Term
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Definition
A fee simple that are capable of lasting forever or being terminated early.
Smaller estate than the fee simple...not quite "the whole wheel of cheese." |
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Term
| Fee simple determinable is... |
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Definition
| a fee simple, limited by specific DURATIONAL language. |
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Term
| Examples of durational language.. |
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Definition
so long as
while
during
until |
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Term
| Fee simple subject to condition subsequent... |
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Definition
Fee simple limited by specific conditional language.
Grantor must exercise a right in order to take possession. |
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Term
| examples of conditional language |
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Definition
but if
provided that
on the condition that |
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Term
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Definition
future interest held by a grantor following a fee simple determinable.
vests automatically after durational period ends. |
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Term
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Definition
Future interest held by a grantor, following a fee simple subject to condition subjection.
Does not vest automatically; right must be exercised. |
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Term
| fee simple subject to executory interest |
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Definition
fee simple that will end upon the happening of an event, and the future interest will vest in a 3rd party.
Future interest is held by a grantee, not the grantor. |
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Term
| What's an executory interest |
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Definition
| It's an interest that will cut short/terminate an earlier interest (it will "divest" the prior interest). |
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Term
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Definition
present estate, limited by a life.
Life estate ends when measuring life dies.
It is transferable, but it still reverts (or ...remainders...) when the measuring life ends. |
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Term
| life estate pur autre vie: |
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Definition
present estate, limited by a 3rd party's life.
(Blackacre to X, for Y's life) |
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Term
| Magic words to create a life estate: |
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Definition
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Term
waste, generally:
3 types. |
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Definition
comes into play when more than one party has an interest in a piece of real property.
Affirmative
permissive
Ameliorative |
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Term
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Definition
| waste caused by voluntary conduct, resulting in decrease in value. |
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Term
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Definition
| waste caused by neglect, resulting in decrease in value. |
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Term
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Definition
Person in possession changes the use of the property.
Can actually increase the property's value. |
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Term
| Concurrent estate, generally: |
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Definition
| multiple people with simultaneous ownership or possession in one piece of property. |
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Term
| Basic rule of concurrent ownership: |
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Definition
Each concurrent owner has a right to possess the whole property.
...doesn't make much sense in reality, but that's the rule. |
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Term
| 3 kinds of concurrent ownership: |
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Definition
tenancy in common
joint tenancy
tenancy by the entirety |
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Term
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Definition
default concurrent interest.
Any conveyance to more than one person is presumed to be TiC.
Each owner has separate, but undivided interest. This means they have separate shares, but the property is not divided.
no right of survivorship; each co-tenant can transfer their interest freely, even at death. |
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Term
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Definition
| Most important thing: right of survivorship, which means that surviving joint tenant(s) automatically take deceased tenant's share. |
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Term
| How do you create a joint tenancy: |
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Definition
1. Grantor makes clear expression of intent PLUS...
2. Survivorship language (needs to say something like, "as joint tenants," or "with right of survivorship."
4 Unities required.
1. possession (equal right to possess whole property)
2. unity of interest (equal shares of same type of interest)
3. unity of time (must receive interests at exact same time)
4. unity of title (must receive interest in same instrument of title). |
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Term
| Severing the unities in a joint tenancy through transfer of interest: |
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Definition
transfer during life will destroy right of survivorship, and create a TiC.
If only one tenant transfers interest and 2 or more remain, the remaining tenants retain a joint tenancy as to their shares. (A, B, C have joint tenancy. A sells their 1/3 interest to D. Now D is a TiC with B and C, but B and C have joint tenancy as to the remaining 2/3). |
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Term
| Severing the unities in a joint tenancy through granting a mortgage: |
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Definition
Lien theory: (Majority) Mortgage is treated as a lien, and does not destroy Joint Tenancy.
Title theory: (minority), destroys joint tenancy, creates TiC. |
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Term
|
Definition
Like joint tenancy, but between spouses.
4 unities+marriage=5 unities.
5th unity is called "unity of person".
One tenant can only transfer their interest with permission of the spouse.
Magic words: "Tenancy by entirety," AND "right of survivorship."
If grant is ambiguous, then courts will default to joint tenancy if there is survivorship language, or tenancy in common if no survivorship language. |
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Term
| Who has right to possession in concurrent interest? |
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Definition
| Each tenant has right to possess the whole, regardless of proportion of share. |
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Term
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Definition
This is when a co-tenant in possession denies another co-tenant of right to possess.
ousted co-tenant can get an injunction and possibly receive damages. |
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Term
| Who pays rent and operating expenses? |
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Definition
Rent received from a 3rd party is divided in proportion of their shares amongst co-tenants. (owner of 2/3 interest gets 66%, owner of 1/4 interest gets 25%, etc.).
