Term
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Definition
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Term
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Definition
| Pass by statutes of intestacy if its holder dies without a will |
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Term
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Definition
| Transferable during its holder’s lifetime |
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Term
| Fee Simple Absolute - What is it? Is it devisable, descendible or alienable? |
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Definition
Absolute ownership with indefinite duration. "To A and his heirs"
It is devisable, descendible and alienable |
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Term
| 3 types of defeasible fees |
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Definition
-Fee simple determinable
-Fee simple subject to condition subsequent
-Fee simple subject to executory limitation |
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Term
| Fee simple determinable - What is it? Is it devisable, descendible or alienable? |
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Definition
Terminates upon happening of stated event and automatically reverts to grantor
“To A for so long as...or during...or until...
Devisable, descendible and alienable |
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Term
| What future interest does grantor have in a fee simple determinable? |
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Definition
| Grantor retains a possibility of reverter - It is automatic and becomes possessory automatically upon termination of the prior determinable estate. |
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Term
| Fee simple subject to condition subsequent - What is it? Is it devisable, descendible or alienable? |
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Definition
Can be terminated by grantor upon happening of a stated event
“To A, upon condition that... or provided that... or but if... or if it happens that...”
Devisable, descendible, and alienable |
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Term
| What future interest does grantor have in fee simple subject to condition subsequent? |
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Definition
| Grantor retains a right of entry or termination - not automatic; a grantor does not have to assert a possibility of reverter in order for a cause of action to arise) |
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Term
| Fee simple subject to executory limitation - What is it? Is it devisable, descendible or alienable? |
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Definition
Terminates upon happening of stated event then passes to 3rd party .... Subject to RAP!
“To A but if stated event happens, to B”
Devisable, descendible, and alienable |
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Term
| What future interest results in a fee simple subject to executory limitation? |
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Definition
| Termination is automatic and future interest in third party |
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Term
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Definition
| Measured by the life of the one or more persons; life tenant is entitled to all ordinary uses and profits from land but cannot waste. |
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Term
| What future interest is created in a life estate? (after it terminates) |
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Definition
| Creates reversion in grantor or remainder or executory interest in third party |
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Term
| Life estate pur autre vie |
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Definition
| Measured by life other than grantee |
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Term
| Life tenant's duty of waste |
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Definition
| Life tenant must not commit waste (must not hurt future interest holders) |
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Term
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Definition
1) Voluntary or affirmative
2) Permissive waste
3) Ameliorative waste |
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Term
| Voluntary of affirmative waste & its exceptions |
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Definition
-Overt conduct that decreases value of estate.
-The life tenant must not consume or exploit natural resources on the property (such as timber, oil, or minerals) unless one of 4 exceptions apply (PURGE):
1) PU – Prior Use: Prior to grant the land was use to exploit, then life tenant may continue to exploit unless otherwise agreed.
Opens Mines Doctrine – If mining was done on land before life estate began life tenant may continue to mine, but is limited to the mines that are already open. Thus, life tenant must not open any new mines.
2) R – Repairs: The life may consume natural resources for repairs and maintenance
3) G – Grant: The life tenant may exploit if granted that right
4) E – Exploitation: Meaning this land is suitable only to exploit |
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Term
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Definition
| Failure to protect or preserve land. Life tenant must simply maintain the premises in reasonably good repair. |
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Term
| Does a life tenant have to pay taxes on the land? |
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Definition
| Yes, the life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value. |
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Term
| Ameliorative Waste & its exception |
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Definition
The life tenant must not engage in acts that will enhance the property’s value unless all future interest holders are known and consent.
Exception: If changed conditions have rendered a piece of property uninhabitable, we allow life tenant to tear down that structure and put something else up in its place. |
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Term
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Definition
| Future interest in the grantor that follows fee simple determinable |
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Term
| Right of entry/power of termination |
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Definition
| Future interest in grantor where the power to terminate follows a fee simple subject to condition subsequent. |
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Term
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Definition
| A future interest (or remainder) in a grantor (follows life estate) |
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Term
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Definition
Future interest in grantee that follows life estates (NEVER fee simple)
Example: To A for life, then to B |
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Term
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Definition
| It is created in an ascertained person and is not subject to any condition precedent |
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Term
| 3 types of vested remainders |
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Definition
1) Indefeasibly vested remainder
2) Vested remainder subject to total divestment
3) Vested remainder subject to open |
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Term
| Indefeasibly vested remainder |
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Definition
The holder of this remainder is CERTAIN to acquire an estate in the future, with no strings attached.
