Term
Define: Present Possessory Estates: Fee Simple Absolute
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Definition
Absolute Ownership
Freely Alienable
Potentially infinite duration
Does not terminate unless the owner dies without heirs. |
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Term
Define: Present Possessory Estates: Defeasible Fees: Fee Simple Determinable |
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Definition
A present fee simple estate that is limited by specific durational language
(e.g., so long as, while, during, until)
Terminates automatically upon the happening of the stated condition, and full ownership is returned to the grantor.
Freely alienable, devisable, and descendible, but it is ALWAYS subject to the stated condition |
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Term
Define: Present Possessory Estates: Defeasible Fees: Fee Simple Determinable: Possibility of reverter |
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Definition
Upon the occurrence of the stated condition, the estate automatically reverts back to the grantor.
The grantor's retained future interest is called a possibility of reverter
A possibility of reverter is freely alienable by the grantor both during his life and upon his death. |
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Term
Define: Present Possessory Estates: Defeasible Fees: Fee Simple Subject to a Condition Subsequent |
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Definition
Present fee simple that is limited in duration by specific conditional language (e.g.,"provided that" "on condition that" "but if")
Upon occurrence of the stated condition, the present fee simple only terminates if the grantor affirmatively demonstrates the intent to terminate. No automatic termination
Grantor must explicitly retain the right to terminate |
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Term
Define: Present Possessory Estates: Defeasible Fees: Fee Simple Subject to an Executory Interest |
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Definition
Present fee simple estate that is limited in duration by either conditional language or durational language, such that it will terminate upon the occurrence of the specified condition, and title will pass to a third party.
Automatic termination |
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Term
Define: Present Possessory Estates: Fee Tail |
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Definition
Freehold estate that limits the estate to the grantor's lineal blood descendants by specific words of limitation
(e.g., heirs of the body) |
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Term
Define: Present Possessory Estates: Life Estate |
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Definition
a present possessory estate limited in duration by life.
upon the end of the measuring life, title reverts to the grantor or specified remainderman (this future interest is known as a reversion)
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Term
What is a life estate is measured by the life of a third party?
Present Possessory Estates: Transferability |
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Definition
"life estate pur autre vie" |
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Term
Does a life tenant have to insure the land? pay mortgage? taxes? damage? |
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Definition
NO obligation to insure for the benefit of the remainderman and is not responsible for damage by third-party tortfeasors.
If property can produce income, life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage
If the property is not producing income, the life tenant is responsible for taxes and mortgage interest to the extent of the reasonable rental value of the land. |
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Term
What are the 3 types of waste? |
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Definition
Affirmative: overt conduct causes a decrease in value of the property
Permissive: tenant permits the premises to deteriorate through neglect
Ameliorative: change in use of the property increases the value of the property |
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Term
Define: Concurrent Estates: Tenancy in Common |
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Definition
2 or more grantees, equal right to possess or use the whole property, unity of possession is required, no right of survivorship. |
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Term
Define: Concurrent Estates: Joint Tenancy |
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Definition
Two or more people own property with right of survivorship
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Term
Define: Concurrent Estates: Joint Tenancy: 4 unities
PITT
5th unity? |
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Definition
Possession
Interest
Time
Title
Tenancy by the entirety = joint tenancy plus 5th unity of person -- married people only |
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Term
Define: Concurrent Estates: Rights of co-tenants for reimbursement |
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Definition
Natural Resources: co-tenant is entitled to land's natural resources in portion to her share
3rd party rents: co-tenant must account to others for rents received from 3rd parties
Operating expenses: co-tenant can collect contribution from other co-tenants for paying more than her fair share
Repairs and Improvements: no right to reimbursement
Fiduciary Obligations: no duties owed to each other
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Term
Define: Future Interests: Reversion |
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Definition
The future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party.
Subject to RAP |
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Term
Define: Future Interests: Possibility of Reverter |
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Definition
Automatically retained by a grantor when a fee simple determinable is conveyed |
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Term
Define: Future Interests: Right of Reentry |
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Definition
A right of re-entry is a future interest held by the grantor after a fee simple on condition subsequent is granted |
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Term
Define: Future Interests: Remainder |
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Definition
Future interest created in grantee that is capable of becoming possessory upon the expiration of a prior possessory estate of known fixed duration.
Can be either vested or contingent.