Operating expenses are also divided pursuant to ownership interest. Co-tenant can sue other co-tenants for contribution if they are not paying.
NO RIGHT TO REIMBURSE FOR REPAIRS, however the co-tenant can get a credit in a partition action.
NO RIGHT TO REIMBURSE FOR IMPROVEMENT: but, as above, can get credit in partition |
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Term
|
Definition
equitable remedy, available to all holders of TiC or Joint Tenancy.
Unilateral right: any tenant, acting on their own, can bring partition action. (Tenants by entirety can't bring oen!) |
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Term
|
Definition
Partition in Kind
Partition by sale |
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Term
| What is a partition in kind? |
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Definition
| Court physically divides property up. ("You are entitled to this part of the property, you are entitled to this part.") |
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Term
| What is a partition by sale? |
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Definition
| If physical partition is not practical or fair, then court will sell the property and divide the proceeds according to ownership interest. |
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Term
| How can co-tenants agree not to partition? |
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Definition
| Agreement must be clear, and time limitation must be reasonable (we do not like indefinite agreements not to partition). |
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Term
Executory interest:
2 kinds: |
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Definition
future interest in a third property, that divests prior vested interest.
springing exec interest
shifting exec interest |
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Term
| springing executory interest |
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Definition
divests grantor.
Includes situations where there is a temporary reversion to grantor (O conveys PROP to X for life, then to Y one year after X dies. PROP reverts to O for a year before Y gets it.) |
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Term
| shifting executory interest |
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Definition
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Term
|
Definition
follows a life estate; canNOT follow a fee simple.
can be vested or contingent. |
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Term
| When is a remainder vested: |
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Definition
when it's given to an ascertainable grantee (someone we can identify).
Or when it's not subject to a condition precedent. |
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Term
| Class Gift: Vested subject to open. |
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Definition
Vested remainder in a class, and:
full class membership is open.
Someone has to have been ascertained (otherwise it is is contingent, not vested)
...but the class cannot have closed yet.
RAP applies to vested subject to open. |
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Term
|
Definition
if the grant to a class doesn't have an express closing date, the rule of convenience closes the class when any member of the class becomes to entitled to immediate possession.
This is done to avoid RAP. |
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Term
| Doctrine of Worthier Title: |
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Definition
Rule that prevents against remainders in the grantor's heirs.
Creates presumption in a reversion to the grantor, rather than a remainder.
(ex: O conveys to A for life, then to my heirs. Rather than O's heirs getting a remainder, there will be a presumption that O retained a reversion. Same result is effectuated, just with "worthier title.") |
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Term
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Definition
Prevents against remainder in grantee's heirs ("...to A for life, then to A's heirs.")
Just creates a fee simple instead through "merger doctrine." |
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Term
| Method of answering a RAP problem |
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Definition
When what who.
When: Identifying when the interests are created--either inter vivos or by devise.
What: RAP applies to contingent remainders and executory interests (and also vested remainders subject to open if remainder not closed by rule of convenience.
Who: identifying relevant lives (someone who affects vesting) and validating lives (most important person!! this is the person who will tell us whether or not the interest vests within 21 years.) |
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Term
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Definition
This is what the RAP is measured by.
Must be alive when interests were created.
(when question!)
If you can't find a validating life, then the interest is no good. |
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Term
| When something violates RAP, what happens? |
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Definition
| It's as if the violating interest never happened. You can just cross it out, literally. |
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Term
| If you can come up with a scenario where the interest doesn't vest more than 21 years after a validating life... |
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Definition
| then RAP is violated (....unless the jurisdiction uses "wait and see...") |
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Term
| How does RAP interact with Class Gifts? |
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Definition
We're talking about a vested remainder subject to open.
Special rule applies: "Bad as to one, bad as to all."
If the gift to any member of the class is void under RAP, then the gift is void as to all members of the class.
Alternatively, the "Rule of Convenience" can save a class gift from being void under RAP. RoConvenience closes the class as soon as a member of the class is entitled to immediate possession. |
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Term
| Two exceptions to the class gift rule! |
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Definition
Transfers of a specific dollar amount to each class member.
Transfers to a subclass that vests at specific time. |
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Term
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Definition
Charitable giving.
Does not apply to an option held by a current tenant to purchase a fee interest in the leasehold property.
Wait and see. Many jurisdictions will wait and see if an interest subject to RAP vests within perpetuities period. |
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Term
| Lease creates 2 kind of interests: |
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Definition
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Term
| 4 types of estates that govern landlord-tenant relationship. |
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Definition
tenancy for years.
periodic tenancy.
tenancy at will.
tenancy at sufferance. |
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Term
Tenancy for years:
what is it.
how do you create it.
how do you terminate it. |
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Definition
Can be any fixed and ascertainable amount of time.