Example: To A for life, remainder to B. A is alive. B is alive. A has a life estate. B has indefeasibly vested remainder. At common law, if B predeceases A, B’s future interest passes by will or intestacy |
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Term
| Vested remainder subject to total divestment |
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Definition
Remainderman exists and his taking is NOT subject to any condition precedent. However, his right to possession can be CUT SHORT because of a condition subsequent, which creates a vested remainder subject to total divestment. (string attached)
Example: O conveys to A for life, remainder to B, provided however, that if B dies under age 25, to C. A is alive. B is 20 years old. A has a life estate. B has a vested remainder subject to total divestment. C has a shifting executor interest. If B is under 25 at the time of A’s death, B still takes. However, B must live to 25 for his estate to retain his interest. Otherwise, B’s heirs lose it all and C or C’s heirs take. O has a reversion because it is possible that neither C nor C’s heirs will exist if and when the condition is breached. |
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Term
| Vested remainder subject to open |
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Definition
Remainder is vested in a group of takers, at least one of whom is qualified to take. But each class member’s share is subject to partial diminution because additional members can still join in.
Example: To A for life then to B’s children. A is alive. B has 2 children, C and D. C and D have vested remainders subject to open. |
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Term
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Definition
Class closes when any member can demand possession.
Example: To A for life then to B’s children. A is alive. B has two children, C and D. Class closes at B’s death and also according to rule of convenience, at A’s death no matter that B is still alive. C and D can demand possession.
Exception: Womb rule: child of B in womb at A’s death will share with C and D. If C or D predecease A, share goes to devisees or heirs. |
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Term
| What happens if a member of a class predeceases the testator? |
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Definition
| They and their heirs are shut out. |
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Term
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Definition
Created in an unascertained person or is subject to a condition precedent or both
Example: To A for life, then to B’s first child. A is alive. B, as yet, has no children. |
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Term
| Rule of Destructibility of Contingent Remainders |
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Definition
At common law, a contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
Example: To A for life and if B reaches 21, to B. Now, A has died, leaving behind B, who is 19. Historically at common law, B’s contingent remainder was destroyed. Thus, O or O’s heirs would take in fee simple absolute.
This has been abolished. Thus, if B is still under 21 when A dies, O or O's heirs hold the estate subject to B's springing executor interest. Once B reaches 21, B takes. |
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Term
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Definition
At common law, the rule applies in one setting: O conveys to A for life, then on A’s death, to A’s heirs. A is alive. Historically, the present and future interests merge giving a fee simple absolute.
Rule in Shelley’s case has been virtually abolished. Thus, today, when O conveys to A for life, then to A’s heirs, A has a life estate and A’s as yet unknown heirs have contingent remainder and O has a reversion, since A could die without heirs. |
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Term
| Doctrine of Worthier Title |
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Definition
Applies when O who is alive, tries to create a future interest in his heirs. (This is still valid)
Example: O who is alive, conveys to A for life then to O’s heirs.
If this doctrine did not apply, A has a life estate and O’s heirs have a contingent remainder because O is still alive and a living person has no heirs. Instead, because of this doctrine, the contingent remainder in O’s heirs is VOID. Thus, A has a life estate and O has a reversion. Doctrine promotes free transfer of land. |
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Term
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Definition
| Future interest created in a 3rd party, which is NOT a remainder |
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Term
| Shifting executory interest |
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Definition
It follows a defeasible fee and cuts short someone OTHER THAN O, the grantor.
Example: To A and her heirs, but if B returns from Canada sometimes next year, to B and his heirs. B has a shifting executory interest and not a remainder because remainders never follow defeasible fees. A has a fee simple subject to B’s shifting executor interest. Does conveyance violate RAP? No because 1 year limit on B’s power. |
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Term
| Springing executory interest |
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Definition
Cuts short GRANTOR or his heirs
Example: O conveys to A, if and when he marries. A is unmarried. A has a springing executory interest. O has a fee simple subject to A’s springing executory interest. Does conveyance violate RAP? No because we will know by the end of A’s life if the condition is met or not. |
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Term
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Definition
| Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life. |
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Term
| Generally, an executory interest with no limit on the time within which it must vest violates RAP. 4 exceptions: |
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Definition
Charity-to-charity exception: A gift from one charity to another does not violate RAP
Fertile Octogenarian Rule – presume that a person is fertile no matter his/her age.
Unborn widow – person’s widow is not determined until death so a disposition to the issue of the widow violates RAP.
Class gifts – if interest of any class member may vest too remotely, whole class gift fails |
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Term
| There are attempts to reform RAP. |
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Definition
-“Wait and see” or “second look” doctrine: Under this majority reform effort, the validity of any suspect future interest is determined on the basis of the facts as they now exist the end of the measuring life. This eliminates the “what if” or “anything is possible” line of inquiry. Wait until it runs its course and then determine its validity on the basis of the facts as they did in actuality manifest.
-Uniform Statutory Rule Against Perpetuities (USRAP): codifies the common law RAP and, in addition, provides for an alternative 90 year vesting period. Could apply life in being + 21 or alternatively, apply 90 year vesting period.
