Term
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Definition
A restraint on alienation is a provision that prevents an owner from transferring his or her interest in the land.
Distinguish: Restraints on use, which are perfectly valid. |
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Term
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Definition
| "To A, but if A ever transfer this land without my consent, I may reenter and terminate the estate." |
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Term
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Definition
| "To A, but A agrees and covenants never to transfer this land without my consent." |
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Term
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Definition
| "To A, but if A ever attempts to transfer this land without consent, the transfer shall be null and void." |
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Term
| Validity of Disabling, Forfeiture and Promissory Restraints. |
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Definition
All disabling restraints, on all kinds of interests are void, except in a spendthrift trust.
Forfeiture and promissory restraints are sometimes enforced. They are more likely to be upheld if:
1. The interest is less than a fee simple.
2. The restraint is limited in time and number of persons affected.
3. The restraint has a reasonable purpose.
4. The land was conveyed for a charitable use. |
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Term
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Definition
| Creates the trust and transfers property (res or corpus) into it. |
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Term
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Definition
| Holds title to the trust property and administers the trust. |
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Term
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Definition
| Receive distributions of profits and property from the trust. |
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Term
| How can a trustor create a trust? |
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Definition
1. Deed the corpus to the trustee.
2. Declare himself to be a trustee.
3. Leave property by will to the trustee (testamentary).
4. Establish the trust during life and then pour over additional corpus into it by will. |
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Term
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Definition
| Must have beneficiaries who are identifiable by the time their beneficial interest can be enjoyed (class gifts are okay) |
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Term
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Definition
| Must have a group of beneficiaries who are reasonably numerous and are not individually defined. |
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Term
| What type of property can be included in a trust? |
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Definition
| A trust may include both real and personal property. The beneficial interests may be present interests or future interests. The RAP applies to beneficial interests in private trusts but not to trusts in which all beneficiaries are charities. |
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Term
| Presumption between tenancy in common and joint tenancy with right of survivorship |
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Definition
| Presume that it is a tenancy in common unless the grantor states that it is a joint tenancy with right of survivorship. |
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Term
| Joint tenancy with right of survivorship |
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Definition
| At the death of one of the joint tenants, the entire remaining property transfers to the other tenant. |
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Term
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Definition
| No right of survivorship for tenancy in common; at the death of one of the tenants in common the property passes through a will or the intestacy laws. |
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Term
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Definition
All four of the unities are necessary for a joint tenancy with right of survivorship.
1. Unity of Time
2. Unity of Title
3. Unity of Interest
4. Unity of Possession
In a tenancy in common, there must unity of possession |
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Term
| O deed "To A, 1/2 interest as a joint tenant with right of survivorship." One week later, O deeds, "To B, 1/2 interest as a joint tenant with right of survivorship. A and B have ... |
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Definition
| Tenancy in common because no unity of time or title. |
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Term
| O deeds, "To A and B as joint tenants with right of survivorship, A to have 75% interest and B to have 25% interest. A and B have ... |
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Definition
| Tenancy in common because no unity of interest (because they have to have equal shares) |
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Term
| A owns land in fee simple absolute. A deeds "To A and B as joint tenants with right of survivorship." And and B have a ... |
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Definition
| Tenancy in common because they do not have the unities of time or title (because A already had title). |
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Term
| A and B are tenants in common (or joint tenants). A puts a fence down the middle of the land and tells B to stay off A 's side. This violates the unity of ... |
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Definition
Possession. All of the cotenants are entitled to possess all parts of the property. You cannot keep anyone off unless there is a mutual agreement.
Cotenants are entitled to use all the fruit of the land. |
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Term
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Definition
| A conveyance of a joint tenancy interest to an "outsider" converts that interest into a tenancy in common. |
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Term
| A and B are joint tenancy with right of survivorship. A deeds "to X." What do X and B have? |
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Definition
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Term
| If a joint tenant wants to convert her interest into a tenancy in common, how can this be done? |
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Definition
| The joint tenant should find a strawman to break the unities of time and title. The other joint tenant does not need notice. |
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Term
| A, B, and C are joint tenants with right of survivorship. A deeds "to X." B dies. What are the rights of each of these parties? |
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Definition
X: 1/3 tenancy in common.
C: 2/3 tenancy in common with X.
B/heirs: Nothing. |
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Term
| A and B are joint tenants with right of survivorship. A borrows money from the Bank and gives it a mortgage on the land. (B does not sign the mortgage). A dies and her estate is insolvent. May the bank foreclose on the mortgage on a 1/2 interest in the land. |
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Definition
Bank will claim that there was a severance when the mortgage was put on the property.
Whether the court agrees depends on whether the jurisdiction follows the title or lien theory of mortgages. |
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Term
| Title Theory of Mortgages |
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Definition
| Putting a mortgage on a property causes a severance of a joint tenancy with right of survivorship. |
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Term
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Definition
| Putting a mortgage on a property does not cause a severance (this is the majority rule). |
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Term
| A and B are joint tenants with right of survivorship, A plaintiff sues A and gets a judgment (which becomes a lien). Then A dies. Does plaintiff still have a valid judgment lien on the property? |
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Definition
| No, because a judgment lien does not sever the joint tenancy with right of survivorship. |
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Term
| Does one joint tenants putting a lease on a property cause a severance of the joint tenancy with right of survivorship? |
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Definition
| Case law is mixed, but the probable majority is that no severance occurs. |
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Term
| Co-tenants ability to get rent from the other co-tenant. |
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Definition
A co-tenant is not liable to the other co-tenant for his own occupancy of the house.
Both co-tenants must split equally any rent received from third-parties. Co-tenants must equally split taxes, utilities, and maintenance. |
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Term
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Definition
| When one co-tenant forcibly keeps out another co-tenant. |
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Term
| Legal consequences of ouster |
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Definition
A owes B half the fair rental of the house.