Need and agreement between landlord and tenant, showing intent to create term of years.
If it's for over a year, requires writing.
Terminates automatically at expiration of the term.
Terminating before end of term: surrender it, or breach it (by not paying rent, for example). |
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Term
Periodic Tenancy:
what is it
created by....
terminated by... |
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Definition
Repetitive and ongoing tenancy, for a set period of time (think month-to-month, or year to year).
Renews automatically until someone gives notice of termination.
Created by intent to create it, or by implication (parties act in a manner that shows periodic tenancy, such as paying rent monthly)
Proper notice of termination must be given before start of last period. |
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Term
|
Definition
May be terminated by either landlord or tenant at any time for any reason, without notice (but with reasonable amount of time).
created by express agreement or implication. |
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Term
| If landlord is given right to terminate tenancy at will, what happens |
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Definition
we give tenant the same right!!
NOT TRUE in the converse; if tenant gets right to terminate at will, landlord doesn't necessarily get it. |
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Term
|
Definition
temporary tenancy.
Lasts until landlord evicts holdover tenant or re-rents.
Terms of prior lease govern.
Created by actions of tenant alone; staying there when they shouldn't be there. |
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Term
| Tenant has two basic duties |
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Definition
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Term
| 3 situations where duty to pay rent is suspended: |
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Definition
Premises are destroyed (so long as tenant didn't destroy the premises)
Landlord completely or partially evicts the tenant.
Landlord materially breaches the lease (interested in two covenants: quiet enjoyment, and habitability). |
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Term
| Implied covenant of quiet enjoyment |
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Definition
Tenant can withhold rent if landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes.
Tenant has to be constructively evicted. |
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Term
| 4 elements of constructive eviction: |
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Definition
1. premises are unusable. (this is really the breach of implied covenant of quiet enjoyment)
2. notifies landlord.
3. landlord fails to correct problem
4. tenant vacates premises after reasonable time. |
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Term
| Implied warranty of habitability: |
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Definition
Landlord has obligation to maintain the property such taht it is suitable for residential use.
We are concerned with conditions that threaten tenant health and safety. |
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Term
| Tenant has three responses to breach of implied warranty of habitability: |
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Definition
Refuse to pay rent. (must notify and give an opportunity to fix problem)
Remedy the defect themselves and offset costs against the rent.
Defend against eviction. |
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Term
| What is Tenant's Duty to avoid waste? |
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Definition
C/L rule.
Tenant has a duty not to commit affirmative or permissive waste.
Normal wear and tear doesn't count. Waste is bigger injury.
Tenant may make improvements (ameliorative waste).
Tenant must notify Landlord of needed repairs.
Landlord does not have to repair damage caused by tenant.
Commercial lease: duty to repair can be placed on tenant. |
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Term
| Does landlord have duty to mitigate damages? |
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Definition
Majority: Yes, landlord must make reasonable efforts to re-rent property. If landlord doesn't try to re-rent, tenant is off the hook for rent.
Landlord does not have to accept subpar tenants in mitigation.
Landlord can seek damages from tenant if subsequent tenant pays less rent.
Minority view: no duty to mitigate. |
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Term
| Landlord's two options with holdover tenant: |
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Definition
Evict.
Continue relationship by accepting rent. (treated as periodic tenancy) (can increase rent if landlord informed tenant of the increase prior to expiration of old lease). |
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Term
| Duty to Deliver Possession: majority? minority? |
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Definition
Majority: Landlord must deliver actual possession.
Minority: Landlord must deliver legal possession (right to enter). |
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Term
What must landlord control, in regards to quiet enjoyment?
What don't they control? |
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Definition
Common Areas.
Nuisance-like behavior of other tenants.
They don't control: off premises actions. |
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Term
What is tenant's duty, in a tort context?
to whom do they owe it? |
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Definition
| Reasonable care: invitees, licensees, and foreseeable trespassers. |
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Term
| Landlord's liability to invitees, licensees, and foreseeable trespassers? |
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Definition
Responsible in negligence for latent defects.
...for faulty defects.
...for injuries in common areas resulting from negligence. |
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Term
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Definition
| complete transfer of tenant's remaining term |
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Term
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Definition
| transfer of something less than tenant's remaining term. |
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Term
| Who is on the hook for rent in an assignment? |
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Definition
Landlord can collect rent from tenant or subsequent tenant.
Privity of contract with tenant.
Privity of estate with subsequent tenant. |
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Term
| Who is on the hook for rent in a sublease? |
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Definition
Landlord can collect from only the tenant.
Privity of contract and estate with tenant.