Remainder NEVER follows a fee |
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Term
Define: Future Interests: Remainder: Vested
A conveys Blackacre “to B for life, and then to C and his heirs.” |
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Definition
Not subject to any conditions precedent and is created in an ascertainable grantee.
Here, the grantee, C, is ascertainable. |
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Term
Define: Future Interests: Remainder: Vested subject to open (class gifts)
A conveys a present gift of a remainder interest “to my children.” |
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Definition
a class gift consists of a group of unspecified persons whose number and identity and share of the interest is determined in the future
Here, A conveys a class gift to an unspecified group because the recipients (i.e., those who will qualify as A’s children upon A’s death) are not known until A dies. |
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Term
Define: Future Interests: Remainder: Vested subject to complete divestment
“to B for life, and then to C; but if C has no children, then to D’s children.” |
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Definition
A vested remainder subject to complete indicates that the occurrence of a condition subsequent will completely divest the remainder interest.
C has a vested remainder interest, but if he is not survived by his children at the time of B’s death, then C’s interest will be divested. |
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Term
Define: Future Interests: Remainder: Contingent Remainder
A conveys “to B for life, remainder to C’s heirs.” |
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Definition
A remainder is contingent if it is created in a grantee that is unascertainable, or if it is subject to an express condition precedent to a grantee's taking. Usually in 1 of 2 circumstances:
1. unknown beneficiary so property cannot vest
2. property cannot vest because the known beneficiary is subject to a condition precedent that has not yet occurred.
If C is alive at the conveyance, then C’s heirs are not yet ascertainable, and the remainder is contingent. |
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Term
Define: Future Interests: Remainder: Contingent Remainder: Shelley's case
A conveys “to B for life, remainder to B’s heirs.” |
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Definition
Prevented contingent remainders in the grantee's heirs by defeating the grantor's intent and changing the interest that the grantor purported to give to the grantee and his heirs to a vested remainder.
If the rule in Shelley’s Case applies, then after the merger, B will receive the property in fee simple absolute. If the rule in Shelley’s Case has been abolished, then B has a life estate, and B’s heirs have a contingent remainder in the subject property. |
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Term
Define: Future Interests: Remainder: Contingent Remainder: Doctrine of Worthier Title
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Definition
Similar to Shelley's Rule, except it prevents remainders in the grantor's heirs, and it still applies in some states,
Presumption is in a reversion to the grantor, rebuttable by a showing of contrary intent. |
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Term
Define: Future Interests: Executory Interests |
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Definition
Future interest in a third party that is not a remainder and cuts the prior estate short upon the occurrence of a specified condition
Freely transferable, subject to RAP |
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Term
Define: Future Interests: Executory Interests
2 types |
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Definition
Shifting: divests the interest of the grantee by cutting short a prior estate created in the same conveyance.
Springing: diverts the interest of the grantor of fills a gap in possession in which the estate reverts to the grantor. |
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Term
Define: Future Interests: Executory Interests
Shifting or Springing?
Example: A conveys “to B and his heirs, but if C returns from Paris, then to C.” |
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Definition
Shifting
Shifting: This conveyance creates a fee simple subject to an executory limitation in B and a shifting executory interest in C |
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Term
Define: Future Interests: Executory Interests
Shifting or Springing?
A conveys “to B for life, and one year after B’s death to C and his heirs.” |
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Definition
Springing
This conveyance creates a life estate in B, a one-year reversion in A (in fee simple subject to an executory limitation), and a springing executory interest in C. |
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Term
Define: Future Interests: Rule Against Perpetuities
What interests are NOT subject to RAP |
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Definition
Present Interests
Vested Interests (except for class gifts)
Any interest retained in the grantor (reversions, possibility of reverter, right of entry) |
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Term
What are the four types of landlord-tenant estates? |
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Definition
Tenancy for Years
Tenancy at Will
Periodic Tenancy
Tenancy at sufferance |
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Term
What is a tenancy for years? |
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Definition
An estate measured by a fixed and ascertainable amount of time.
Creation: SoF applies to tenancy for years that is longer than one year
Termination: Automatically upon the expiration of the term; no notice required |
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Term
What is a periodic tenancy? |
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Definition
Repetitive, ongoing estate measured by a set period of time (e.g., month-to-month lease) but with no predetermined termination date
Term: automatically renews at the end of each period until one party gives a valid termination notice. SoF does not apply.