The statute of limitations in adverse possession begins running against B. No adverse possession just because B is away; only adverse possession when A does something illegal (i.e. ouster). |
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Term
| Co-tenants responsibility to pay for maintenance and repairs |
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Definition
Co-tenants must pay for reasonable repairs (as well as property taxes, mortgage payments, expenditures to preserve and protect the property).
Co-tenants do not have to pay for improvements to the property (i.e. addition or replacement). |
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Term
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Definition
| Always available in any tenancy in common or joint tenancy with right of survivorship |
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Term
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Definition
| Court places a boundary separating the contents (like being neighbors) |
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Term
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Definition
| Court orders sheriff to sell the property and divide the proceeds among the co-tenants. |
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Term
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Definition
A partition includes an accounting, if requested.
The court will consider whether:
1. A owes B any money for rents that A got from tenants, and
2. B owes A any money for repairs, property taxes, etc. (no statute of limitation in B having to pay). |
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Term
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Definition
| Arises when one of the co-tenants buys the entire property at a forced sale for a bargain price. The co-tenant must give the other co-tenant the right to pay half of the bargain price (applies to both joint tenants and tenancies in common). |
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Term
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Definition
If A and B are joint tenants with right of survivorship, then there is a split of authority if A illegally kills B.
In a majority of states, A is a tenant in common.
In other states, A is deemed to have died first and therefore has nothing. |
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Term
| Estates that can be owned by tenants |
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Definition
1. Fixed term estate (ends automatically)
2. Periodic (give notice to terminate)
3. At-will (has not definite term) |
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Term
| What interests does the landlord own? |
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Definition
1. Rents (interests in the land) and
2. Reversion (right to get property back again) |
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Term
| If landlord and tenant do not say anything about the term of the lease, and T pays rent on a regular basis, what type of tenancy do you have? |
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Definition
T has a periodic tenancy of the term that the money is usually paid.
A tenancy at will only exists when there is no rent or the rent is irregular. |
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Term
| Notice to terminate a periodic tenancy |
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Definition
1. Notice must be gives one full period in advance of termination (except for year-to-year or longer, 6 months is enough) and
2. The notice must cause a termination at the end of a regular lease period. |
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Term
| Application of the statute of frauds to leases |
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Definition
| The statute of frauds applies to leases longer than one year. |
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Term
| Landlord's liability for personal injury |
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Definition
| The general rule is caveat emptor (no landlord liability). There are six exceptions. |
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Term
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Definition
A landlord is not liable for latent defects.
L is only liable if L knows or has reason to know of the defect. This is easy to prove because before renting, L must carefully inspect the residence. |
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Term
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Definition
| L is liable for parts of the building that are not leased to any one tenant. Again, L must know or have reason to know of the defect. |
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Term
| Short-term, Furnished, Residential Tenancy |
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Definition
| L is liable for all personal injuries that occur at this type of property. (Think vacation properties). |
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Term
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Definition
| If L leases property that he knows will be used for public use, then L will be liable for personal injuries. The person injured must be a member of the public; this is inapplicable if an employee is injured. |
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Term
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Definition
| (Rare) If the landlord says that he will repair and then fails to do so, then L will be liable for resulting personal injuries. |
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Term
| Landlord's Negligence in Attempting to Repair |
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Definition
| If the landlord attempts to repair something for a tenant and does so negligently, then the landlord will be liable for all resulting personal injuries. |
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Term
| Landlord Liability -- New Trend |
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Definition
By the growing trend of cases, L is liable for injuries resulting from negligence whether or not the 6 situations existed.
Under this view, the landlord will be liable if he fails to maintain security features or violates a statute (negligence per se). If L did not know or have reason to know of the defect then he will be liable even under the new theory. |
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Term
| The Implied CovenaDnt of Quiet Enjoyment |
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Definition
Even if no injury to person or property involved, L can be liable for breach of the implied covenant of quiet enjoyment.
Every lease of every type is deemed to contain this covenant -- residential and commercial. |
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Term
| Examples of violations of the covenant of quiet enjoyment |
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Definition
1. Interference by L in T's possession (i.e. playing L's stereo loud every night). (T can move out or seek damages)
2. If L did not have title to the property.
3. If L fails to remove the previous tenant (T can move out or seek damages).
4. Partial Actual Eviction - If L has physically deprived T of part of the lease (but not all). If L does this, then T owes no rend until L gives him access to all the space.
5. Constructive Eviction - (a) conditions are very bad; (b) they must result from an act or omission of the landlord; and (c) tenant must move out. T can get in the space but cannot use it practically. |
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Term
| Implied Warranty of Habitability |
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Definition
Applies only to residential property.
The standard of performance is drawn from the local housing code. Any substantial violation of the code is also a breach of the warranty of habitability. |
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Term
| Remedies available to T for a breach of the implied warranty of habitability |
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Definition
1. Terminate the lease and move out
2. Abatement of the rent
3. Damages for breach of the warranty
4. Repair and deduct from the next month's rent
T cannot get specific performance.
Before claiming any remedy, T must give L notice and a reasonable time to cure. |
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Term
| What happens if T purchases the property that he has been renting? |
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Definition
| This is called a release. The rents and reversion merge with T's leasehold, giving T a fee simply absolute. |
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Term
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Definition
L accepts T's offer to convey the leasehold to L.
The leasehold merges with L's rents and reversion interest, giving L a fee simple absolute.
Statute of frauds applies to leases and transfers on estate if more than one year remains on the lease. |
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Term
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Definition
| L refuses to accept anything from T and T vacates the premises, ceasing to pay rent. |
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Term
| What can L recover if T abandons a lease? |
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Definition
L can recover the difference between T's rent and the present fair market rent.
L can recover this sum immediately as an anticipatory breach, but must discount T's liability to present value because L is getting it early.