Tenant is in privity of contract and estate with subsequent tenant, and can pursue them if they breach. |
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Term
When can landlord deny permission to transfer lease under the majority rule?
under the minority rule? |
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Definition
Majority: Only for a commercially reasonable reason.
Minority: At landlord's discretion. |
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Term
| Does landlord need tenant's permission to transfer interest? |
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Definition
| No. Terms of lease still govern relationship. |
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Term
| Fair housing act focuses on.... |
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Definition
| Multi-family residential housing. |
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Term
| Fair housing act prohibits discrimination based on... |
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Definition
race, color, religion, national origin, sex, disability, and familial status.
Doesn't include sexual orientation. |
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Term
| Fair housing act prohibits what acts? |
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Definition
Refusing to rent
requiring different rents
falsely denying that a unit is available
providing different services to facilities
stating a discriminatory preference in an advertisement.
Has to be causal link between prohibited behavior and protected basis. |
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Term
|
Definition
allows person in unlawful possession to acquire good title (we're talking about a trespasser).
Brand new title, by operation of law. |
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Term
| 4 elements of adverse possession: |
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Definition
Continuous for statutory period.
Open and notorious
Hostile
Exclusive. |
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Term
| What does continuous mean, for purposes of adverse possession? |
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Definition
Entry--middle phase--end phase.
Entry is when the clock starts to run, end is when statutory period runs.
Continuous is not literal: can obviously leave the property, and seasonal or infrequent use may suffice if consistent with type of property being possessed. |
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Term
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Definition
| An adverse possessor can tack on her time with her predecessor. But they must be in privity! Basically means there has to be some exchange. |
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Term
| What does open and notorious mean, for AP purposes? |
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Definition
Use must be such that it would put a reasonable person on notice of the adverse use.
Have to be using the property like a true owner, basically. |
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Term
| Hostile means _____ in AP. |
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Definition
Means adverse to owner's interest.
In minority jurisdictions, some require that the AP'er think the land is theirs. Some require that they know they land is not theirs.
Majority just requires that it be adverse to the true owner. |
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Term
| Exclusive requirement of AP: |
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Definition
Cannot share with the true owner.
Conversely, two Adverse Possessors can acquire title together as tenants in common. |
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Term
| Real estate transactions have two stages: |
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Definition
| contract stage, and deed stage. |
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Term
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Definition
| liability must be based on contract provision |
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Term
|
Definition
| liability must be based on a deed warranty. |
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Term
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Definition
Covenants under the contract are merged into the deed and therefore can't be enforced unless the covenant is also in the deed.
Think of merger as a "capture." |
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Term
| Are land sale contracts subject to the statute of frauds? |
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Definition
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Term
| 3 parts to a landsale contract to satisfy SoF: |
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Definition
Must be in writing.
Must be signed by the party to be charged; and
must include the essential terms |
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Term
| What are essential terms for SoF in a land sale? |
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Definition
Parties
Description of property
Cost and finance |
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Term
| 2 main exceptions to the statute of frauds for Land Sales: |
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Definition
part performance doctrine.
detrimental reliance exception |
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Term
| Partial performance of an oral land sale... |
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Definition
partial performance will serve as evidence that there was a contract.
payment of all or part of the purchase price.
Possession by the purchaser.
Improvements by the purchaser. |
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Term
| Detrimental reliance on an oral land sale... |
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Definition
| applies where party has reasonably relies on the contract, and would suffer hardship if the contract was not enforced. |
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Term
|
Definition
Every land sale contract includes an implied covenant of marketable title.
Marketable title is title free from an unreasonable risk of litigation.
Defect in title must be cured or fixed before closing. |
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Term
| Implied warrant of fitness or suitability, applies to... |
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Definition
defects in new construction.
In most jurisdictions, both the initial homeowner-purchaser and subsequent purchasers may recover damages. In other jurisdictions, only the original buyer can enforce this warranty |
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Term
| Duty to disclose defects: |
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Definition
Most jx's impose duty on the seller to disclose to the buyer all known, physical, material defects.
primarily concerned with latent defects.
materiality means: affects value of home or health and safety of occupants.
General disclaimers will not satisfy seller's duty to disclose. |
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Term
| Seller's remedies on breach by buyer |
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Definition
Damages (difference between contract price and market value on the date of the breach)
recision (seller sells property to someone else)
specific performance |
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Term
| Buyer's remedies on breach by seller |
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Definition
Damages (contract price vs. market value at breach)
Seller breaches in good faith? only out-of-pocket recovery.
Specific performance |
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Term
| Majority rule for doctrine of equitable conversion and risk of loss. |
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Definition
Majority rule: buyer holds equitable title during period between the execution of the contract, and the closing and delivery of the deed.