Creation: express agreement, implication, or operation of law
Termination: notice is required, due to automatica renewal.
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Term
What is a tenancy at will? |
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Definition
Term: A tenancy at will is a leasehold estate that does not have a specific term and continues until terminated by either the landlord or the tenant.
Creation: express agreement and implication. |
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Term
What is a tenancy at sufferance? |
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Definition
Holdover Tenant -- the period of time after the expiration of a lease during which the tenant remains on the premises.
Created by the actions of the tenant alone.
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Term
What are the three types of waste? |
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Definition
Affirmative: voluntary waste
Permissive: negligence - Tenant has a duty to handle wear and tear.
Ameliorative: improvements |
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Term
Landlord/Tenant: What is the difference between assignment v. sublease? |
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Definition
Assignment = complete transfer of tenant's remaining lease term, anything less = sublease
Assignee tenants have privity of estate with the landlord
Sublessee is not in privity with the landlord, not liable for rent or other leased covenants, but they are liable to the lessee. |
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Term
Does the original tenant's privity of estate terminate upon a successful assignment by the tenant to an assignee? |
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Definition
YES, but not on sublease.
However, absent an agreement by the landlord releasing the original tenant from liability (i.e., a novation), the original tenant remains liable to the landlord for the entire duration of the lease. |
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Term
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Definition
The tenant's knowledge of a new landlord.
Payment of rent to a new landlord = attornment. |
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Term
What are the statute of frauds requirements in a land sale contract? |
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Definition
i. be in writing
ii. be signed by the party to be charged; and
iii. contact all of the essential terms (i.e., parties, property description, terms of price and payment).
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Term
What is a deed and what are the requirements? |
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Definition
Document that conveys a real property interest
Must be in writing, signed by the grantor, contain a description of the property, and identify the grantee; in addition the deed must contain words of transfer. |
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Term
What is marketable title?
When is it given?
What about installment land K? |
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Definition
Title free from defects, part of a land sale contract, regardless of type of deed is created (absent contrary language).
Seller does not need to deliver until the closing
Not until delivery occurs |
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Term
What are defects in title rendering title unmarketable? |
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Definition
i. Title acquired by adverse possession that has not been quieted (i.e., supported by judicial decree)
ii. Future interests wherein the holders of such interests have not agreed to the transfer;
iii. Private encumbrance (e.g., mortgage, covenant, option, or easement);
iv. Violation of a zoning ordinance; or
v. Significant physical defect (an encroachment on the land that is uncurable). |
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Term
What are the remedies for unmarketable title? |
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Definition
- A buyer may rescind and recover out-of-pocket costs and earnest money payments,
- Sue for breach
- Bring action for specific performance with an abatement of the purchase price
Cannot obtain remedy until the date of closing. |
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Term
What is the implied warranty of fitness or suitability?
(New Homes) |
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Definition
Replaces caveat emptor ("let the buyer beware).
Warranty of quality, workmanlike construction, performance, habitability, implied in a land sales contract for the purchase of a newly constructed residence.
Can be brought (usually) between 1-10 years
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Term
What damages are available for breach? |
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Definition
Damages: both buyer and seller can recover expectation damages based on the difference between the K price and the market value on the date of performance\ |
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Term
What is the doctrine of equitable conversion? |
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Definition
Under the doctrine, although the seller retains legal title to real property during the pendency of the land sales contract, equitable title passes to the buyer upon entering the K.
Seller effectively holds the property in trust for the buyer, and he has a duty to keep up the property.
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Term
Who (mostly) bears the risk of loss between a buyer and seller during the time between the execution of the K and the closing date? |
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Definition
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Term
What is the effect of the Buyer's or Seller's death prior to the performance date of the contract?
Whose interest is treated as personal property, and whose is treated as real property? |
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Definition
Seller: personal property
Buyer: real property |
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Term
What are the elements for adverse possession?
