Term
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Definition
| Four types of servitudes: (1) easements, (2) License, (3) the Profit, (4) the covenant, and (5) equitable servitudes. |
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Term
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Definition
| Defined: An easement is a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called the servient estate. |
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Term
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Definition
| The right to do something on the servient land |
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Term
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Definition
the holder can prevent the servient landowner from doing something that would otherwise be permissible.
Four categories of negative easements (LASS): Light, Air, Support, Stream water flow from artificial water source |
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Term
| Creation of Negative Easement |
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Definition
| By express writing singed by the grantor |
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Term
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Definition
Only one piece of property is involved. The holder gets some personal or pecuniary advantage that is not related to his use or enjoyment of his own land. Servient land is burdened but there is no accompanying dominant tenenment benefit.
Easement in gross is NOT transferable except for commercial purposes. |
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Term
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Definition
It takes two! Two parcels must be involved. A dominant tenement dervies the benefit. A servient tenement derives the burden.
Appurtenant easements (burdens and benefits) pass automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance. The burden will not pass, however, if BFP has no notice of the easement. |
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Term
| Creation of Affirmative Easement |
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Definition
| PING: Prescription, Implication, Necessity, Grant |
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Term
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Definition
Creation: express writing that satisfies the formal elements of a deed if duration greater than one year to comply with statute of frauds.
An ORAL easement creates instead a freely revocable LICENSE
The writing evidencing the easement is called the "deed of easement." |
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Term
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Definition
| AKA easement implied from existing use. Creation: (1) the previous use was apparent and (2) the parties expected that the use would continue becaus eit is reasonably necessary to the dominant lands use and enjoyment. |
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Term
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Definition
This arises in the landlocked setting.
Creation: if grantor conveys a portion of his land with no way out except over part of grantor's remaining land. |
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Term
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Definition
Creation: satisfy the elements of adverse possession (COAH). (1) Use is continuous for the statutory period, (2) use is open and notorious, (3) the use is actual, (4) and the use is without the owners consent, it is hostile.
NOTE: permission defeats the acquisition of an easement by prescription because the use MUST be hostile. |
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Term
| Termination of an Easement |
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Definition
| END CRAMP: estoppel, necessity, destruction of the servient land, condemnation of the servient land, release, abandonment, merger, prescription |
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Term
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Definition
Definition: the mere privilege to enter the property of another for some delineated purpose.
Creation: oral or written
Termination: at any time by the lecensor, unless estoppel applies to bar revocation because licensee invested substantial money, labor, or both |
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Term
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Definition
Entitles its holder to enter the servient land and take from it the SOIL, or some SUBSTANCE of the soil, e.g. minerals, timber, and oil.
The profit shares all the rules of easements |
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Term
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Definition
| Defined. A promise to do or NOT to do something related to land. It is UNLIKE the easement because it is not he grant of a property interest, but rather a CONTRACTUAL limitation or promise regarding land. |
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Term
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Definition
| A promise to refrain from doing something related to land, e.g. I promise not to build for commercial purposes. |
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Term
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Definition
| A promise to do something related to land, e.g., I promise to paint our common fence. |
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Term
| Covenant or Equitable Servitude? |
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Definition
| Both are promises related to land, so how do you best tell the difference? Look at the remedy. If injunctive relief is sought, it is an equitbale servitude. If damages, it is a covenant. |
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Term
| Covenants that Run With the Land |
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Definition
A covenant that runs with the land is one that is binding on its successors.
For the BURDEN to run, several conditions must be met (WITHN): (1) the covenant must be in WRITING; (2) the original parties must have INTENDED that the covenant would run; (3) the agreement must TOUCH and CONCERN that land, i.e., it must affect the parties legal relation as landowners; (4) there must be HORIZONTAL and VERTICAL privity; and (5) NOTICE, e.g., A-1 had notice of the promise between A and B when she took.