Both the “wait and see” and USRAP reforms embrace:
-The cy pres doctrine: “as near as possible.” If a given disposition violates the rule, a court may reform it in a way that most closely matches the grantor’s intent while still complying with RAP.
-The reduction of any offensive age contingency to 21 years. |
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Term
| Joint tenancy - definition & is it devisable or descendible? |
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Definition
Two or more own with the right of survivorship
It is alienable and can be sold in lifetime. It is not devisable or descendible. |
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Term
| How to create joint tenancy? T-TIP |
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Definition
Joint tenants must take their interests:
• Time – at the same time
• Title – title in the same instrument
• Interest – identical interest
• Possession – right to possess the whole
AND
grantor must clearly express the right of survivorship |
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Term
| How to sever a joint tenancy? (SPAM) |
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Definition
-Severance & sale
-Severance & partition (breakup)
-Severance & mortgage |
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Term
| If a joint tenant enters a contract for the sale of her share, will this result in a sever of joint tenancy? |
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Definition
| Yes, it will sever the joint tenancy as to the contracting's party's interest. This is because of doctrine of equitable conversion: equity regards as done that which ought to be done. |
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Term
| If a joint tenant sells her share, what will the buyer be? |
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Definition
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Term
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Definition
| If a joint tenant mortgages interest in property, it severs joint tenancy. (minority) |
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Term
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Definition
| If a joint tenant mortgages interest in property, it will NOT sever joint tenancy so long as the mortgage payments are made. (majority) |
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Term
| Tenancy by the entirety - what is it? how can it be severed? |
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Definition
Marital interest between married partners with the right of survivorship (recognized in 21 states). Arises presumptively in any conveyance to married partners unless stated otherwise.
-Creditors of only one spouse cannot touch this tenancy.
-Neither tenant, acting alone, can sever a tenancy by the entirety by a unilateral transfer to a 3rd party.
-Sever can only occur either by death or divorce. |
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Term
| Tenancy in common - what is it? how can it be severed? |
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Definition
Two or more own with NO right to survivorship.
Each co-tenant owns an individual part and each has a right to possess the whole.
Each interest is divisible,descendible, and alienable. There are no rights of survivorship between tenants in common. The presumption favors tenancy in common. |
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Term
| Right of co-tenant to possess |
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Definition
| Each co-tenant is entitled to enjoy the whole but no right to exclusive possession of any part. If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster. |
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Term
| Right of co-tenant to retain profits |
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Definition
Co-tenant in possession has right to retain profits from own use of the property:
-Must share 3rd party rent
-Must share net profits from exploitation of land. |
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Term
| Is a co-tenant liable for rent? |
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Definition
| A co-tenant in exclusive possession is not liable for rent. |
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Term
| Can a co-tenant argue adverse possession? |
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Definition
| No, unless he has ousted the other co-tenants, one co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the exclusion of the others. The hostility element of adverse possession is absent. There is no hostility because there was no ouster. |
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Term
| Is a co-tenant responsible for carrying costs such as taxes and mortgages? |
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Definition
| Each co-tenant is responsible for his or her fair share of carrying costs such as taxes and mortgage payments based upon his undivided share. |
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Term
| Is a co-tenant responsible for repairs? |
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Definition
| The repairing co-tenant enjoys a right to contribution for reasonable necessary repairs provided she told the others of the need. |
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Term
| Is a co-tenant responsible for improvements? |
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Definition
| No, there is no right to contribution for “improvements.” However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value caused by her efforts. Attendantly, at partition, the so-called improver bears full liability for any drop in value she caused. |
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Term
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Definition
| A co-tenant must not commit waste |
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Term
| Does a co-tenant have a right to partition? |
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Definition
| A joint tenant or tenant in common has a right to bring an action for partition |
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Term
| Tenancy for years - what is it? Is noticed for termination required? |
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Definition
Lease for a fixed period of time.
Because a term of years states from the outset when it will terminate no notice is needed to terminate. |
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Term
| Periodic tenancy - what is it? Is noticed for termination required? |
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Definition
A lease which continues for successive periods until landlord or tenant give proper notice to terminate (can be created impliedly or expressly)
Notice is required to terminate a periodic tenancy. Usually, it is equal to the length of the period itself unless otherwise agreed. Exception: if tenancy is year-to-year, then 6 months required |
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Term
| Hold over in a residential lease vs. hold over in a commercial lease |
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Definition
In a residential lease, an implied periodic tenancy arises. (usually month or month) If tenant, prior to expiration of written lease is notified of the rental increase, then they have to pay the increased amount. If they are not notified prior to lease expiring, then they pay old amount.