Buyer has risk of loss for anything that happens in that period! |
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Term
| Minority fule for doctrine of equitable conversion and risk of loss: |
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Definition
Seller has equitable title during time between execution of contract and delivery of deed.
Means seller bears risk of loss. |
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Term
| 4 ways to transfer property, generally. |
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Definition
1. Sale
2. Gift
3. Devise
4. Intestate Succession |
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Term
| Ownership interests in land are divided in time into two groups: |
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Definition
Present Interests.
Future Interests. |
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Term
| Characteristics of the Fee Simple Absolute. |
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Definition
Largest possessory estate.
Capable of lasting forever.
Inheritable. |
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Term
| What words typically create a Fee Simple: |
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Definition
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Term
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Definition
| Security device used to secure repayment of a debt. |
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Term
|
Definition
note: borrower is promising to repay.
mortgage itself: instrument that creates security interest |
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Term
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Definition
|
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Term
|
Definition
|
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Term
|
Definition
| person takes out a loan for the purpose of buying a piece of property. |
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Term
|
Definition
a line of credit used for equity, construction, business, and commercial loans.
often referred to as a second mortgage. |
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Term
|
Definition
majority!
Mortgage is treated as a lein that does not sever a joint tenancy. (lien state) |
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Term
|
Definition
| Minority! Holds that a mortgage severs a joint tenancy, and converts it into a tenancy in common. |
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Term
| 2 alternatives to mortgages: |
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Definition
deed of trust: operates like a mortgage but uses a trustee.
installment land contract: seller finances the purchase. |
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Term
|
Definition
Common law right by the borrower to reclaim title and prevent foreclosure upon full payment of the debt.
Borrower must exercise this right any time before the foreclosure. |
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Term
|
Definition
Allows redemption even after the foreclosure.
Allows the borrower/mortgagor to nullify the foreclosure.
Ends purchaser's title and restores title to the borrower/mortgagor |
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Term
| 2 types of transfer of mortgage: |
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Definition
1. Buyer can assume the mortgage. Both original debtor and second buyer are responsible (original mortgagor is not off the hook).
2. Buyer can buy the property subject to the existing mortgage. Just the original debtor is liable for the mortgage, but the lender can still foreclose.
If deed is ambiguous or silent, assumption is that it was purchased subject to the mortgage. |
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Term
|
Definition
forced sale to pay off debt.
proceeds of sale are used to pay off the debt.
excess proceeds will be used for other creditors.
not enough proceeds? deficiency judgment can be gotten against the borrower. |
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Term
| Priorities in foreclosure: |
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Definition
Generally, first in time gets paid first.
four exceptions:
purchase money mortgage gets priority.
unrecorded senior interests.
subordination agreement.
mortgage modification. |
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Term
| Deed in lieu of foreclosure: |
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Definition
| If mortgagor can't pay off her debt, she can convey the property to the lender in exchange for extinguishing any outstanding debt. |
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Term
| For a deed to be valid it must be.... |
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Definition
delivered and accepted
controlling question is whether the grantor had the present intent to transfer the property.
actual physical delivery is not required, but look out for situations where it's still revocable or incomplete.
Delivery can be made to an agent.
Acceptance is presumed. |
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Term
|
Definition
i.d. the parties.
signed by the grantor.
must include words of transfer (the granting clause)
sufficient description of the property |
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Term
| What does it mean to record a deed? |
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Definition
Publicly registering a deed.
Puts the public on notice--defends against subsequent purchasers. |
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Term
|
Definition
Deed does not have to be recorded to be valid.
Says, "first in time, first in right."
First grantee to receive a deed wins.
Every state has a recording statute that modifies this rule. |
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Term
| Scope of recording acts: what is protected/not protected? |
|
Definition
deeds.
mortgages.
leases.
options.
judgment affecting title.
other interests in land. |
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Term
| Who is protected by the recording act? |
|
Definition
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Term
| Who is not protected by a recording act? |
|
Definition
Grantees who acquired property by gift, intestacy, or devise.
reason: not subsequent purchasers for value. |
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Term
|
Definition
actual.
constructive (record notice)
inquiry notice (reasonable investigation would have exposed existence of prior claims). |
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Term
|
Definition
|
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Term
|
Definition
first to record wins.
look for "first recorded," "first to record..."
even if the second purchaser had notice of the first purchaser, the first to record their deed wins. |
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Term
|
Definition
subsequent purchaser has good title if she buys without notice of an earlier interest.
If she did not have notice, she will be protected.
key language: "In good faith," or "without notice." |
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Term
|
Definition
must satisfy both!
subsequent purchaser has good title if 2 reqs are met:
subsequent purchaser does not have notice (notice rule)
subsequent purchaser has to record first (race).
key language: combine the other two!