If L actually attempts to relet, L can also recover from T for:
1. Reletting expenses and
2. Full rent while seeking a new tenant |
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Term
| What if the property is destroyed by a fire during a lease term? |
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Definition
T has an option/election to terminate the lease if T is leasing a part of the property.
Only a minority of states let T terminate if T is leasing the entire parcel of real estate.
T cannot force L to rebuild the damaged building. |
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Term
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Definition
If T does not move out when the lease expires, L has 2 choices:
1. Treat T's rights as expired and bring an action in unlawful detainer (evict)
2. Treat T as a periodic tenant with a period based on the term of the old lease. If the old lease was for a year or more, T is not a year-to-year periodic T. If the old lease was for less than a year, T is now a month-to-month periodic tenancy.
But no periodic tenancy will result if the holdover was brief and beyond the tenant's control. |
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Term
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Definition
If T changes the locks and puts T's possessions on the sidewalk after T's lease has expired then L is liable for forced entry.
L can also be liable for conversion of personal property. |
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Term
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Definition
| If T1 transfers his entire remaining term to T2. It doesn't matter what the parties call the transfer or who will pay rent. |
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Term
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Definition
| If T1 transfers to T2 anything less than the full term of the lease. It doesn't matter what the parties call the transfer or who will pay rent. |
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Term
| Is L's consent necessary for T to enter into an assignment or sublease? |
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Definition
Only if the lease says so.
If the lease is silent, then no.
If the lease requires L's consent, then L does not need to be reasonable in withholding the consent. L can be arbitrary, but not illegal. |
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Term
| What if T subleases or assigns the lease to T2 without L's consent (assuming it's required)? |
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Definition
| The transfer is effective but it's a breach of the lease allowing L to terminate the lease (and hence, the sublease or assignment) |
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Term
| Is T2 responsible for covenants made in the original lease (i.e. to pay rent)? |
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Definition
The covenants are only binding on T2 if
1. The covenant touches and concerns the land and
2. The entire tenant's estate is transferred to T2 (i.e. it's an assignment, there is vertical privity) |
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Term
| If T1 makes a sublease to T2 and then there is default in rent. Who is personally liable to L for the rent? |
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Definition
T1 is liable (unless expressly released)
T2 is generally not liable if the transfer is a sublease, since T2 does not have the full estate with which the covenant to pay rent runs.
But T2 is liable on a contractual basis if T2 expressly promised to pay rent. |
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Term
| If T1 makes an assignment to T2 and there is a default in rent payments, who is liable? |
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Definition
T1 is liable.
T2 is liable for rent, and for all other covenants that "touch and concern the land." |
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Term
| What if T2 receives an assignment and then makes a second assignment to T3? |
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Definition
| T2's liability for any further rent is ended unless T2 has assumed the covenant to pay the rent. |
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Term
| If L1 sells the building to L2, must T pay rent to L2? |
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Definition
| Yes, because the benefit of the rent runs with the landlord's estate. |
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Term
| Is L2 personally liable if the original lease contained a covenant to maintain the property and pay the taxes? |
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Definition
| Both L1 and L2 are liable because the covenants touch and concern the land. So their burden runs to L2. |
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Term
| Is L2 personally liable if the original lease contained a covenant to return the security deposit to T? |
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Definition
| Only L1 is liable because the covenant does not touch and concern the land, and so its burden does not run to L2. |
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Term
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Definition
| The land that the easement goes to. This is the land that is benefited by the easement (the land goes to). |
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Term
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Definition
| The land that the easement goes over. This is the land that is burdened by the easement (the land goes across). |
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Term
| What an easement grant should state: |
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Definition
1. Easement or a possesory estate.
2. Location of the easement
3. Scope of the easement
4. Duration of the easement
A precise description of the servient land is required, but not a precise description of location of the easement on the servient land. |
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Term
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Definition
| Similar to an easement, except it allows the holder to extract some natural resource from the land. It follows the same rules as easements. |
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Term
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Definition
An easement which is not appurtenant to any specific land.
Examples include long distance railroad tracks and long distance power lines easements.
Such easements cannot be transferred unless they are for a commercial purpose.
Most easements in gross are for commercial purposes. No land is benefited. |
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Term
| Sale of dominant land subject to an appurtenant easement if the easement is not mentioned in the deed. |
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Definition
| The easement goes automatically with the dominant land. |
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Term
| Sale of servient land subject to an appurtenant easement if the easement is not mentioned in the deed. |
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Definition
| The new buyer of the servient land will take the land subject to the easement if the buyer had notice of the easement. |
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Term
| How would a buyer of a servient land have notice of an easement? |
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Definition
1. Might be recorded in the public records.
2. Might be visible
3. The buyer might have actual knowledge. |
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Term
| How can an easement by created? |
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Definition
PINE
1. Prescriptive (SOF doesn't apply)
2. Implied (SOF doesn't apply)
3. Necessity (SOF doesn't apply)
4. Express (SOF applies!) |
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Term
| Express Grants and Reservations of Easements |
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Definition
The statute of frauds applies to express grants of easements.
Express Grant: The owner of the servient land "grants" the easement to the owner of the dominant land.
Express Reservation: Assume A owns both lots and sells one lot to B, but in the deed "keeps back" an easement over that lot. |
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Term
| Can an easement be reserved in favor of a third party? |
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Definition
No. If a developer owns two lots and sells one lot to A. Later, when he is about to sell the other lat to B, A asks developer to get A an easement over the other lot.
This is an attempt to reserve an easement in favor of a third party, and is void.