For the BENEFIT to run (WITV): (1) writing, (2) intent, (3) touch and concern, and (4) vertical privity. |
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Term
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Definition
| This is one of the requirements for the BURDEN to run with respect to covenants. Horizontal privity refers to the nexus between the original parties A and B. It requires that they be in succession of estate, meaning that they were in a grantor-grantee relationship, landlord-tenant relationship, or mortgagor-mortgagee relationship. This is HARD to establish and it is likely the sticking point. |
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Term
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Definition
| For the benefit to run with the land, vertical privity is necessary but horizontal privity is not. Vertical privity refers to the nexus between A and A-1. It simply requires some NON-HOSTILE nexus, such as contract, devise, descent, etc. The only time vertical privity will be absent is if A-1 acquired her interest through adverse possession. |
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Term
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Definition
Defined. A promise that equity will enforce against successors. It is accompanied by injunctive relief.
Creation (WITNES): (1) generally (but not always) a writing is needed; (2) intent that the promise would bind successors; (3) touch and concern the land; and (4) notice.
NOTE: Privity is NOT required to bind successors. |
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Term
| Implied Equitable Servitudes |
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Definition
This is the general or common scheme doctrine. Two elements are required for this to apply:
1. When the sales began, the subdivider (A): had a general scheme of residential development, which included Defendant's lot; and
2. The defendant lotholder (B) had notice of the promise contained in the prior deeds.
Three ways to satisfy the "notice" requirement (AIR): (1) actual notice, (2) inquiry notice, and (3) record notice. NOTE that subsequent buyers may or may not be held to be on notice of the contents of prior deeds transferred to others by common developer. The better view is that they are not. |
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Term
| Defenses to Enforcement of Equitable Servitude |
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Definition
| (1) Changed Conditions: must be so pervasive that the ENTIRE area is changed. The changed circumstances alleged by the party seeking release from the terms of an equitable servitude must be so pervasive that the ENTIRE neighborhood has changed. MERE PORTIONS of limited change are NEVER enough. |
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Term
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Definition
Possession of property for a period of time can ripen into title.
Requirements (COAH): (1) continuous and uninterrupted use for statutory period; (2) open and notorious; (3) actual; and (4) hostile. |
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Term
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Definition
| One adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privity, which is satisfied by any non-hostile nexus. Tacking is NOT allowed when there has been an ouster because the nexus is hostile |
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Term
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Definition
| The SOL will not run against a true owner who is afflicted by a disability at THE START OF THE ADVERSE POSSESSION. Examples: insanity, infancy, imprisonment. Remember, the disability must exist at the START of the AP. |
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Term
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Definition
The Land K must be in writing, signed by the party to be bound (defendant). It must describe Blackacre and state some consideration.
If the amount of land described in the K is more than the actual size of the parcel, the remedy is specific performance with a pro rata purchase price reduction.
Partial performance is an exception to the writing requirement. For partial performance exception, two of the following three conditions must be satisfied: (1) B takes possession, (2) B pays all or part of the purchase price, and/or B makes substantial improvements.
Land K's contain two implied promises: (1) marketable title and (2) no false statements of material fact. In most jurisdictions, the seller may also be held to task for failure to disclose latent material defects and material lies or omissions. This is true notwithstanding a general disclaimer of liability. |
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Term
| The Problem of the Risk of Loss |
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Definition
| Technically a conveyance of land requires a land contract and a deed. What happens if the property is destroyed after the K is signed but before the deed is delivered? Apply the doctrine of equitable conversion: equity regards as done that which ought to be done. Thus, once B signs the K, he owns the land. |
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Term
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Definition
| Two requirements: (1) Land K and (2) a closing, where the deed becomes the operative instrument. |
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Term
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Definition
A seller impliedly promises in the land K that, at the closing, title is free from reasonable doubt, free from lawsuits, and free from threat of future litigation.