In a commercial lease, tenant is locked into periodic tenancy reflective of the previous written lease. (up to one year) |
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Term
| A periodic tenancy must end at the conclusion of: |
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Definition
| A natural lease period (I.e., Jan 1 lease for month to month. May 15 sends written notice of termination. T is bound until June 30) |
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Term
| Tenancy at will - what is it? Is noticed for termination required? |
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Definition
Lease for no fixed period and is terminable at the will of either landlord or tenant.
Requires express agreement that lease can be terminated at anytime.
Unless the parties expressly agree to a tenancy at will, the payment of regular rent will cause a court to treat it as an implied periodic tenancy.
The tenancy at will may be terminated by either party at any time but a reasonable demand to vacate is usually needed. |
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Term
| Tenancy at sufferance - what is it and when is it terminated? |
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Definition
It is created when T has wrongfully held over past the expiration of the lease. We give this wrongdoer a leasehold estate (tenancy at sufferance) to permit L to recover rent.
The tenancy at sufferance lasts only until L either evicts T or decides to hold T to a new tenancy. |
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Term
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Definition
Duty to repair
Duty not commit waste
Duty to pay rent |
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Term
| Law of fixtures - residential v. commercial |
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Definition
When a residential tenant removes a fixture, she commits voluntary waste. T must not remove the fixture no matter that she installed it. Fixtures pass with ownership of the land. More damage it’ll cause, less likely you can remove it.
If it's a commercial piece of property, then a commercial tenant prior to expiration of the lease is entitled to remove all trade fixtures from the premises. |
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Term
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Definition
| A fixture is a once moveable chattel that, by virtue of its annexation to realty objectively shows the intent to permanently improve the property. (furnace, heating system, custom storm windows). |
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Term
| A tenant installation qualifies as a fixture if: |
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Definition
Express agreement controls – any agreement between L and T on point is binding.
In absence of the agreement, T may remove a chattel that she has installed so long as removal does not cause substantial harm to the premises.
If removal will cause substantial damage, then in objective judgment T has shown the intent to install a fixture, the fixture stays. |
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Term
| Is the tenant liable for any loss to the property? |
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Definition
Common law (historically), the tenant is liable.
Majority view: Tenant may terminate the lease if the premises are destroyed without T's fault. |
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Term
| If a tenant breaches his duty to pay rent and is IN possession, what can the landlord do? |
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Definition
| Landlord can only evict through courts, continue relationship and sue for rent due. If the landlord moves to evict, she is nonetheless entitled to rent from the tenant until the tenant, who is now a tenant at sufferance, vacates. Landlord must NOT engage in self help such as changing locks, forcibly removing tenant, or removing any of tenant’s possessions. Self-help is flatly outlawed and is punishable civilly and criminally. |
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Term
| If a tenant breaches his duty to pay rent and is OUT of possession, what can the landlord do? |
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Definition
SIR
Surrender - the Landlord could choose to treat tenant’s abandonment as an offer of surrender (tenant showing that she wants to give up the lease). If unexpired term is greater than one year, surrender must be in writing to satisfy Statute of Frauds.
Ignore: Ignore the abandonment and hold tenant responsible for the unpaid rent just as if tenant were still there. This option is available only in a minority of states.
Re-let: Re-et the premises on the wrongdoer tenant’s behalf and hold him or her liable for any deficiencies. Majority: Landlord must at least try to re-let. This is a mitigation principle. |
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Term
| Is the tenant liable to 3rd parties? |
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Definition
| T is responsible or keeping the premises in good repair. T is liable for injuries sustained by 3rd parties T invited, even where L promised to make all repairs. |
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Term
| Landlord's duties to Tenant |
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Definition
1) Duty to deliver possession
2) Implied covenant of quiet enjoyment
3) Implied warranty of habitability |
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Term
| Landlord duty to deliver possession |
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Definition
-Majority rule (English Rule) requires that landlord put tenant in PHYSICAL possession of the premises. Thus, if at the start of tenant’s lease a prior holdover tenant is still in possession, landlord has breached and the new tenant gets damages.
-Minority rule (American Rule) requires that landlord give LEGAL possession but not physical possession. |
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Term
| What is implied covenant of quiet enjoyment |
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Definition
| Tenant has a right to quiet use of enjoyment of the premises without interference from landlord or holdover tenants (applies both residential & commercial leases) |
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Term
| How can a landlord breach his implied covenant of quiet enjoyment? |
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Definition
Breach by actual wrongful eviction - This occurs when landlord wrongfully evicts tenant or excludes tenant from the premises. Tenant does not have to pay rent.
Breach by constructive eviction (SING)-
• Substantial Interference – due to landlord’s actions or failures. Does not have to be permanent. Can be chronic.
• Notice – Tenant must tell landlord of the problem and landlord must fail to fix it.