You cannot reserve an easement for the benefit of a third party. |
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Term
| Implied Grant and Implied Reservation |
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Definition
1. Common ownership before the lots were split.
2. A continuous quasi-easement before the lots were split.
3. The use is reasonably necessary to benefit dominant land. (Does not need to be absolutely necessary).
4. The easement is visible or obvious.
To get an implied easement, it must be tangible, physical. Cannot get an implied easement for light, view, or air. |
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Term
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Definition
1. Common ownership of a land-locked parcel.
2. The land is land-locked.
The purpose of an easement by necessity is either access or utility lines. (Water access does not count. Can get surface access to route.) |
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Term
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Definition
CON
1. Continuous or regular for adverse possession period (no state is longer than 20 years)
2. Open and notorious
3. Non-permissive (also termed "hostile") (no permission from true owner).
Does not need to be exclusive or necessary. Similar to adverse possession, but based on mere use, not possession. |
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Term
| How can a party stop another from obtaining an easement by prescription? |
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Definition
1. Physically block it off
2. Bring an action for an injunction
3. Give the trespasser permission and have her acknowledge it (give the person a license agreement).
In many states, if land is open and untended then anyone who uses it is presumed to have permission. |
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Term
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Definition
A person can use an easement for anything that it has been approved for as well as for any reasonable change in the technology of the use.
If an easement was okay for horse drawn wagons then it will be okay to use a small car and ever an 18-wheel tractor but not a gas transmission line (this is different technology). |
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Term
| What are an owner's remedies for use of an easement outside of its scope? |
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Definition
1. Damage or
2. Injunction from improper use.
NOT termination of the easement. |
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Term
| Can you add additional land for your easement? |
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Definition
No, if you have an easement for one piece of land, you CANNOT glob on additional land.
This is an absolute rule, even if it will not increase traffic on the easement. |
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Term
| What happens if you have an easement to your land and you subdivide your lot into smaller lots, do you keep the easement? |
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Definition
| All owners may use the easement as long as the increase on easement is reasonable. |
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Term
| Exclusive and nonexclusive easements |
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Definition
If an easement's owner is the only person allowed to use the pathway, the easement is exclusive.
If the servient landowner is allowed to use it, it is non-exclusive.
Easements are presumed to be nonexclusive. (Except railroad track easements). |
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Term
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Definition
If the easement is exclusive, then the dominant land owner has the duty to repair it. (The dominant landowner also has an implied license to reasonably enter the servient land to make repairs).
If the easement is nonexclusive, the court will apportion the cost equitably between the two owners. |
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Term
| Termination of Easements -- Merger |
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Definition
| If one person gets both the dominant and servient land then the easement is terminated by merger. It's gone for good. |
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Term
| Termination of Easements -- Release |
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Definition
| If the dominant land owner decides that she no longer needs the easement and conveys it back to the servient landowner by written deed. |
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Term
| Termination of Easements -- Estoppel |
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Definition
| If the owner of the dominant land decides that she no longer needs the easement and orally states to the owner of the servient land that she is conveying it back to him. If the servient landowner relies on this statement and spends money on it, then the easement is terminated by estoppel. |
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Term
| Termination of Easements -- Abandonment |
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Definition
If the dominant landowner ceases use of the easement for a long person and takes an act showing an intent to give up the easement then it is terminated by abandonment.
Elements:
1. A long period of non-use
2. Some additional evidence of the dominant landowner's intent to give up the easement. |
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Term
| Termination of Easements -- Adverse Possession |
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Definition
| If the servient landowner blocks the dominant landowner's access to the easement for the statutory period then the easement is terminated by adverse possession. |
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Term
| Termination of Easement -- Lack of Continuing Necessity |
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Definition
| If it was an easement by necessity and something makes it so that the easement by necessity is no longer needed then it will be terminated. |
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Term
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Definition
| A license is not an interest in land, but merely a permission from the owner to occupy the land (usually for a limited and temporary purpose) |
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Term
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Definition
| A license may be created orally (no concern about the statute of frauds) |
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Term
| Remedy for interfering with a license |
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Definition
| If a license is interfered with, the owner of the license may get damages at most. (No damages are available unless revoking the license breaches a contract). |
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Term
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Definition
| Yes, licenses are always revocable by their nature. Court of equity will not give you an injunction for specific performance. |
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Term
| If one party attempts to given another an easement but fails, what happens? |
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Definition
It is a license.
But, if the parties relies on the belief that he has an easement, then he will have an easement by estoppel). |
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Term
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Definition
Covenants should be:
(1) In writing (statute of frauds)
(2) Be for consideration
(3) Notorized (to be recordable)
(4) Bind and benefit future owners of the parcels (successors and assigns) |
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Term
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Definition
| To have a successful action on a covenant, we must have a plaintiff with benefited land and a defendant with burdened land. |
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Term
| Rules for covenants to run with the land at law (i.e. damages sought) |
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Definition
1. Touch and concern the land
2. Intended to run (presumed)
3. Horizontal Privity of estate (only required for the burden to run) |
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Term
| Rules for covenants to run with the land in equity (i.e. injunction sought) |
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Definition
1. Touch and concern the land
2. Intended to run (presumed)
3. Notice to the burdened party
Privity has no relevance to make either the benefit or the burden run in equity. |
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Term
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Definition
Either:
1. The original covenant is in a deed that transfers one of the parcels of the land OR
2. The original covenant relates to an easement that one of the parties has on the other's land.
This either exists or does not exist the moment that the covenant is entered into. |
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Term
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Definition
1. The lots are all clustered together
2. The lots are all about the same size (doesn't have to be exact)
3. Most or all of the lots have similar covenants.
All the lots in the "common plan" are considered to be benefitted land with respect to all the covenants on all the other lots in the plan.
In a common plan, everyone has standing to sue everyone else. |
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Term
| If there a common plan, who can enforce the covenants? |
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Definition
| If the developer has not sold all the lots, then either the developer or any of the owners may sue. |
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Term
| Reciprocal Negative Easement |
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Definition
If the developer sells almost all the lots with a covenant, he cannot then make one lot without a covenant.
If the developer does, the lot owners can enforce the covenant through a theory of reciprocal negative easement.
The last lot owner will have notice of the covenant by looking at the neighborhood.