Three circumstances will render title unmarketable: (1) adverse possession (even of only part of the title), (2) encumbrances (unless buyer waives), and (3) zoning violations. |
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Term
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Definition
| Land K contains no implied warranties of fitness or habitability. Exception: implied warranty of fitness and workmanlike construction applies to the sale of a new home or building by a building vendor. |
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Term
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Definition
Deed must be lawfully executed and delivered (LEAD). It must be (1) in writing signed by the grantor, but it need to site consideration, nor must consideration pass to make the deed valid. The writing must describe the land, but it does not have to be perfect. All that is required is an UNAMBIGUOUS description and a good lead. A good lead means something that can be researched to figure out what it means, e.g., O conveys to A and his heirs all O's land located in Novato, CA.
The delivery requirement is satisfied by physical delivery, but the actual instrument itself does not need to be transferred. Apply the legal standard of delivery: did the grantor have the PRESENT INTENT to be bound irrespective of whether or not the deed was handed over?
Rejection of the deed defeats delivery. |
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Term
| Oral Conditions attached to Deed |
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Definition
| The oral condition drops. Example: Blackacre to A, but then orally O says to A, "blackacre is only yours if you survive me." The oral condition drops out and A gets blackacre in fee simple. |
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Term
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Definition
| Three types of deeds: (1)Quitclaim, (2) General Warranty Deed, and (3) the Special Warranty Deed. |
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Term
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Definition
| This is the worst type of deed. It contains no covenants at all. Grantor isn't even promising that he has title to convey. Remember, the grantor is on the hook pre-closing for breach of K because the land K impliedly promises marketable title. But post-closign the K is ineffective so buyer off the hook with quitclaim deed. |
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Term
| The General Warranty Deed |
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Definition
| This is the best deed a buyer can hope for. It warrants against all defects in titles, including those due to grantor's predecessors. |
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Term
| The Statutory Special Warranty Deed |
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Definition
| This deed contains two promises that grantor only makes on behalf of himself. (1) he promises he has not conveyed Blackacre to anyone other than grantee, and (2) that Blackacre is free from encumbrances made by grantor. |
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Term
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Definition
| Used when there is double dealing. Protects bona fide purchasers and mortagees (creditors) |
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Term
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Definition
One who pays value (even bargain purchase)for property and has no notice that someone got there first.
NOTE: an HEIR, DEVISEE OR DONEE to the grantor cannot be a BFP unless the SHELTER RULE applies. |
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Term
| Types of Notice to Defeat BFP |
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Definition
1. Actual Notice: prior to B's closing, B learns of A.
2. Inquiry Notice: whatever an exam of the land would show regardless of whether survey was done or not.
3. Record Notice: B is on record notice of A's deed if at the time B takes, A's deed was recorded properly. Record notice requires that the deed be recorded properly, within the chain of title, which is the sequence of recorded documents capable of giving record notice. (grantor-grantee index) |
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Term
| The "NOTICE" Recording Statute |
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Definition
"A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded" is a typical notice statute.
THE LAST BFP TO ENTER WINS. |
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Term
| Race Notice Recording Statute |
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Definition
"Any conveyance of an interest in land shall not be valid against and subsquent purchaser for value, without notice thereof, whose conveyance is recorded first."
THE PREVAIL, B MUST (1) BE A BFP AND (2) WIN THE RACE TO RECORD. |
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Term
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Definition
O sells Blackacre to A, who does not record. Then, A sells to B. B records to A-B deed. The A-B deed, although recorded, is NOT connected to the chain of title because the O-A link is missing from the records. The A-B deed is therefore a WILD DEED.
Wild Deeds are incapable of giving record notice of its existence. |
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Term
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Definition
| One who conveys realty in whcih he has no interest is estopped form denying the validity of that conveyance if he later acquires that previously transferred interest. |
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Term
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Definition
Defined. A security interest in land held as collateral for the repayment of a debt. Thus, two elements: (1) debt and (2) voluntary lien in debtor's land to secure the debt.