• Goodbye – Tenant must vacate within a reasonable time after landlord fails to correct the problem. |
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Term
| Is a landlord liable for acts of other tenants? |
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Definition
| No, except: landlord must not permit a nuisance on site. Landlord must also control common areas. |
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Term
| Implied warranty of habitability |
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Definition
Premises must be fit for basic human dwelling (applies only to residential leases)
Examples: no heat in winter, no plumbing, & no running water. |
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Term
| What can tenant do when landlord breaches implied warranty of habitability? |
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Definition
MR3:
-Move out and end the lease (T doesn't have to)
-Repair and deduct from rent
-Reduce rent or withhold all rent until court figures out rental value
-Remain in possession, pay rent and seek money damages |
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Term
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Definition
| If tenant lawfully reports landlord for housing code violations, landlord is barred from penalizing tenant, by, for example, raising rent or ending the lease. (If he does, this is a breach of implied warranty of habitability) |
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Term
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Definition
| Tenant may freely transfer his or her interest in whole (thereby accomplishing an assignment) or in part (thereby accomplishing a sublease). |
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Term
| What tort liability does a landlord have? |
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Definition
Common law: L has no duty to make premises safe
Modern law: CLAPS
-Common areas: L must maintain all common areas
-Latent defects rule: L must warn T of hidden defects that L knows about or should know about.
-Assumption of repairs: If L makes repairs negligently, he is liable
-Public use rule: A L who leases public space and should know that because of the nature of the defect and the length of the lease, that T won’t repair, then L will be liable for any defects.
-Short term lease of furnished dwelling: L is liable for any defects which harm T. |
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Term
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Definition
COAH
-Continuous: uninterrupted for the statutory period
-Open & Notorious: visible occupation of land to afford true owner notice and use as the owner would make
-Actual: actual physical entry onto premises
-Hostile: entry without owner’s permission
**must file suit to quiet title before selling** |
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Term
| Is tacking permitted in adverse possession? |
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Definition
| One adverse possessor may tack on to his time with the land his predecessor’s time so long as there is privity, which is satisfied by any non-hostile nexus such as blood, contract, deed, & will. Tacking is not allowed when there is an ouster. |
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Term
| Do disabilities affect adverse possession? |
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Definition
Yes, the statute of limitations will not begin to run if true owner was under some disability to sue when the cause of action first accrued.
However, if disability occurred after the possession, the SOL will continue. |
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Term
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Definition
| The grant of a non-possessory property interest that entitles its holders to use or enjoyment of another’s land (the servient land). |
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Term
| How is an affirmative easement created? |
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Definition
PING
-Prescription
o Continuous use for the statutory period
o Open and notorious use
o Actual use
o Hostile use (without servient owner’s consent)
-Implication: easement implied from existing use. The court may imply an easement if the previous use is apparent and the parties expected that it would continue because it is reasonably necessary to the dominant land’s use and enjoyment.
-Necessity: an easement of right of way will be implied by necessity if grantor conveys a portion of his land with no way out except over part of his remaining land (landlocked)
-Grant: requires a deed of easement in writing signed by the holder of the servient tenement. |
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Term
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Definition
The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.
Light
Air
Support
Stream water from an artificial flow
Scenic view (minority of jurisdictions) |
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Term
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Definition
| Benefits its holder in his physical use or enjoyment of his property. (it takes two!) Dominant tenement gets the benefit and a servient tenement bears the burden |
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Term
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Definition
Confers upon its holder some personal or pecuniary advantage that is not related to his use or enjoyment of his land. Here, servient land is burdened. However, there is no benefited or dominant tenement.
(i.e., right to place billboard on someone's land) |
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Term
| Does the benefit of the appurtenant easement pass automatically? |
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Definition
Yes, regardless of whether it was even mentioned in the conveyance.
Example: A has an easement entitling her to cut across B’s lawn to get more easily to her land (easement appurtenant and A’s land is dominant and B’s land is servient). If A sells her parcel to X with no mention of easement, X enjoys the easement b/c it passes automatically. |
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Term
| Does the burden of the appurtenant easement pass automatically? |
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Definition
| Yes, the burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a BFP without notice. |
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Term
| Is an easement in gross transferable? |
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Definition
| An easement in gross is NOT transferable unless it is for commercial purposes |
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Term
| How to terminate an easement? |
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Definition
ENDCRAMP
-Estoppel
-Necessity
-Destruction of servient land
-Condemnation of servient estate by eminent domain
-Abandonment
-Merger doctrine
-Prescription |
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Term
| Terminating an easement through estoppel: |
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Definition
| Servient owner materially changes his or her position in reasonable reliance on the easement holder’s assurances that the easement will not be enforced. |
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Term
| Terminating an easement through necessity: |
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Definition
| Easements created by necessity expire as soon as the need ends. However, if the easement, attributable to necessity was nonetheless created by express grant, it won’t end when need ends. |
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Term
| Terminating an easement through destruction of servient land: |
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Definition
| Destruction of servient land, other than through the willful conduct of the servient owner will end the easement |
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Term
| Terminating an easement through release: |
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Definition
| Must be a written release given by easement holder to the servient owner |
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Term
| Terminating an easement through abandonment: |
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Definition
| Easement demonstrates by physical action the intent to never use the easement again. This requires physical action by the easement holder. Words alone are insufficient for abandonment. Mere nonuse of easement does not constitute abandonment. |
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Term
| Terminating an easement through merger doctrine: |
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Definition
| The easement is extinguished when title to the easement and title to the servient land become vested in the same person. Even if there is a later separation of title, the easement is not revived. |
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Term
| Terminating an easement through prescription: |
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Definition
The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession. Remember COAH
• Continuous interference for the statutory period
• Open and notorious
• Actual
• Hostile |
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Term
| License definition & are they subject to SOF? |
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Definition
Mere privilege to enter another’s land for a narrow purpose
Licenses are not subject to the statute of frauds. Thus, you do not need a writing to create a license.