"Good faith/without notice" + "first recorded/first to record." |
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Term
|
Definition
| a person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor. |
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Term
|
Definition
arises when a grantor conveys land the grantor does not own.
If a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance. |
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|
Term
| what does "touch and concern" mean? |
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Definition
| it means that the benefit or burden must affect both the promisee and the promisor as owners of land, not merely as individuals. |
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Term
| An equitable servitude is a nonpossessory property right created when: |
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Definition
| (1) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest; (2) the person against whom the servitude is to be enforced has actual, constructive, or inquiry notice of the servitude; and (3) the servitude touches and concerns the land |
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Term
| Any liability after closing must arise out of the ___ not the ____ |
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Definition
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Term
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Definition
greatest amount of title protection.
grantor warrants title against all defects. |
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Term
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Definition
protection against any defects the grantor caused, but not against everyone elses.
includes all 6 warranties, but scope is limited to defects caused by grantor. |
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Term
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Definition
grantor makes no warranties.
often used in "tax sales" and major family disputes (think divorce). |
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Term
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Definition
general
special
quitclaim
differences: quality of title. How healthy is the title the grantor gave you? |
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Term
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Definition
Seizen
Right to convey
Against Encumbrances
Quiet Enjoyment
Warranty
Future Assurances |
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Term
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Definition
Covenant of seizen (deed describes the land in question)
covenant of right to convey (I'm the owner of this property and I have the right to convey it)
Covenant against encumbrances (no undisclosed encumbrances on property that could limit its value) |
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Term
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Definition
Covenant of quiet enjoyment (grantor promises to defend against future challenges against title)
Covenant of Warranty
Covenant of future assurances (promises to fix title problems in the future) |
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Term
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Definition
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Term
| covenant against encumbrances |
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Definition
| measure of damages is lesser of difference in value with defect and without defect, or cost of removing encumbrance |
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Term
| covenant of enjoyment or covenant of warranty: |
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Definition
| measure of damages is lesser of decrease in value or cost of defending title. |
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Term
seizen
right to convey
further assurance |
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Definition
| lesser of purchase price or cost of perfecting title |
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Term
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Definition
| tangible (personal) property that is attached to real party in a manner that it is treated as part of the real property. |
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Term
| When can you make improvements (contrasting fee and life tenant) |
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Definition
fee is free to make fixtures/improvements, provided they don't violate land use restrictions.
life tenants are limited by doctrine of waste! but they can make improvements otherwise. |
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Term
| right to remove fixtures: |
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Definition
buyer of property is generally entitled to keep fixtures, unless determined in contract.
lease holders/life tenants can remove fixtures unless doing so would permanently damage the property.
trespassers: old rule---could never remove. new---can remove improvement or recover value so long as they are acting in good faith?? WTF DOES THAT MEAN. |
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Term
| People who take intestate share: |
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Definition
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Term
| People who take by wills: |
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Definition
| devisee, or sometimes a legatee. |
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Term
| dying without will or heirs? |
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Definition
| property escheats to the state. |
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Term
| 4 different kinds of gifts in will |
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Definition
specific (specific property)
general (piece of personal property we satisfy from general pool: this is going to be money)
demonstrative (hybrid of specific and general: general gift to be satisfied from a particular source).
residual gift: stuff left over after general and specific gifts have been made. |
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Term
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Definition
(ademption by extinction)
devise of property that fails, because it is no longer in the testator's estate at death (sold or destroyed in life).
If it is no longer in the estate at death, that person does not get anything |
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Term
| ademption by satisfaction: |
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Definition
| You give the beneficiary the gift in life. (will gives stamp collection to X, but in life, the testator gives his stamp collection to X). It is adeemed by satisfaction. |
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Term
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Definition
devise of property that fails when the beneficiary dies before the testator dies, and no alternate beneficiary is named in the will.
lapsed gift becomes part of the residuary. |
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Term
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Definition
Apply when 2 things happen:
1. lapse gift was made to a party specified in the statute (almost always a family member).
2. family member dies first, survived by issue. |
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Term
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Definition
| device for managing property, where one person owns the property for the benefit of a beneficiary |
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Term
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Definition
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Term
| receiver of the benefit of the trust: |
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Definition
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Term
| person with equitable title of the trust: |
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Definition
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Term
| holder of legal title and obligation of managing the trust: |
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Definition
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Term
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Definition
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Term
| who makes sure the trust is being managed properly? |
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Definition
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Term
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Definition
restrictions on transferring property.