In a common plan, if the developer leaves out a covenant, the court will imply it into the deed. |
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Term
| Termination of Covenants -- Merger |
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Definition
| If the same owner buyers all the lots in a subdivision then the covenant has terminated by merger. |
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Term
| Termination of Covenants -- Waiver or Release |
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Definition
| If the owner of one lot obtains a written permission from all other owners in the subdivision. |
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Term
| Termination of Covenants -- Abandonment, Implied Waiver, or Release |
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Definition
| If the owner of one lot violates the covenant and for many years none of the neighbors sue or complaint. |
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Term
| Covenants -- Unclean Hands |
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Definition
| If individuals violate a covenant then they cannot sue to enforce the covenant against their neighbors. |
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Term
| Covenants -- Changed Neighborhood Conditions |
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Definition
If an owner with unclean hands sues, a court of equity will probably refuse to enforce the covenant on the ground of changed neighborhood conditions.
The changes must be within the subdivision (cannot be a nearby area). |
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Term
| Adverse Possession -- Statute of Limitations |
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Definition
Adverse possession is based on the running of the statute of limitations for an owner's action in ejectment.
The common law period of limitations was 20 years, but many states have shortened it to 10 years. |
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Term
| Adverse Possession -- Elements |
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Definition
OCEAN
1. Open and Notorious (possession is visible, but true owner need not get actual knowledge)
2. Continuous (no long gaps, in light of the nature of the land)
3. Exclusive (no competing adverse possessors, can tack)
4. Actual (the sort of normal use of an owner)
5. Non-permissive (hostile, no permission for true owner) |
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Term
| Constructive Adverse Possession |
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Definition
If you only possess a small part of a bigger plot of land, you still get the entire tract by adverse possession if:
1. The entire tract is one parcel in the public record.
2. The adverse possessor has color of title to the entire tract. (i.e. forged deed).
3. The adverse possessor actually possesses part of the tract. |
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Term
| Sale of land with an adverse possessor on it |
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Definition
| In general, nothing that the true owner does with the title after adverse possessor takes possession will affect the adverse possessor. |
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Term
| People who don't lose their land to adverse possessors |
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Definition
1. Infancy
2. Insanity
3. Imprisonment.
Statute of limitations only begins to run once ALL of the disabilities are gone.
The owner is only protected from the adverse possessor if the disability existed on the day that the adverse possessor moved onto the land. |
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Term
| Adverse Possession -- Future Interests |
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Definition
| The adverse possessor can only take by adverse possession the interest that the true owner has in the land (if T.O. only has a life estate, then the adverse possessor can only get a life estate) |
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Term
| Severed Mineral Estates -- Adverse Possession |
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Definition
If the estates are severed (i.e. there is a surface and mineral estate) then the adverse possessor only acquires the surface rights.
To acquire the subsurface rights, the A.P must either explore the minerals or sell the minerals. |
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Term
| Government Land -- Adverse Possession |
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Definition
| Adverse possessors cannot obtain government land by adverse possession. |
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Term
| Tacking -- Adverse Possession |
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Definition
Tacking is allowed between adverse possessors if there is privity between the adverse possessors.
Privity may be established by a deed, a will, a intestate succession, or even an oral transfer from AP1 to AP2. |
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Term
| Tacking of tenant's possession to landlord. |
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Definition
| The adverse possessor may tack any time to a tenant on the property (if that tenant is paying rent to the AP) |
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Term
|
Definition
| Once an AP completes his statutory time, all liability to the TO vanishes. He will not longer be liable to the TO for trespass or profits. |
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Term
| Rule if there is no recording act statute |
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Definition
| First in time takes the property |
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Term
|
Definition
1. A must fail to record AND
2. B must be a BFP
Typical Language: "All unrecorded conveyances are void against a subsequent purchaser for value and without notice.
Possible Language: "in good faith" |
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Term
|
Definition
| Pay value and take without notice of A's claim. |
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Term
|
Definition
1. A must fail to record AND
2. B must record first
Language: "A subsequent purchaser who records first." |
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Term
|
Definition
1. A must fail to record;
2. B must be a BFP AND
3. B must record first
Language: A subsequent purchaser for value and without notice who records first. |
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Term
| Nondocumented titles that are not subject to the recording acts |
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Definition
Even though B was a BFP and recorded, he still is not protected from A's interests if they arise from:
1. Adverse Possessors
2. Proscriptive Easements
3. Implied Easements
4. Boundary adjustments by acquiescence or oral agreement. |
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Term
|
Definition
Gift is not of value and a person who get a gift is not a BFP.
A person must pay more than nominal value to get something for value. It does not need to be the full market value. |
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Term
| BFP - Mortgages to secure contemporaneous gift |
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Definition
Loaning money in return for a mortgage is giving value.
The original purchaser will take the land subject to the new mortgage. The original purchaser can lose title if the mortgage is not paid. |
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Term
| BFP -- Mortgage to secure an antecedent debt |
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Definition
| This is only value if the mortgagor gives contemporaneous value. For instance, it is value if the person is giving up the right to collect on the debt immediately. |
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Term
| BFP -- Satisfaction of an antecedent debt |
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Definition
| The later purchaser will prevail if he gave up the right to sue under the note. (This constitutes contemporaneous value). |
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Term
|
Definition
When you get a judgment lien, you haven't given value for it (A would prevail).
If B has a judgment sale before A records, and X buys at the sale, then X will prevail because X gave value by paying the sheriff his bid at the conclusion of the sale. |
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Term
| BFP -- Subsequent Purchaser |
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Definition
| Subsequent purchaser need not take the deed directly from the common grantor to win. |
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Term
|
Definition
B will have notice that A owns the property if he is told.