Licenses, even if you pay value for them, are freely revocable at the will of the licensor unless estoppel applies to bar revocation. |
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Term
| Exception to when license cannot be revoked: |
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Definition
| Estoppel will apply to bar revocation but only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation. |
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Term
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Definition
| Entitles its holder to enter servient land and take from it the soil or some substance of the soil such as minerals, timber, & oil. The profit shares all the rules of easements. |
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Term
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Definition
The covenant is a promise to do or not do something related to land. It is unlike the easement because it is not the grant of a property interest, but rather a contract or promise regarding the land. It is accompanied by money damages.
Covenants can be negative or affirmative. |
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Term
| When will the burden of the covenant run with the land? |
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Definition
WITHN
-Writing: original promise in writing
-Intent: original parties intended that the covenant would run and bind successors
-Touch & concern the land: covenant must relate to the use and enjoyment of land
-Horizontal & vertical privity
-Notice |
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Term
| What is horizontal privity and vertical privity? |
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Definition
-Horizontal privity = original covenanting parties were in a relationship independent of the covenant. This is hard to establish. It requires that they be in succession of estate, meaning that they were in a grantor/grantee or landlord/tenant or mortgagor/mortgagee relationship
-Vertical privity = any non-hostile connection between promisor and successor established by contract, blood relation or devise. This is easier to establish. The only time vertical privity will be absent is interest is acquired through adverse possession. |
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Term
| When will the benefit of a covenant run with the land? |
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Definition
WITV
-Writing
-Intent
-Touch & concern the land
-Vertical privity (horizontal privity is not required) |
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Term
| How can a covenant be terminated? |
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Definition
• Written release
• Merger of benefited and burdened estates
• Condemnation of burdened property |
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Term
| What is an equitable servitude? How is it different than a covenant? |
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Definition
| A promise (covenant) that equity will enforce against successors. The relief is injunctive relief. |
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Term
| How do you create an equitable servitude? |
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Definition
• Writing – original promise was in writing
• Intent – parties intended that the promise would bind successors
• Touch and concern – promise affects the parties as landowners
• Notice – successors of the burdened land had notice of the promise
Note: Privity is not required to bind successors |
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Term
| What is an equitable servitude? How is it different than a covenant? |
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Definition
| A promise (covenant) that equity will enforce against successors. The relief is injunctive relief. |
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Term
| Defenses to enforcing an equitable servitude |
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Definition
| Changed conditions – the changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the entire area has changed. Mere pockets of limited change are not good enough. All or nothing! |
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Term
| Lateral Support is the right to: |
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Definition
Have land supported in its natural state by the adjoining land.
Strict liability will apply if plaintiff shows that the improvements on land (shrubs, foundation, structures) did not contribute to the land's collapse (that it would have subsided even in its natural state).
If the land would not have subsided in its natural state, the excavating landowner is liable for the damages if she was negligent. |
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Term
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Definition
| Government’s 5th amendment power to take private property for public use in exchange for just compensation. |
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Term
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Definition
| Pursuant to its police powers, government may enact statutes to reasonably control land use for health, safety, and welfare. |
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Term
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Definition
Landowner wants permission to depart from zoning. Must show:
• Undue hardship and
• Variance wont decrease neighboring property values |
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Term
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Definition
Exactions are amenities the government seeks in exchange for granting permission to build. To pass constitutional scrutiny, these exactions must be reasonably related both in nature and in scope to the impact of the proposed development. If they are not, the exactions are unconstitutional.