Rules:
absolute alienation is void.
partial restraint can be valid if for limited time and reasonable purpose.
restriction on use is generally permissible. |
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Term
| effect of restraint on alienation: |
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Definition
if valid, any attempt to alienate will be null and void.
If invalid, then restraint will be rejected and it won't be effective. |
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Term
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Definition
| the right held by one person to make use of another person's land. |
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Term
| land burdened by the easement? |
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Definition
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Term
| land with benefit of the easement |
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Definition
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Term
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Definition
| gives holder right to do something on another's property |
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Term
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Definition
| gives holder right to prevent someone from doing something on their land. |
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Term
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Definition
| tied to the land (holder is benefitted in the use of the property) |
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Term
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Definition
benefits holder personally. NOT tied to the land.
No dominant estate, only a servient estate.
(X grants Y an easement to use X's pool.) |
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Term
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Definition
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Term
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Definition
subject to statute of frauds.
created by grant.
or by reservation. (reserving rights in the context of transfer). |
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Term
| negative easements must be created.... |
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Definition
| expressly. cannot be implied. |
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Term
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Definition
created by operation of law.
exceptions to the statute of frauds.
likely to be on the bar.
Not formal/written/express.
product of factual circumstances.
not subject to recording statutes, unless subsequent purchaser had notice. |
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Term
| 4 kinds of implied easements: |
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Definition
easement by necessity.
easement by implication (prior use)
easement by proscription (adverse possession)
Easement by estoppell |
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Term
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Definition
only created when property would be virtually useless.
best example: landlocked property.
can only arise when:
1. dominant and servient estates were owned by one person.
2. necessity arose when estate was severed into two separate estates. (one piece or property became useless when the estate was severed)
convenience is not enough!
easement ends when it is no longer necessary. |
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Term
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Definition
created by existing use on a piece of property.
1. large estate owned by common ownership.
2. before severance, owner of large tract uses land as if there is an easement on it (quasi-easement) (ex: live on west side, crosses east side to reach road).
3. use must be continuous and apparent at time of severance.
4. must be reasonably necessary to dominant estate's use and enjoyment.
note that reasonably necessary is NOT absolutely necessary. |
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Term
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Definition
like adverse possession, but about USE, not possession.
elements:
continuous
open and notorious
hostile
exclusivity NOT required. |
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Term
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Definition
starts with permissive use.
so, neighbor promises to allow other neighbor to use it, and the other neighbor relies on it.
reliance: we are looking for investing money or expending resources in reliance on the promise (no writing necessary).
1. permission.
2. reliance.
3. owner tries to withdraw permission.
4. owner is estopped from withdrawing. |
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Term
| scope of an express easement: |
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Definition
Scope is determined by terms of easement when created. Ambiguous terms are interpreted by intent.
We presume that future use is anticipated; if there is a change in use, ask whether it was reasonably foreseeable.
If use exceeds scope, dominant tenant is trespassing. |
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Term
| scope of an implied easement: |
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Definition
determined by nature of prior use or necessity.
remember this is the easy one! |
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Term
| who has duty to maintain easement? |
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Definition
| owner of easement! whoever gets to use it needs to maintain it. |
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Term
| Termination of easement: release: |
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Definition
holder of easement expressly releases easement in writing.
subject to SoF. |
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Term
| termination of easement: merger: |
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Definition
If easement holder buys the property the easement was on, the easement is terminated.
easement does not survive if he later sells the prop! |
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Term
| termination of easement: abandonment |
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Definition
more than non-use and statements: needs non-use + intent to abandon.
Not using it PLUS engaging in act demonstrating intent to abandon. |
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Term
| termination of easement: proscription |
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Definition
easement holder fails to protect their easement from a trespasser (likely the property owner).
obstructing the easement
continuous for the statutory period
open and notorious
hostile |
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Term
| termination of easement: estoppel |
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Definition
servient estate owner relies on easement holder's statement that they won't be using the easement anymore.
"I'm not going to use it anymore."
[land owner plants a garden over path]
"I want to use it again."
[too bad] |
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Term
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Definition
profit: right to enter another's land and remove a specific natural resource. subject to same doctrines as easements!
license: revocable permission to use another's land. easement's are NOT revocable, remember. |
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Term
| termination of easement by necessity: |
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Definition
| when the necessity is removed, the easement is terminated. |
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Term
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Definition
promise concerning the use of the land, that runs to successors.
"runs with the land." |
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Term
| 5 requirements to "run with the land." |
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Definition
1. writing
2. intent
3. touch and concern
4. notice
5. privity |
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Term
| Real covenants: writing requirement |
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Definition
Subject to SoF.
