Term
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Definition
| Substantial AND unreasonable interference w/ another's use and enjoyment of his property |
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Term
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Definition
| Impacts of the interference. How bad is it? Aesthetics/annoying NOT substantial. |
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Term
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Definition
Context: character of the neighborhood. Is the pig in the parlor?
Intensity: is the impact too much? |
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Term
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Definition
| How was the property used/enjoyed and how has that changed? |
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Term
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Definition
| Balancing of the equities: try to ensure everyone can use efficiently. |
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Term
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Definition
| Use that was lawful before the passage of a zoning ordinance that does NOT conform to the ordinance. Cannot be eliminated immediately. |
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Term
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Definition
| Used to determine a non-conforming use. Requires significant investment in the use and significant improvements in the land that commit the land to that use. |
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Term
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Definition
Must be necessary to avoid imposing an undue hardship on owner AND grant must NOT substantially impinge upon the public good AND intent of zoning ordinance.
Undue hardship: owner must first made reasonable effort to comply AND hardship cannot be self-inflicted. |
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Term
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Definition
| Conditional use, determined by legislature will NOT ordinarily be detrimental to neighborhood. |
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Term
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Definition
| Must have rational basis relating to police powers. |
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Term
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Definition
| Cannot be arbitrary and capricious. |
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Term
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Definition
| Where a regulation deprives an owner of ALL economically viable use, there is a presumption of a taking. The burden shifts to the state to prove owner could NOT have done the use anyway. |
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Term
Regulatory Taking:
Penn Central |
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Definition
| 3 factor balancing test: economic impact on owner; reasonable investment-backed expectations; character of gov't action. |
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Term
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Definition
| There must be an essential nexus and rough proportionality between the exaction and the impact of the proposed development. |
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Term
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Definition
| The property taken by the gov't under eminent domain must be intended for public use. So long as there is no bad faith in selecting the property, the legislature has wide latitude in determining what a public use is. |
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Term
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Definition
| Just compensation OR terminate the reg and pay owner for any damages that occurred while it was in effect. |
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Term
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Definition
| Requires 2 properties. Dominant receives benefit. Servient is burdened. NOT severable from the land. |
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Term
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Definition
| 1 burdened property and a benefiting party. Do NOT run w/ the land. Assignable. NOT divisible. |
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Term
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Definition
| Entitles holder to enter servient and make affirmative use of it. |
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Term
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Definition
| Restricts servient owner's use for the benefit of someone else. |
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Term
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Definition
| Permissive use. Revocable at will. |
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Term
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Definition
| Created when an owner stands idly by while a licensee makes substantial improvements on owner's land made in reliance on the license and owner anticipates the improvements will be permanent. |
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Term
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Definition
| Must be in writing and signed by the holder of the servient. Presumed perpetual unless specific time limit. Can be created by a conveyance, reservation, exception, or stranger to the deed. |
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Term
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Definition
| actual use, open and notorious, adverse, continuous and uninterrupted. |
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Term
Implied Easements:
Prior Use |
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Definition
| At the time of severance: unity of title; apparent and continuous use; and reasonable necessity for the use. |
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Term
Implied Easements:
By Necessity |
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Definition
| At the time of severance: unity of title and strict necessity. Continuing necessity also required. |
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Term
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Definition
Determined by reasonable intent of original parties. Can adjust to serve original purpose.
Express: writing
Prescriptive: use
Prior use: use at severance
By necessity: holder decides what is needed for continuing necessity |
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Term
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Definition
| Beyond the scope of an easement. Does NOT terminate the easement. It is a trespass. Remedy: injunctive relief. Hostile: can be used for prescriptive. |
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Term
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Definition
| Express terms, merger, release, abandonment, estoppel, presciption, lack of necessity, frustration of purpose. |
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Term
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Definition
| Promise to use property in some way to benefit others. Becomes a property issue AFTER a conveyance. |
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Term
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Definition
| Intended to bind the property AND survive transfer. |
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Term
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Definition
| Writing, intent to bind properties, notice, horizontal AND vertical privity, touch and concern. |
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Term
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Definition
| Writing, intent to bind properties, vertical privity, touch and concern. |
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Term
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Definition
| Covenant substantially alters the rights of ownership. |
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Term
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Definition
| Writing, intent to bind the properties, notice, touch and concern. |
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Term
| Negative Reciprocal Easements |
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Definition
| Exception to writing requirement for equitable servitudes. Inquiry notice of a common plan: enough compliance. |
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Term
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Definition
| Merger, release, acquiescence, abandonment, unclean hands, laches, estoppel, unconscionable. |
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Term
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Definition
| Intent to relinquish AND an act in furtherance. |
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Term
| Term of Years or Fixed Term |
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Definition
Fixed commencement and termination.