Example: Developer seeking to permission to build 200 unit residential development. Town tells you that it will grant you permit if you agree to provide several new streetlights, a small park and wider roads. |
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Term
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Definition
1) Be in writing
2) Must describe the property
3) Be some consideration |
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Term
| Exceptions to when land contract does NOT need to be in writing: |
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Definition
Doctrine of part performance – if two of the following three are satisfied, equity will decree specific performance of an oral contract for sale of land:
• B takes possession
• B pays all or part of the price
• B makes substantial improvements |
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Term
| What if the amount of land recited in the land contract is more than the actual size of the parcel, then remedy is: |
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Definition
| Specific performance with pro rata reduction in price. (Still get property but at a discounted price) |
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Term
| Doctrine of equitable conversion |
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Definition
| Once contract is signed, buyer owns land subject of course to the condition that he pay the purchase price at closing. Thus risk of loss is placed on BUYER unless contract says otherwise. |
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Term
| Two implied promises in every sale of land contract: |
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Definition
1) Marketable title
2) The land contract contains NO implied warranties of fitness or habitability |
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Term
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Definition
| Sellers promises to provide marketable title at closing, meaning title is free from reasonable doubt (i.e., lawsuits). |
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Term
| Circumstances that will render title unmarketable |
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Definition
1) Defects in record chain of title – title may be unmarketable because of defects in chain of title
2) Adverse possession – if even part of the title rests on adverse possession, it is unmarketable. Seller must be able to provide good record title.
3) Encumbrances – mortgages, liens, easements, restrictive covenants render title unmarketable unless buyer waives.
o Seller has the right to satisfy an outstanding mortgage or lien at the closing, with the proceeds of the sale. Thus, buyer cannot claim title is unmarketable because it is subject to a mortgage prior to closing, so long as the parties understand that the closing will result in the mortgage being satisfied or discharged.
4) Zoning ordinances – title is unmarketable when property violates a zoning ordinance. |
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Term
| While the land contract contains no implied warranties of fitness or habitability, the seller can be liable for: |
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Definition
Misrepresentation, active concealment and failure to disclose.
Also, there is an implied warranty of fitness and workmanlike construction applies to the sale of a new home by a builder-vendor.
Note: even a general disclaimer won't relieve defendant of fraud. Needs to be specific! |
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Term
| Deed is the operative document at closing and passes title from seller to buyer. A deed must be: |
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Definition
LEAD
Lawfully executed and delivered |
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Term
| Lawful execution of a deed |
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Definition
-The deed must be in writing signed by the grantor.
-The deed need not recite consideration nor must to pass to make a deed valid
-Description of the land does not have to be perfect (require only an unambiguous description and good lawful execution of deed) |
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Term
| Delivery requirement for a deed |
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Definition
-Grantor physically or manually transfers the deed to grantee.
OR
-Grantor has present intent to be bound irrespective of whether or not the deed was handed over. (I.e., recording deed is sufficient for delivery)
Note: if a recipient expressly rejects deed, it defeats delivery |
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Term
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Definition
-Quitclaim deed
-General warranty deed
-Special warranty deed |
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Term
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Definition
| It contains no covenants. Grantor isn’t even promising he has title to convey. But grantor did implicitly promise in the land contract to provide marketable title at closing. |
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Term
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Definition
| Warrants against all defects in title including those to grantor’s predecessors (runs with the land and can be enforced by any subsequent purchaser). All 6 covenants |
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Term
| General warranty deed: Present covenants |
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Definition
Present covenants are breached at the time of delivery:
-Covenant of seisin: grantor promises he owns estate
-Covenant of right to convey: grantor has power to transfer
-Covenant against encumbrances: no servitudes or liens |
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Term
| General warranty deed: Future covenants |
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Definition
Not breached until grantee is disturbed in possession. Thus SOL does not breach a future covenant until that future date.
-Covenant for quiet enjoyment: grantee wont be disturbed in possession by a 3rd party’s lawful claim of title
-Covenant of warranty: grantor will defend grantee against any lawful claims of title brought by others.
-Covenant for further assurances: grantor will do whatever is needed in the future to perfect the title if it turns out to be flawed. |
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Term
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Definition
Provided for by statute in many states, this deed contains two promises that grantor makes only on behalf of himself:
-Grantor promises he hasn’t conveyed property to anyone other than grantee
-Grantor promises that property is free from encumbrances made by grantor |
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Term
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Definition
One who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if later acquires the previously transferred interest.
For example, someone who grants a deed to real estate before he actually owns the property can’t later go back and undo the sale for that reason if, say, the new owner strikes oil in the backyard. |
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Term
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Definition
| a subsequent BFP with no notice prevails over a prior grantee who fails to record (last BFP with no notice to enter wins) |
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Term
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Definition
| a subsequent BFP with no notice is protected only if he first records before the prior grantee |
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Term
| Who does recording system apply to? Who does it not apply to? |
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Definition
-Recording acts protect only bona fide purchaser and mortgagees (creditors)
-Recording statute do NOT protect donees, heirs or devisees unless Shelter rule applies |
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Term
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Definition
-Actual notice – knowledge gained from any source (i.e., O tells A)
-Inquiry/constructive notice – a person required to make reasonable inquiry is charged with knowledge of whatever the inquiry would have revealed. Note: Buyer of real estate has duty to inspect before transfer of title to see if anyone else is in possession.