B doesn't need to know whether the statement is truthful, he now has a duty to check. |
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Term
| Notice -- Recorded Documents |
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Definition
| B is deemed to have notice of every piece of information in every recorded document with respect to this land. |
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Term
|
Definition
| When B buys real estate he is deemed to have looked at it and to inquire as to everyone in possession. |
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Term
|
Definition
| You only need one subsequent BFP of a property and then it is immaterial whether people have notice of A. |
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Term
| Installment Contract Purchasers |
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Definition
B does not need to do a search before each payment.
Once B has actual notice of A, then B should stop paying O.
How the court may protect B pro tanto for the payments he has already made:
1. Made A and B tenants in common
2. Give B a lien on the land to recover B's payments already made
3. Allow B to obtain title by making the remaining payments to A. |
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Term
|
Definition
1. Transfer must leave O insolvent
2. Transfer must be for less than FMV
If it is a fraudulent conveyance, it will be set aside at the request of O's creditors. |
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Term
| Necessary elements of a writing or a memorandum for a real estate contract |
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Definition
1. Identification of the parties
2. Identification of the property
3. Words indicating that a sale is intended
4. Signature of the party to be charged (the person who gets sued to enforce the contract)
5. The price and the terms of payment if no a cash sale |
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Term
| If a real estate contract is enforceable, what remedies may the parties obtain? |
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Definition
1. Damages measured by loss of bargain (difference between contract price and market value at the date of the breach).
2. Specific performance (compelling the other side to perform).
3. Rescission (placing the parties back where they started). |
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Term
| Liquidated Damages in a Real Estate Contract |
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Definition
Enforceable if:
1. The earnest money is a reasonable estimate of likely damages (i.e. 10% of the price or less) and
2. The seller actually suffers some damage (according to some courts).
If liquidated damages, seller cannot get actual damages but can get specific performance. |
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Term
| Part Performance of a Real Estate Contract |
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Definition
If at least two of the following are met, then you can meet the SOF:
1. Purchaser takes possession of the property
2. Purchaser pays part of the price
3. Purchaser makes improvements on the land.
If seller reneges, purchaser cannot get damages but can get specific performance.
If purchaser reneges, seller cannot get damages and may be able to get specific performance. If the court adopts an evidentiary theory, seller can enforce. But if the court adopts the reliance theory, seller cannot enforce the contract. |
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Term
|
Definition
Every title contains an implied warranty that the seller will provide marketable title (i.e. title reasonably free of doubt at closing).
Examples:
1. Failing to disclose the existence of an easement
2. A title that is less than fee simple absolute.
3. A building on the land that overlaps the boundary (an encroachment)
4. Any mortgages, leases, liens, etc (i.e. encumbrances) unless they will be discharged at closing or unless they benefit the property.
Purchaser must assert a breach of the marketable title covenant before closing. |
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Term
| Remedies for Unmarketable Title |
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Definition
1. If the seller breaches this implied covenant, then the purchaser may rescind the contract.
2. If the seller acted in good faith, courts are split on whether the purchaser can get loss-of-bargain damages.
3. If the seller acted in bad faith, the purchaser can recover loss of bargain damages. |
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Term
|
Definition
If the buyer is not quite ready to close on the agreed upon date, the buyer can still enforce the contract.
Time is not of the essence in a real estate contract.
The buyer will be liable for "interim" damages that result from the delay, including taxes, insurance, etc. |
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Term
| What can make time "of the essence"? |
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Definition
1. A statement to that effect in the contract itself.
2. A notice from one party to the other, given a reasonable time before the closing date
3. The time of closing is highly important to one party, and the other party knows it.
If time is of the essence, then the buyer will be in material breach, cannot enforce the contract, and is liable for any provable damages. |
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Term
|
Definition
During the executory period, the vendor's interest is considered personal property, and the purchaser's interest is considered real estate.
The purchaser assumes the risk of loss as soon as the contract is signed. If the seller collects some sort of insurance, then the seller must credit the buyer with the insurance proceeds. |
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Term
|
Definition
If seller dies before the closing, it goes to whoever gets the seller's personal property.
If the buyer dies before the closing, it goes to whoever gets the buyer's real estate. The money to purchase the land comes out of the personal property assets. |
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Term
|
Definition
1. Identification of the parties
2. Identification of the land (accurate and complete legal description)
3. Words indicating title is passing (no special words needed)
4. Signature of the grantor (do not need signature of the grantee)
No date, price, or consideration is needed) |
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Term
|
Definition
| Worthless, no legal significance |
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Term
| Conveying by Deeds -- Agents |
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Definition
| Grantor may have the deed executed by an agent, but unless grantor is present, the agent's authority must be power of attorney (SOF) |
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Term
| Conveying by Deed -- Corporations |
|
Definition
The deed must be executed by 2 officers and bear that corporation's seal.
If it conveys all or a substantial part of the corporation's assets, a resolution of the board of directors may be necessary. |
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Term
| Conveying by Deed -- Delivery |
|
Definition
A deed is effective only when delivered.
A delivery requires proof of two elements:
1. Some act done by the grantor, signifying
2. An intent that the deed operate to pass title immediately |
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Term
| Conveying by Deed -- Theft of Deed from Grantor |
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Definition
| An undelivered deed is a nullity. Even a future BFP will not get anything if the deed was stolen. |
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Term
| Conveying by Deed -- Delivery at Grantor's Death |
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Definition
No delivery can occur after death, delivery has to be by live people.
Also must have a live grantee to make delivery effective. |
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Term
| Conveying by Deed -- Recording as Delivery |
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Definition
| Most courts say that recording a deed presumes delivery (some courts say that it is conclusive) |
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Term
|
Definition
If GE fulfill the condition and X delivers the deed, the grantee gets title.
If GR dies before GE fulfills the condition, but GE does so later, GE gets title.