Mortgages are freely alienable. |
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Term
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Definition
| This is a mortgage evidenced by writing, which most mortgages are. |
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Term
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Definition
| O owns Blackacre. Creditor lends O money. Parties understand that Blackacre is the collateral for the debt, but instead of executing a note, O hands Creditor a deed to Blackacre that is absolute on its face. |
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Term
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Definition
| If a mortgagee transfers his interest to a third party, the transferee is eligible to become a holder in due course, which means that he takes the ntoe free of any personal defenses that could have been raised against the original mortgagee. Thus, a holder in due course can foreclose despite any personal defenses. He is still subject to real defenses. |
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Term
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Definition
If a mortgagee transfers his interest to a third party, the transferee is eligible to become a holder in due course, which means that he takes the ntoe free of any personal defenses that could have been raised against the original mortgagee. Thus, a holder in due course can foreclose despite any personal defenses. He is still subject to real defenses.
Requirements: |
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Term
| Real Defenses to Foreclosure |
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Definition
| MAD FIFI^4: (1) Material Alteration; (2) duress; (3) fraud in the factum; (4) incapacity; (5) illegality; (6) infancy; and (7) insolvency. |
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Term
| Recording Statutes Protect Mortagees |
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Definition
| If O, our debtor-mortagor, sells Blackacre, which is now mortaged, the lien remains on the land so long as the mortgage was properly recorded. |
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Term
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Definition
| If a person "assumes a mortgage" he becomes personally liable for it along with the original debtor-mortgagor. B is primarily liable and O is secondarily liable. |
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Term
| "Subject to the Mortgage" |
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Definition
| B not personally liable for the debt but if he does not pay and O skipped town then the mortagee will foreclose on the land because if it was properly recorded the mortgage runs with the land. |
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Term
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Definition
| If mortgagee forecloses on the land and sale does not satisfy all the debt, mortgage must file a deficiency action against debtor. |
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Term
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Definition
| Junior liens are paid in order of their priority. Any remaining surplus goes back to the debtor. |
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Term
| Foreclosure Disbursement Order |
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Definition
| Off the top: attorney's fees, foreclosure offenses, any accrued interest on the primary mortgage. Then claimaints paid in order of their priority, in full. |
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Term
| Failure to Include Necessary Parties to the Foreclosure Action |
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Definition
Those with interests subordinate to those of the foreclosing party are necessary parties to the action. The debtor-mortgagor is also considered a necessary party and must be joined.
Failure to include a necessary party means the mortgage remains on the land.
NOTE: foreclosure does not affect any interests SENIOR to the mortgage. The buyer at the sale takes 'SUBJECT TO' that senior interest. |
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Term
| The Purchase Money Mortgage |
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Definition
| A mortgage given to secure a loan that enables the debtor to acquire the encumbered land. Purchase Money Mortagees have FIRST PRIORITY as to the parcel transferred. |
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Term
| Priority of creditor-parties to a foreclosure action |
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Definition
| as a creditor, you must record. Until properly recorded the mortgagee has no priority. Once recorded, priority is determined by the norm of "first in time, first in right." |
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Term
| Equitable Redemption of Foreclosed Property |
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Definition
| At any time prior to the foreclosure sale, the debtor can try to redeem the land. Once a valid foreclosure has taken place, the right is gone. |
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Term
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Definition
| The Right of a debtor to redeem the foreclosed property before it is sold. This right CANNOT BE WAIVED. This is known as clogging the equity of redemption; it is prohibited. |
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Term
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Definition
recognized in half the states, it gives the debtor a statutory right to redeem for some fixed period after the foreclosure sale has occurred (usually six months - 1 year). This applies only AFTER foreclosure sale. The amount paid is usually the foreclosure sale price, not the original outstanding debt.
The effect of redemption is to nullify the foreclosure sale and the redeeming owner is restored to title. |
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Term
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Definition
If land is improved by BUILDINGS and an adjacent landowner's excavation causes that improved land to cave in, the excavator will be liable only if he is NEGLIGENT.
STRICT LIABILITY does not attach to the excavator's actions unless plaintiff shows that because of defendant's actions, her improved land would have collapsed EVEN IN ITS NATURAL STATE. |
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Term
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Definition
| A major system for determining the allocation of WATER RIGHTS with respect to streams, lakes, and rivers. Under this doctrine, the water belongs to those who own the land BORDERING THE WATER COURSE, known as "riparians." One riparian will be liable if his use unreasonably interferes with the others use (like nuisance). |
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Term
| The Prior Appropriation Doctrine |
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Definition
The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual, regardless of whether or not he happens to be a riparian owner.