Real covenant can be recorded.
must be in writing. |
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Term
| real covenant: intent to run |
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Definition
| original parties must intend that the covenant run with the land. Look for language like, "and his heirs and assigns," for example. |
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Term
| real covenant: touch and concern |
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Definition
benefit or burden must affect the promisee and promisors as owners of the land.
tough to apply, really.
negative: restriction will usually touch and concern the land. (don't worry about unenforceable ones, like racists covenants).
affirmative: homeowner's fees do touch and concern. |
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Term
| real covenant: notice requirement |
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Definition
2 possibilities.
actual notice
constructive (record) notice.
[3rd option, inquiry notice, doesn't apply so much here as it does to equitable servitudes]. |
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Term
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Definition
Running the burden: original parties to the promise must have been in horizontal privity. (property transfer between original parties).
also need vertical privity. |
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Term
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Definition
privity of estate.
this is where estate and covenant are contained in the same instrument (a deed).
looking for a transfer. |
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Term
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Definition
| privity between successor in interest and original party. |
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Term
| to run burden of covenant to successor: |
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Definition
| successor must take original party's entire interest. |
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Term
| to run benefit of covenant to successor: |
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Definition
| successor must take an interest that is carved out of the original party's interest. (life estate, tenancy). |
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Term
| remedy for breach of covenant: |
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Definition
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Term
| relationship between equitable servitudes and real covenants: |
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Definition
equitable servitudes fill in the gaps where real covenants fall short.
equitable servitude should be easier to get. |
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Term
| gist of equitable servitude: |
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Definition
in order to bind successor, must be in writing (except the "implied reciprocal servitude."
must have been intent to run with the land.
must also touch and concern the land.
has to be notice (actual, notice, and INQUIRY here).
NO PRIVITY REQUIREMENT (this is why they were created, and this is what really distinguishes eq servitudes from real covenants). |
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Term
| remedy for equitable servitude: |
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Definition
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Term
| implied reciprocal servitude: |
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Definition
special case where equitable servitudes don't have to be in writing.
usually comes up in planned communities (where there is some planned community with applicable rules: looking for a common plan).
elements:
1. intent to create servitude on ALL plots in community.
2. restriction must be reciprocal (benefit and burden each parcel).
3. restriction must be negative, not positive.
4. successor must be on NOTICE of the restriction (if not in deed, the easiest way they'll be on notice is INQUIRY notice [ex: if everybody has a white house in the community, they are on inquiry to check out whether they have to paint their house white]).
5. Common Plan (easiest way: map recorded; could also be evidence in the marketing; or oral/written mention of restriction). |
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Term
| Changed Circumstances Doctrine |
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Definition
Comes up in the context of equitable servitudes most often.
looking for situation where restriction no longer makes sense.
Drastic change in circumstances.
Critical question: If the property subject to the restrict retains the benefit. |
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Term
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Definition
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Term
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Definition
Riparian rights: landowner who borders waterway (the riparian) owns the rights to the waterway, sharing right to the reasonable use of the water. (reasonable use approach).
Prior Appropriation Doctrine: Rule is "first in time, first in right." "Beneficial use" standard: has to be put to some beneficial use. |
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Term
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Definition
lateral support: a land owner cannot excavate so as to cause a cave-in (subsidence) on neighbor's property.. There is negligence liability if neighbor's own buildings contributed to the subsidence.
Strict liability: As above, but if neighbor's buildings did NOT contribute to subsidence, then there is strict liability. |
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Term
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Definition
Rights of a surface owner against subsurface owner (miners, for example).
1. owner of mineral rights is strictly liable for any failure to support the land, and any buildings on it that existed when the rights were created.
2. owner of mineral rights is liable for negligence for any damage to buildings built after the rights were created. |
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Term
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Definition
State and local government may regulate land use by zoning laws.
enacted for protection and safety of community.
Zoning laws are constitutional.
Objective: segregate incompatible uses from developing in the same area. |
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Term
| exemptions and variances: |
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Definition
If owner can demonstrate that ordinances impose undue hardship, they can get a variance.
cannot be contrary to public welfare. |
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Term
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Definition
use that lawfully existed before the zoning ordinance came into existence, but violates ordinance once enacted.
you're allowed to keep using your prop in nonconforming use, but you probably cannot expand it. |
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Term
| vested rights and zoning: |
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Definition
| when developer is in the middle of a project when zoning ordinance is enacted, so long as they began work in good faith, they can finish the project as planned, even if it conflicts with the zoning. (can't play stupid, be greedy, act in bad faith). |
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Term
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Definition
fed and state gov't can take property through eminent domain.
1. gov't receives title to the property.
2. gov't pays land owner "just compensation."
only applies to takings for public use.
taking=FORCED sale. |
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Term
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Definition
not the same as eminent domain.
When gov't regulation reduces property value to death, the G will pay some money for that. |
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