CHEAPO |
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Definition
Possession must be
continuous,
actual,
open and notorious,
hostile, and
exclusive. |
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Term
Can an adverse possessor tack on his predecessor's time in order to satisfy the statutory period? |
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Definition
Yes, as long as there is privity between successive possessors |
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Term
If a true owner is afflicted with a disability (e.g., insanity, infancy, imprisonment) does the statute of limitations run at the inception of the adverse possession? |
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Definition
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Term
If a grantor keeps a deed, and intent to transfer is not presumed, how can we establish intent? |
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Definition
Parole evidence is admissible to establish intent to make a present transfer of the property interest. |
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Term
RE: Notice Statutes: Does a bona fide purchaser need to record in order to prevail over a prior interest in a notice jurisdiction? |
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Definition
NO, but he must record to prevail against a subsequent purchaser |
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Term
Are grantees who acquire title by property by gift, or devise protected by the recording act against prior claims? |
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Definition
NO, even those who fail to record their claims to the same property. |
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Term
What rule protects grantees whose grantor is protected by the recording act? |
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Definition
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Term
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Definition
If reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and she cannot prevail against those prior claims. |
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Term
RE: Constructive Notice: What is a tract index? |
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Definition
All properties in a tract index system are listed by location on a separate page that includes all conveyances and encumbrances |
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Term
RE: Constructive Notice: What is a grantor-grantee index? |
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Definition
Each yearly index is usually alphabetized by the last names of the grantors and grantees.
Verification of the chain of title
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Term
First, O promises A in writing that O will use Blackacre only for residential purposes, and the parties intend that this burden will run with the land. A does not record the promise. O then sells Blackacre in fee simple absolute to B, who has no notice of O’s earlier promise to A. Next, B records. Then, A records the promise. B then sells a fee simple absolute estate in Blackacre to C, who has actual knowledge of O’s promise to A. C uses Blackacre for nonresidential purposes. A sues C to enforce O’s promise to A, seeking damages and an injunction. What is the result under Race statute? Under Notice Statute? |
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Definition
i) Under a race statute, C wins, even though C records after A. In this situation, A’s recording is outside C’s chain of title, so it does not constitute “winning the race” for the purposes of a race statute. Also, because B’s interest in Blackacre “wins” over A’s, and C relies on B’s title, C wins.
ii) Under a notice statute, C wins even though C had notice. The shelter doctrine shelters C by making B’s title marketable, because B was a good?faith purchaser. Therefore, B passes his title to C, and C takes B’s status as a good-faith purchaser.
iii) In a race-notice jurisdiction, C wins because the shelter doctrine applies. |
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Term
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Definition
A deed without a chain of title
When an instrument is recorded and indexed in the recording office, it may not be recorded in such a way as to give notice to subsequent purchasers (i.e., the deed may not be in the "chain of title"). |
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Term
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Definition
Title insurance protects owners or lenders against actual monetary loss due to such matters as title defects and lien problems. |
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Term
Does a recording act protect a subsequent taker for value from a property interest acquired by operation of law (adverse possession, prescriptive easement)? |
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Definition
NO, generally such ownership arises automatically upon the expiration of the statutory period. |
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Term
What six covenants does the grantor of a general warranty deed guarantee holding title to? |
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Definition
Present Covenants:
- Covenant of Seisin
- Covenant of Right to Convey
- Covenant Against Cncumbrances
Future Covenants:
- Quiet Enjoyment
- Warranty
- Further Assurances
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Term
What does the present covenant of seisin warrant? |
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Definition
That the grantor owns the land as it is described in the deed. |
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Term
What does the present covenant of right to convey guarantee? |
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Definition
That the grantor has the right to transfer title |
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Term
What does the present covenant against encumbers guarantee? |
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Definition
That the deed contains no undisclosed emcumberances |
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Term
What does the future covenant of warranty guarantee? |
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Definition
That the grantor will defend against a third party's claim for title. |
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Term
What does the future covenant for further assurances guarantee? |
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Definition
That the grantor will do whatever is necessary to perfect title should it turn out to be defective, though this is not recognized by all states. |
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Term
What is the after-acquired title doctrine? |
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Definition
When a person who purports to transfer real property that he does not own subsequently becomes the owner of that property, the doctrine provides that title to the property automatically vests in the transferee. |
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Term
Explain Special warranty deed |
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Definition
Special warranty deeds, contain the same covenants of title but only warrants against defects arising during the time the grantor has title. |
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Term
What is the difference between a quitclaim deed and a warranty deed? |
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Definition
Quitclaim deed provides no covenants of title.
Common Form: Tax Deed, which is used by government authorities when selling properties seized for nonpayment of taxes. |
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Term
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Definition
A devise of real property may fail (or be adeemed) because the testator no longer owns the property upon death (i.e., property was sold, destroyed, or given away before death).