Rights are determined by PRIORITY OF BENEFICIAL USE. The norm for allocation is FIRST IN TIME, FIRST IN RIGHT.
Any productive use of the water, like for agriculture, is sufficient to create the appropriation right. |
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Term
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Definition
| AKA "percolating water," it is water beneath the surface of the earth that is not confined to a known channel. The surface owner is entitled to make reasonable use of groundwater. However, the use must NOT be wasteful. |
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Term
| Common Enemy Theory Regarding Surface Water |
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Definition
i.e., those which come from rain, springs, or melting snow, and which have not yet reached a natural watercourse or basin.
Surface water is considered the "common enemy" because it does not belong where it is. A landowner may change drainage or make any other changes on his land to combat the flow of surface water. Many courts have modified this rule to prohibit unnecessary harm to other land. |
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Term
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Definition
| To be free from trespass and nuisance. |
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Term
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Definition
| The invasion of land by tangible, physical object. To remove a trespasser, bring an action for ejectment. |
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Term
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Definition
| Substantial or unreasonable interference with another person's use and enjoyment of his land. Unlike trespass, nuisance does NOT require a physical invasion. Thus, ODORS and NOISE could give rise to nuisance, but not trespass. |
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Term
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Definition
| Gov's 5th Amendment power to take private property for public use in exchange for just compensation. |
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Term
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Definition
| Acts of gov't condemnation under power of eminent domain. Example: gov't condemns your land to make way for a public highway. |
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Term
| Implicit or Regulatory Takings |
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Definition
| A gov't regulation that has the same effect as a taking because it economically wipes out your investment. Example: developer buys land to develop, before he does, gov't imposes ban on all new development. |
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Term
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Definition
| State/city/municipality's police power to enact statutes to reasonable control land use. |
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Term
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Definition
| The principle means to achieve flexibility in zoning. Proponent of variance must show: (1) undue hardship that has not been self-imposed and (2) the variance will not decrease neighboring property values. |
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Term
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Definition
| Once a lawful, existing use of property is now deemed nonconforming by a new zoning ordinance, the property cannot be eliminated all at once unless just compensation is paid. Otherwise, it could be deemed an unconstitutional taking. |
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Term
| Unconstitutional Exaction |
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Definition
Exactions are those amenities gov't seeks in exchange for granting permission to build.
To pass constitutional must, exactions must be reasonably related both in nature and scope to the impact of the proposed development. |
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Term
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Definition
| Title is in the mortgagee until the mortgage has been satisfied or foreclosed. Thus, the mortagee is entitled to possession on demand at any time. |
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Term
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Definition
| Under lien theory, title remains in the mortgagor and the mortgagee holds only security interest in the property. |
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Term
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Definition
| a landowner cannot alter the natural flow of surface water where such actions would injure others above or below him. |
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Term
| First in Time Rule Regarding Land Conveyances |
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Definition
| Priority is given to the grantee who was first in time unless operation of the jurisdiction's recording statue changes the result. |
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Term
| Effect of Modification Agreement on Priority of Senior Mortgage |
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Definition
| Where a landowner enters into a modification agreement with the senior mortgagee that makes the mortgage more burdensome, the junior modification will be given priority over the modification. |
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Term
| What are the elements generally needed for an "equitable mortgage?" |
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Definition
| (1) the existence of a debt or promise of payment by the deed's grantor, (2) the grantee's promise to return the land if the debt is paid, (3) the fact that the amount advanced is substantially less than the value of the property, (4) the degree of the grantor's financial distress, and (5) the parties prior negotiations. |
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Term
| What are the six covenants contained in a general warranty deed? |
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Definition
1. Title
2. Seisin
3. right to convey
4. encumberances
5. warranty
6. further assurnaces
7. quiet enjoyment |
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