If GE does not fulfill the condition, and X wrongfully delivers the deed anyway, GR keeps title. |
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Term
|
Definition
| A deed that contains no covenants of title. |
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|
Term
| Full Warranty or General Warranty Title |
|
Definition
Contains six covenants
Present Covenants of Title:
1. Seisin ("I own the land")
2. Right to Convey ("I have the right to transfer")
3. Against Encumbrances ("Land is not encumbered")
Future Covenants of Title:
1. Warranty ("I own the land, with no encumbrances.")
2. Quiet Enjoyment ("You won't be disturbed.")
3. Further Assurances ("I'll give you any further document you need to perfect the title.") |
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Term
| Operation of Present Covenants |
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Definition
If warranty only contains present covenants:
SOL begins to run against the GE the day the deed is delivered.
Present covenants do not run with the land, only original grantees can sue on present covenants. |
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Term
| Operation of future covenants |
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Definition
If the deed only contains future covenants:
SOL begins to run against GE when the GE is evicted by something with better title.
Future covenants run with the land meaning that future purchasers can sue. |
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Term
|
Definition
| If you give a warranty deed when you don't have the land and then you later get it, then the warranty deed kicks in and the GE gets the land. |
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|
Term
| What are the three ways to execute a will? |
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Definition
1. Standard written (requires T's signature, 2 witnesses who are present)
2. Holographic (entirely in T's handwriting, no witnesses)
3. Nuncapative (may be oral, T must be dying and know it, 2 witnesses required) |
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|
Term
|
Definition
1. Have reached the age of 18
2. Understand the nature and extent of his property
3. Understand the natural objects of his bounty (who are the relatives)
4. Understand the nature of making a will (know what a will does) |
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Term
|
Definition
| A will doesn't "speak" or operate until the T dies. Until that time, T can amend or revoke it. |
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Term
|
Definition
| When specific devises are sold or destroyed prior to T's death --> the devisee gets nothing |
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Term
|
Definition
| Split of authority -- if there is a mortgage on a devisee's gift at the time of T's death some states say that it must be paid off by T's personal property and other states say that the devisee will take it subject to the will. |
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Term
| New Home Warranties of Quality |
|
Definition
There is an implied warranty of structural soundness in the sale of a new residence.
The suit must be by the first purchaser and the suit must be against the builder.
Not applicable to existing homes or non-residential property. |
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|
Term
| Existing homes and other properties |
|
Definition
There is no implied warranty of quality. The seller may be liable for fraudulent concealment if the seller had actual knowledge of a material defect in the property and did not disclose it.
Same test for relators. |
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Term
| Lateral and subajact support |
|
Definition
To recover, A must prove:
1. A's land would have subsided in its natural state (without the house)--> then B is strictly liable.
2. If the subsidence occurred only because of the weight of the house, A must prove that B was negligent. |
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|
Term
| Removal of Fixtures at the Termination of a Lease |
|
Definition
Tenant may remove fixtures that he installed as long as he does so before the expiration date of the lease and he repairs all damage caused by removal.
Applies to residential and commercial property. |
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|
Term
| Fixtures in the sale of real estate property |
|
Definition
The buyer is entitled to fixtures if they were attached with the intent that they were a permanent part of the real estate.
Intent is judged objectively, not on the basis of what the seller says his intent way.
Building materials always go with the real estate. |
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|
Term
| Fixtures in relation to competing security interests |
|
Definition
The first secured party to file or record has priority.
The Art. 9 fixture lender will have priority (even without filing first) if:
1. The Art. 9 lender has a purchase money security interest and
2. The fixture filing occurs within 20 days of the date the fixtures are installed. |
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Term
|
Definition
| Riparian owners can use all the water they want for domestic purposes and are limited to a reasonable amount for non-domestic purposes. |
|
|
Term
|
Definition
| The owner of a the land can make reasonable amounts of use for all purposes (from a spring). |
|
|
Term
| Surface Water -- How may an owner discharge it into neighboring land? |
|
Definition
Traditional majority view: Any way you want (common enemy rule)
Growing trend: you must discharge the water in a reasonable way so you don't harm other's land. |
|
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Term
|
Definition
| When the lender makes it so that the borrower owes the full balance of the debt immediately. |
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|
Term
|
Definition
The borrower can pay off the debt and redeem the land right up to the foreclosure sale.
Some states even allow the borrower to redeem after foreclosure. To do so, the borrower must pay the amount bid at the sale (plus interest and expenses) to the person who bought it at the sale. |
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Term
|
Definition
| It's void as against public policy to make the borrower waive his right to redeem. |
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Term
|
Definition
| Any excess money from the foreclosure sale; it goes to the borrower. |
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Term
|
Definition
| If the foreclosure sale does not produce enough money to cover the mortgage, then the lender can obtain a deficiency judgment for the balance against the borrower. |
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Term
|
Definition
| Similar to a mortgage, but can be foreclosed by non-judicial "power of sale" in about 1/2 of the states. |
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|
Term
| Installment Contract (Contract for Deed) |
|
Definition
The vendor "finances" the purchase.
Can be foreclosed judicially, or vendor can declare a "forfeiture" in the event of default, cancel the contract, and retain all payments made (unless the court's conscience is shocked).
If conscience is shocked, the court may order:
1. A right of redemption by the purchaser or
2. Restitution of excess money received by the vendor. |
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Term
|
Definition
| The court may transform something that isn't called a mortgage into a mortgage. If so, the owner can repurchase the house under the owner's right of redemption. |
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|
Term
| Factors Indicating "mortgage-like" intent |
|
Definition
1. Owner is in financial distress
2. Owner does not relinquish possession of the property
3. Owner continues to pay property taxes, insurance, and repairs, and
4. The price owner receives is much less than FMV |
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|
Term
|
Definition
| Every mortgagee can redeem up, paying off and acquiring any mortgage of higher priority (if they're in default) |
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|
Term
|
Definition
| Ever mortgagee can foreclose down, thereby wiping out mortgages and other interests of lower priority (including the borrower's interest) |
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|
Term
|
Definition
1. ME2's mortgage remains on the property
2. The buyer gets the rights of ME1, ME3, and MR, but not ME2
3. ME2 can redeem from B and acquire the ME1 rights from B
4. ME2 can still foreclose its mortgage and wipe out B's MR and ME3 rights
But, B can prevent ME2 from doing these things by redeeming from ME2 (i.e. paying off ME2). |
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|
Term
|
Definition
If a mortgage contains a due on sale clause, then the consent of the lender is required for a transfer by the borrower to a grantee (without paying off the mortgage).
