covenants
Definition
- warranty
- further assurances
- enjoyment
Term
general warranty deed
Definition
- greatest protection against title problems
- contains all six title covenants
- covers breaches from the grantor and grantor's predecessor in title
Term
quitclaim deed
Definition
- transfers to the grantee only whatever interest the grantor MIGHT have in the property
- contains NO covenants
- NO protection
Term
special warranty deed
Definition
- same as the general warranty deed but only covers breaches from the grantor, NOT the grantor's predecessor
Term
Notice Statute Clue Words
Definition
- good faith
- without notice
Term
Installment Contracts and Warranty Deeds
Definition
- you get the deed at the last payment
- you aren't promised good title until you make the last payment
Term
Remote Grantee Rights
Definition
- all future covenants run with the land and successors can sue for breaches of those warranties
Term
Damages for Breach of Deed Warranty (Partial)
Definition
- pro-rated
- entire amount up to the purchase price
Term
Touch and Concern
Definition
- the covenant must affect the legal relations, burdens, and advantages of the land
- a physical or negative covenant is more likely to touch and concern
Term
Reciprocal Implied Servitude v. Third Party Beneficiary
Definition
- RIS does not require a covenant being in the deed, just that there is notice
- TDB does require the covenant to be in the deed in order for the theory to apply
Term
Non Exclusive v. Exclusive Easement
Definition
- exclusive easement allows you to divide the land (you have the right to share the easement)
- that is not the case with a non-exclusive easement, the servient landowner only has that right

Exclusivity is ONLY applicable to easements in gross
Term
Right of Reinstatement
Definition
cure default for 90 days after service
Term
Right of Redemption
Definition
pay entire mortgage balance three months after foreclosure
Term
Landlord - Tenancy Analysis
Definition
- What tenancy exist?
- Can the tenant sub-lease or assign?
- Relationship between the parties?
Term
Tenancy for Years (Fixed Term)
Definition
a tenancy for any fixed term or duration measured in years, months, or days and expires automatically at the end of the fixed term without a need for either party to give notice
Term
Periodic Tenancy
Definition
- measured by successive, identical periods of time
- automatically renews for successive periods unless one of the parties gives notice
Term
Tenancy at Will
Definition
- a tenancy without a fixed duration and without any defined renewable periods
- last as long as both parties wants it to and ends when one party demonstrates an intent to discontinue the tenancy
Term
Tenancy at Sufferance
Definition
- not really a tenancy
- happens when the tenant operates as a "hold over" in possession after the lease has expired
- last until the landlord evicts the tenant OR the parties agree to create a new tenancy
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