Can only occur with a specific devise like real property, not general like money. |
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Term
Under common law, how can a devise of real property fail (lapse)?
Anti-lapse statute |
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Definition
The devise will lapse if the beneficiary under a will dies before the testator and no alternate beneficiary is named. |
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Term
What is the common law exoneration of liens doctrine? |
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Definition
If a testator makes a specific devise of real property that is subject to an encumbrance, such as a mortgage or a lien, then the devisee is entitled to have the land exonerated by payment of the encumbrance from the remained assets in the testator's estate. |
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Term
What are the requirements for a valid trust? |
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Definition
Settlor: creates the trust
Trustee: holds the legal title to the property
Beneficiary: holds equitable title
Intent
Valid Purpose
Res or property
Beneficiaries that are identifiable |
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Term
What is the doctrine of cy pres?
charitable trust |
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Definition
Redirects the trust to a similar charity or purpose if the charitable trust can no longer serve the purpose for which it was created. |
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Term
What are the forms of restraint on alienation? |
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Definition
Disabling restraint
Forfeiture Restraint
Promissory Restraint
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Term
What are prohibited restraints? |
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Definition
AN absolute restraint on alienation or a fee simple is void
Any restraint based on race, ethnicity, or religion is not enforceable |
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Term
What are permissible restraints? |
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Definition
Restraints limited in time and purpose may be valid
Right of first refusal: gives the holder of the right the opportunity to purchase the property interest if sold |
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Term
Lien Theory v. Title Theory
Majority and minority |
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Definition
Majority LIEN: The Mortgagor (borrower) is treated as the owner of real property, and the mortgagee (lender) is treated as the holder of a lien on that interest
Minority TITLE: Mortgagee treated as the owner of real property, possesses the right to regain ownership of the real property upon satisfaction of the obligation.
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Term
What is an installment land contract (i.e., contract for deed)? |
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Definition
Contract where the seller retains title until the buyer makes the final payment under an installment payment plan. |
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Term
What is a due on sale clause? |
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Definition
This clause provides that, upon the transfer of mortgaged property, the lender has the option to demand immediate payment of the full amount of the outstanding obligation, including interest, unless the lender given its written permission for the transfer. |
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Term
If the transferee buyer takes the title "subject to" an existing mortgage obligation, then is the transferee-buyer personally liable upon default? |
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Definition
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Term
If a deed is silent or ambiguous as to the transferee buyer's liability is the transferee-buyer considered to have taken the land subject to the mortgage obligation? |
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Definition
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Term
Are the promissory note, and the mortgage that serves as security for the note typically transferred together? |
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Definition
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Term
What is the effect of transferring the mortgage without the note? |
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Definition
Jurisdictions are split, the note is principal evidence of the debt, and many states treat a transfer of mortgage alone as void.
Some states treat the note as automatically transferring with the mortgage. |
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Term
What is the effect of transferring the note without the mortgage? |
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Definition
There is no separate written assignment of mortgage necessary. Therefore this is ok. It is assumed that the mortgage always follows the note. |
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Term
What is the intermediate title theory, re: pre-foreclosure rights |
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Definition
The mortgagor retains legal title until default, and, upon the mortgagor's default, it vests legal title in the mortgagee. |
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Term
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Definition
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Term
How are junior and senior interests determined?
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Definition
first in time, first in right |
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Term
Describe a purchase-money mortgage exception?
Purchase Money Mortage and priority?
Seller's purchase money mortgage and third parties?
Priority among third party purchasers?
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Definition
Mortgage used to finance the purchase of the mortgaged property and executed at the same time as sale
Priority over all earlier non-purchase money mortgages and liens whether or not recorded
A seller's purchase money mortgage has priority over those of third parties
The prior of third-party purchase money mortgages is determined chronologically, subject to any other application exception. |
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Term
What is a future advance mortgage?
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Definition
Mortgage given by a borrower in exchange for the right to receive money from the lender in the future.
Known as a line of credit. |
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Term
Explain after-acquired property? |
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Definition
Mortgagor may grant a mortgagee rights to property that the mortgagor
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Term
Are the rights of a senior interest holder generally affected by a foreclosure sale? |
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Definition
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Term
What is the effect on a junior interest holder of a mortgage that is being foreclosed on?
Notice requirement?
Equitable Marshaling of Assets? |
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Definition
Interests are generally destroyed.