Such clauses are valid, under preemptive federal law, except for certain limited types of transfers (not sales) of 1-to-4 family houses:
1. junior liens
2. leases for 3 years or less with no option to purchase
3. transfers at death or divorce
4. transfers to spouse or children
5. transfers to inter vivos trust, where trustor is beneficiary |
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|
Term
| Assuming an existing mortgage |
|
Definition
If grantee assumes the mortgage debt, and there's a default, the bank can:
1. Foreclose on the real estate
2. Sue the grantee (primarily liable)
3. Sue borrowers (secondarily liable as a surety)
Bank can take any or all of these actions in any order that the bank desires.
If the borrower is forced to pay the entire debt to the bank, then they can get reimbursement in a personal action against the grantee.
To aid in obtaining this reimbursement, the borrower can foreclose the mortgage against the grantee (under the doctrine of subrogation)
If the bank forecloses and then forces the borrower to pay a deficiency, the borrower can get reimbursed in a personal action against the grantee (but can't foreclose because the bank already did). |
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|
Term
| Taking "subject to" an existing mortgage |
|
Definition
If GE does not assume the mortgage debt, and there's a default, what are the bank's remedies?
1. Foreclose on the real estate
2. Sue the borrower on the debt
If the borrower is forced to pay the bank the entire debt, the borrower can foreclose the mortgage against the GE (under the doctrine of subrogation)
But the borrower CANNOT get reimbursement in a personal action against the GE. GE has NO personal liability. |
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|
Term
|
Definition
| When there is more than one mortgage on the land and the lenders agree that ME2 will move to ME1's position. |
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|
Term
|
Definition
1. Vendor's lien takes first priority
2. Bank lien takes second priority
3. Judgment lien takes third priority
Purchase money mortgages to the vendor are presumed to have top priority; purchase money mortgages to other mortgagees are presumed to have next highest priority |
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Term
|
Definition
| Married couple; if only the note gets assigned, the mortgage goes along with the note. |
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|
Term
|
Definition
| If A is a holder in due course of the promissory note under UCC Art. 3, A can due on the note and foreclose on the mortgage without regard to the borrower's personal defenses. |
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|
Term
|
Definition
| If the note and the mortgage are divided and are given to two different people, the person with the note will prevail over the person with the mortgage. |
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|
Term
| Zoning classifies land by three criteria |
|
Definition
1. Use (what's on the land)
2. Height (the elevation of the structures on the land)
3. Bulk (front, side, and rear set-back requirements) |
|
|
Term
|
Definition
| Zoning is justified as an exercise of the police power, which is the general power of states and their subdivisions to regulate in the interest of the public health, safety, morals, and general welfare. |
|
|
Term
| Who making zoning decision? |
|
Definition
Zoning is carried out by an ordinance adopted by a city or county under the authority of a state enabling statute.
It must be done in accordance with a comprehensive pan (usually meaning rational forethought) |
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|
Term
|
Definition
Changes the zoning classification (i.e. from residence to commercial.
Carried out by local governing body (i.e. city council)
Generally considered a legislative act.
In few states considered "quasi-judicial," requiring that procedural due process be followed. |
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|
Term
|
Definition
A grant of permission to violate the zoning ordinance in some way.
Granted by a "Board of Adjustment."
Owner must prove "undue hardship." Must be a unique hardship to the landowner.
The variance must not cause unreasonable harm to neighboring land.
Always quasi-judicial, so that due process must be followed. |
|
|
Term
|
Definition
Required for certain "sensitive" uses, even in a district where that type of use is generally allowed.
Granted by "Board of Adjustment" or by local governing body.
Usually granted with numerous conditions to protect neighboring land and general public.
Always quasi-judicial so that procedural due-process must be followed. |
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|
Term
| Preexisting Non-Conforming Use |
|
Definition
May not be shut down immediately.
The ordinance may provide for a period of amortization (3 to 20 years) or may allow the use to continue indefinitely, but may not be
1. Expanded
2. Changed to a different use even though that would be okay under the old zoning, or
3. abandoned. |
|
|
Term
| Judicial Attacks on Zoning |
|
Definition
1. Failure of the city to follow its own ordinance
2. Conflict between the ordinance and the state enabling statute (state statute always prevails)
3. Spot Zoning
4. Denies substantive due process of law because not reasonably related to public health, safety, morals or general welfare (i.e. arbitrary and capricious)
5. Violates a federal statute
6. Constitutes a taking
7. Constitutes an exaction |
|
|
Term
|
Definition
| Singling out a small parcel of land for a different use than its surroundings (this is considered not to be in accordance with a comprehensive plan) |
|
|
Term
|
Definition
There are three ways of showing a taking:
1. A permanent physical occupation of the land (i.e. cable TV).
2. A regulation so severe that there's no remaining economic value (But even this degree of regulation won't be a taking if the owner's activity would have been considered a common law nuisance).
3. A three part test under which the court must balance:
a. Economic impact of the regulation
b. Landowner's reasonable expectations
c. Importance of the regulation to the public |
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|
Term
|
Definition
The city only granting the zoning if the landowner agrees to dedicate land or money to some other project.
Only permissible if:
1. The increased public need is casually related to the owner's project AND
2. The amount of the exaction is approximately equal to the additional public expense that will be imposed by the owner's development.
The burden of proof on these issues is on the local government. |
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