-Record notice – Recorded conveyances in chain of title |
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Term
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Definition
One who takes from a BFP will prevail against any entity that the transferor-BFP would have prevailed against. In other words, the transferee “takes shelter” in the status of her transferor, and thereby “steps into the shoes” of the BFP even though she otherwise fails to meet the requirements of BFP status. Aims to protect BFP
Example: O conveys to A, who does not record. O conveys to B, a BFP who records. B then conveys to C, who is a mere done or who has actual knowledge of the O to A transfer. In the contest of A vs. C, who prevails? C wins in both a notice and a race-notice state because of the Shelter Rule. C steps into the shoes of B who was a BFP who recorded first. |
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Term
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Definition
| A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a debt. On default, lender can realize on mortgaged real estate by foreclosure. |
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Term
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Definition
Mortgagor = Debtor/notemaker
Mortgagee = Lender/creditor |
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Term
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Definition
| Creditor lends money in exchange for the debt but instead of executing a note or mortgage deed, he hands the creditor a deed to the property. As between the debtor and creditor, parol evidence is admissible to show party's intent. However, if the creditor proceeds to sell the property, debtor's only recourse is to sue creditor for fraud and sale proceeds. |
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Term
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Definition
| If B has “assumed the mortgage,” both O and B are personally liable. B is primarily liable. O remains secondarily liable. |
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Term
| "Subject to the mortgage" |
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Definition
| If B takes “subject to the mortgage” B assumes no personal liability. Only O is personally liable. But, if recorded, the mortgage sticks with the land. Thus, if O does not pay, mortgage pay be foreclosed. |
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Term
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Definition
| Mortgagee must foreclose by proper judicial action. At foreclosure, the land is sold. The sale proceeds go to satisfying the debt. Foreclosing party gets paid first and everything left over, goes to the parties to the right on the horizontal timeline. For everyone to the left of the foreclosing party, their lien stays on the property and whoever purchases at the sale are purchasing subject to mortgage and must pay that with any interest. |
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Term
| If proceeds are less than the amount owed, mortgagee brings: |
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Definition
| A deficiency action against the debtor. |
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Term
| If proceeds result in a surplus, waht is the order of funds distributed? |
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Definition
| Attorneys fees, foreclosure expenses, and any accrued interest on foreclosed mortgages. The sale proceeds are then used to pay off the mortgages in order of priority. Each claimant is entitled to satisfaction in full before a subordinated lienholder may take. |
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Term
| What is the effect of foreclosure? |
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Definition
1) Foreclosure will terminate interests junior to the mortgage being foreclosed but will NOT affect senior interests.
2) Foreclosure does not affect any interest senior to the mortgage being foreclosed. The buyer at the sale takes subject to such interest. |
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Term
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Definition
A mortgage given to secure a loan that enables the debtor to acquire the encumbered land gives mortgagee super priority.
Example: C lends O 100k so that O can purchase Blackacre. C takes as collateral a security interest in Blackacre, the very parcel that C’s extension of value enabled O to acquire. C is a purchase money mortgagee. Assuming that C records properly, he has first priority in the parcel he financed. |
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Term
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Definition
At any time prior to the foreclosure sale, the debtor can try to redeem the land by paying the amount due. (pay off the missed payment or payments plus interest plus costs)
Note: Cannot waive the right to redeem in the mortgage itself |
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Term
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Definition
| Statutory redemption gives the debtor-mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (typically six months to one year). Where recognized, statutory redemption applies after foreclosure. The amount to be paid is usually the foreclosure sale price rather than the amount of the original debt. |
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Term
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Definition
Water belongs to those who own the land bordering the water course. Natural uses (e.g., household consumption) prevail over artificial uses (e.g., manufacturing) (First natural use)
One riparian will be liable if his or her use unreasonably interferes with others use. |
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Term
| Prior appropriation doctrine |
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Definition
-Water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.
-Rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so.
-Any productive or beneficial use of the water including use for agriculture is sufficient to create the appropriation right. |
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Term
| Ground water (percolating water) |
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Definition
| The surface owner is entitled to make reasonable use of any groundwater. However, the use must not be wasteful. |
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Term
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Definition
Those which comes from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
Surface water is considered an evil to be eradicated (common enemy rule) – a landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others land. |
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Term
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Definition
| Invasion of land by tangible physical objects. To remove a trespasser, bring an ejectment action. |
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Term
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Definition
Substantial and unreasonable interference with another’s use and enjoyment of land
Unlike trespass, nuisance does not require tangible physical invasion. Thus, odors and noise could give rise to a nuisance but not a trespass.
No nuisance when the problem is the result of plaintiff’s hypersensitivity or specialized use. (objective) |
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