Junior interest must be given notice of the foreclosure and made a party to the foreclosure action.
When a senior mortgage is foreclosed and the mortgage covers multiple properties, the holder of a junior mortgage on some but not all of these properties can petition the court to apply
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Term
How are the proceeds from a foreclosure sale applied?
(1,2,3,remainder) |
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Definition
First: costs associated with the sale
Second: balance and interest of the mortgage obligation being foreclosed
Third: the mortgage obligation to owed to any junior interest holders in the other of priority of their interests
Remainder: paid to debtor-mortgagor |
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Term
What defenses is a mortgage subject to? (re: enforceability, same as the underlying obligation secured by the mortgage)
MAD FIFI4
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Definition
Material Alteration
Duress
Fraud in Factum
Incapacity
Illegality
Infancy
Insolvency |
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Term
Re: Option K for real property: does the option K remove the ability of a grantor to revoke the option? |
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Definition
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Term
Re: Option K for real property: Can the holder of an option make an offer to the grantor of the option that otherwise would constitute a counteroffer without losing the the right to exercise the option?
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Definition
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Term
Re: Option K for real property: does the mailbox rule apply to these option ks?
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Definition
No, the holder's decision to exercise the option must be received by the grantor of the option within any time period specified in the K |
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Term
Re: Option K for real property: does RAP apply to an option or right of first refusal granted to a current leasehold tenant?
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Definition
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Term
Are the right of first refusal and option Ks an encumbrance that prevents the seller of property from providing unmarketable title? |
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Definition
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Term
Is physical transfer of a deed required?
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Definition
No, as this is not conclusive evidence of the grantor's intent. |
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Term
First, Owen sells Blackacre to Allen, but Allen does not record.
Second Owen then sells Blackacre to Barry, who has no notice of the earlier conveyance to Allen.
Next A records. T
Then, Barry records.
Barry sues Allen to quiet title in Blackacre.
What is the result? |
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Definition
Race Statute: The first in time to record prevails. Allen wins
Notice Statute: regardless of who records first, those in good faith purchase without notice prevail. Barry wins
Race-Notice Jx: Barry is unable to prove that he had both no notice and recorded first. Because Allen recorded first, Allen wins. |
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Term
First Owen sells an easement in Blackacre to Allen, but Allen does not record.
Second, Own sells Blackacre in fee simple absolute to Barry, who knows of the earlier conveyance to Allen.
Next Barry records.
Then, Allen records.
Barry sues Allen to quiet title to Blackacre.
What is the result? |
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Definition
Race Statute: Barry wins, and the easement is extinguished because Barry recorded first.
Notice Statute: Allen wins because Barry had notice of Allen's rights at the time of the purchase.
Race-Notice Jx: Allen prevails and can enforce the easement against Barry because Barry is unable t show that he both recorded first, and purchased without notice of Allen's prior claim. |
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Term
Describe: estoppel by deed (after-acquired title) |
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Definition
A grantor who conveys an interest to land by warranty deed before actually owning it is estopped from later denying the effectiveness of her deed.
Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee. |
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Term
What are the six general warranty deed guarantees for the six covenants of title (past & present)? |
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Definition
Present Covenants:
Covenant of seisin: grantor owns land described in deed
Covenant of the right to convey: grantor has right to transfer
Covenant against encumbrances: deed contains no undisclosed encumbrances
Future Covenants:
Quiet Enjoyment: Grantee's possession will not be interfered with by 3rd party's claim for title
Warranty Guarantees: guarantees that the grantor will defend against third party claims
Warranty of Further Assurances: Grantor will do whatever is necessary to perfect title should it turn out to be defective
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Term
Recovery of damages: What can a buyer recover for the breach of covenant against encumbrances? |
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Definition
The lesser of the difference in value between title with and without the defect, or the cost of removing the encumbramce |
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Term
Recovery of damages: What can a buyer recover for the breach of covenants of quiet enjoyment or warrant? |
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Definition
Grantor must refuse to defend the title
Recovery = lesser of the purchase price or the cost of defending the defective title |
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Term
Recovery of damages: What can a buyer recover for the breach of covenants of seisin? |
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Definition
Right to convey, or further assurances is the lesser of the purchase price or the cost of perfecting title. |
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Term
What does a special warranty deed contain? |
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Definition
The same covenants of title but it only warrants against defects arising during the time the grantor has title. |
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Term
What does a quitclaim deed promise?
What are common forms of quitclaim deed? |
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Definition
Unlike a warranty deed, a quitclaim deed promises no covenants of title.
Tax Deed
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Term
Does a grantee in a quitclaim deed (or a grant deed or warranty deed) receive better, worse or the same title as the grantor? |
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Definition
No better title than what the grantor possessed. |
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Term
What type of devise is the ONLY kind that ademption may occur?
general or specific? |
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Definition
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Term
By will, Alice devises her car to Barry, Blackacre to Carl, and the remainder of her property (the residuary estate) to Diane. Alice does not name any alternate beneficiaries.
If Carl dies before Alice and the devise does not qualify for protection under the anti-lapse statute, what happens to Alice's estate? |
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Definition
Blackacre becomes part of the residuary estate and passes to Diane, along with all of Alice's property other than the car which does to Barry.
If Carl is related to Alice such that the anti-lapse suit applies, then Blackacre passes to Carl's descendants |
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Term
Under the common-law exoneration of liens doctrine, if a testator makes a specific devise of real property that is subject to an encumbrance (like a mortgage lien) then what is the devisee entitled to?
What about in states without the doctrine? |
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Definition
To have the land "exonerated" by payment of the encumbrance from the remaining assets in the testator's estate
In states where this doctrine is abolished: the property passes subject to the encumbrance unless the will specifically require payment of the encumbrance. |
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Term
What happens when a devise is ABATED or reduced? |
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Definition
The assets of the estate are insufficient to pay all debts and satisfy all devises |
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Term
What is the order of abatement? |
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Definition
i. Property not disposed of by will
ii. Residuary devises;
iii. General devises; and
iv. Specific devises |
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Term
What is a specific devise?
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Definition
A devise of property that an be distinguished with reasonable accuracy from other property
" I give my diamond ring to Alice" |
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Term
What is a general devise? |
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Definition
Devise of personal property that testator intends to be satisfied from the general assets of his estate
"I give $100 to Alice" |
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Term
What is a demonstrative devise? |
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Definition
General devise to be paid from a particular source
"I give $100 from my first federal bank account to Alice" |
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Term
Pro Rata Abatement
In her will, a testator made a general devise of $10,000 to her daughter and a general devise of $20,000 to her son. At the time of her death, the testator's estate consisted of $21,000 in case.
What is the execution? |
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Definition
The devises exceed the estate by $9000 ([$10,000 + $20,000] - $21,000).
The daughter's devise is reduced by $3000 ($9000 x [$10,000/$30,000]) to $7000 ($10,000-$3000)
The son's devise is reduced by $6000 ($9000 x [$20,000/$30,000]) to $14,000 ($20,000-$6000) |
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Term
What is a forfeiture restraint?
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Definition
Effects the loss of property if the interest owner attempts to transfer his interest
Can be valid on Life estate |
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Term
What is a promissory restraint? |
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Definition
Promise by the property interest holder not to transfer the property interest
Enforceable by an injunction against the transferor/promisor to prevent the transfer or by a suit seeking damages from the transferor/promisor for having violated the promise
Can be valid on life estate |
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Term
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Definition
Easements appurtenant: tied to the land, benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate
Easement in gross: personal to the holder, granted to a particular person (oppose to the land)
Affirmative Easements: most easements are affirmative, giving the holder the right to make use of another's property
Negative Easements: Restrictive covenant, prevents another from doing something, or using the land in a particular way in order to benefit the holder of the easement. |
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Term
Express Easements: Creation: Grant, Reservation? |
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Definition
Grant: arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds
Reservation: Grantor conveys land but reserves an easement right in that land for his own use and benefit (not a third party) |
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Term
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Definition
the landlocked property, virtually useless without the easement.
Both dominant and serviant interests would have had to be under common ownership in the past.
unlike easement by implication: Need not be a showing of prior use |
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Term
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Definition
If an easement was previously used on the servient estate by an earlier owner, then the court may find that the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land's use and enjoyment.
Unlike Easement by necessity: which requires strict necessity. |
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Term
Easement by Perscription
COAH |
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Definition
Similar to adverse possession.
Continuous, actual, open, and hostile use for a specific period
UNLIKE adverse possession, the use need not be exclusive (such as a public easement to access a beach)
Scope of an easement is limited to the nature and extent of the adverse |
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Term
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Definition
Good-faith, reasonable, detrimental reliance on permission by a serviant estate holder may create an easement by estoppel. |
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Term
Does an easement appurtenant transfer automatically with the land with which it relates? |
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Definition
yes, both benefit and burden |
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Term
How are easements created?
PING |
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Definition
Prescription:
Implication: if division, implied from existing use if apparent and reasonably necessary to dominant land's use/enjoyment
Necessity: division creates landlock
Grant: If greater than one year, must be in writing |
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Term
How are easements terminated?
END CRAMP
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Definition
Estoppel: servient landlord materially changes position in reasonable reliance that easement won't be enforced
Necessity Destruction of servient land:
Condemnation:
Release: (in writing)
Abandonment: physical action by holding expressing intent to never use again
Merger: if separated again later doesnt automatically revive
Perscription: servient owner interferes |
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Term
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Definition
Privilege to enter land for specific purpose
informal and freely revocable, unless estoppel -- licensee interested substantial labor in reasonable reliance on continuation |
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Term
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Definition
Permission to enter land and take soil, same rules as easements |
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Term
What is a profit a pendre? |
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Definition
nonpossessory right to enter another's land to remove specific natural resources (such as oil, gas, minerals, timber, or game. |
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Term
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Definition
contractual promise to do or not do something on land |
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Term
What are the requirements for a covenant's burdens to run with the land?
WITHHVN |
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Definition
Writing (by original parties)
Intent (by original parties to run)
Touch/Concern
Horizontal and Vertical Privity
Notice (Actual, Record, or Inquiry)
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Term
What are the requirements for a covenant's benefits to run with the land?
WITV |
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Definition
Writing;
Intent;
Touch/Concern;
Vertical Privity |
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Term
Wehn do negative covenants run with the land? |
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Definition
if they restrict the owner's use or enjoyment of the land (e.g., a covenant not to use the property for vacation rentals). |
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Term
When do affirmative covenants run with the land? |
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Definition
If they require the owner to do something related to use and enjoyment of the land (e.g., a covenant to maintain a fence.
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Term
Is a subsequent purchaser without notice of a burdening covenant bound by it? |
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Definition
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Term
Does the requirement for a benefit or a burden to run with the land require horizontal privity? |
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Definition
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Term
What is horizontal privity? |
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Definition
A shared property interest apart from the covenant itself.
landlord & tenant
grantor & grantee
debtor & creditor |
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Term
What are equitable servitude? |
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Definition
Covenants about land use that are enforced at equity by injunction |
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Term
What are the requirements for the creation of an equitable servitude?
WITNES |
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Definition
Writing
Intent
Touch/Concern
Notice
Equitable Servitude |
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Term
What is the majority rule for an implied reciprocal servitude? (planned subdivision)
What are defenses? |
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Definition
Requirements: General Scheme by subdivider when sale began and notice
Defenses: Most USED changed circumstances. Sometimes latches, and unclean hands |
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Term
What is the riparian rights doctrine? |
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Definition
Water belongs to landowners (riparians) bordering water courses
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Term
What is the prior appropriation doctrine? |
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Definition
Water initially belongs to the state
Right to divert and make beneficial use can be acquired by individual
Rights determined by priority of beneficial use
First in time first in right generally. |
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Term
What are the requirements for a zoning variance? |
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Definition
1. undue hardship
2. variance wont decrease neighboring property value
Determined via administrative action before a zoning board. |
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Term
What is the lateral support doctrine? |
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Definition
A landowner has a right to lateral support from adjoining land.
Adjoining land in natural state: Strict Liability
Can show land with would have collapsed in natural state: Strict Liability
Adjoining Land has been improved: negligence.
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Term
Enforceability of Liquidated damages clause |
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Definition
The touchstone for enforceability is that the amount is reasonable. |
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Term
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Definition
Created through good-faith, reasonable, detrimental reliance on permission by a servient estate holder |
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Term
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Definition
Quasi-easement exists when the original owner owned both apartments in the duplex, because of his use of Unit A to access Unit B was continuous, apparent, and reasonably necessary to the use and enjoyment of Unit B.
Scope is determined by prior use, and becomes implied when the units are sold. |
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Term
No Cat restriction in condos, is that ok? |
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Definition
Restrictions contained in the recorded declaration of a common interest ownership community are enforceable unless illegal, unconstitutional or against public policy. |
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