Creation: writing
Duration: fixed
Termination: automatic |
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Term
| Periodic or Month-to-Month/Year-to-Year |
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Definition
Creation: writing OR implied by lack of set termination date. Default at termination of tenancy at sufferance.
Duration: indefinite
Termination: notice (month/6 months) |
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Term
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Definition
Creation: specific agreement that either party can terminate at will
Duration: until termination by either party
Termination: notice or death |
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Term
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Definition
NOT really a tenancy.
Creation: permissive possession ends and T has not relinquished
Duration: until ejectment or conversion to periodic
Termination: by L's election w/in a reasonable time (ejection of accepting rent) |
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Term
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Definition
| ALL T's interests are transferred. A AND T liable to L because of privity. |
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Term
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Definition
| T retains some rights. SL NOT liable to L because NO privity. |
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Term
| Duty of Good Faith and Fair Dealing in Alienation |
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Definition
| L cannot unreasonably w/hold consent to alienation by T. L can only w/hold for commercially reasonable objections. |
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Term
Duty to Repair:
Voluntary Waste |
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Definition
| T is liable for intentional or negligent damages to the property. |
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Term
Duty to Repair:
Permissive Waste |
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Definition
| T has a duty to L to ensure damage does NOT worsen. |
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Term
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Definition
| L has the duty to mitigate damages. L must treat the unit as any other vacant stock and has the burden to show his efforts. L gets damages while using due diligence. |
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Term
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Definition
| Physical dispossession. Relieves T of duty to pay rent. |
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Term
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Definition
| NO longer acceptable. Use summary proceedings. |
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Term
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Definition
| L's action/inaction deprives T of use and enjoyment. T must vacate w/in a reasonable time. |
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Term
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Definition
| Rebuttable presumption of retaliation by L for T enforcing implied warranty of habitability. After T makes repairs, presumption expires. |
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Term
| Implied Warranty of Habitability |
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Definition
| T does NOT have to vacate.Requires adequate provisions for health and sanitation. L has duty to take reasonable steps to remedy. Look to health code for stds. T must put L on notice and wait reasonable time. |
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Term
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Definition
| L liable for damages for injuries sustained in common areas, from faulty repairs, and from concealed defects. |
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Term
Delivery of Possession:
American Rule |
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Definition
| L has NO duty to put T in possession. |
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Term
| Joint Tenancy w/ Rights of Survivorship |
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Definition
4 unities required at all times: time, title, interest, and possession.
Severance: inter vivos conveyance |
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Term
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Definition
Requires 4 unities + marriage.
Severance: death, divorce, mutual agreement. |
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Term
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Definition
| Only unity required is possession. Freely alienable and devisable. |
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Term
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Definition
Wrongful exclusion of a co-tenant.
Remedy: ousted co-tenant is entitled to receive his share of fair rental value for time of ouster. |
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Term
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Definition
| Division of the tract into parcels. Favored method. |
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Term
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Definition
| Property is sold and proceeds divided. Permitted when fair and equitable physical division (in kind) is NOT possible. |
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Term
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Definition
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Term
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Definition
| AUTOMATICALLY reverts to grantor (possibility of reverter). As long as, while, until, during. |
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Term
| Fee Simple Subject to Condition Subsequent |
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Definition
| Reverts to grantor at grantor's election (right of reentry). But if, provided that, on condition that. |
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Term
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Definition
| Until end of bloodline. Followed by reversion in grantor. And the heirs of his body. |
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Term
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Definition
| Measured by the grantee's life. |
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Term
| Life Estate Per Autre Vie |
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Definition
| Measured by the life of another. |
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Term
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Definition
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Term
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Definition
| AUTOMATICALLY vests in grantor. Follows fee simple determinable. |
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Term
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Definition
| Vests in the grantor at grantor's election. Follows fee simple subject to condition subsequent. |
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Term
| Subject to Executory Limitation |
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Definition
| Defeasible fee that vests in a 3rd party rather than the grantor. Future interests are executory interests. |
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Term
| Shifting Executory Interest |
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Definition
| Future interest that shifts from a 3rd party to another 3rd party. |
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Term
| Springing Executory Limitation |
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Definition
| Future interest that springs out of the grantor. |
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Term
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Definition
| Grantor retains future interest when he has NOT conveyed entire interest. |
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Term
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Definition
| Either cuts the previous interest short or NOT capable of becoming immediately possessory (ex: built in time gap). |
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Term
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Definition
1. Does NOT cut previous interest short
2. Capable of being immediately possessory |
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Term
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Definition
1. Ascertainable
2. NO unfulfilled conditions precedent |
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Term
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Definition
| Either NOT ascertainable OR there is an unfulfilled condition precedent. |
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Term
| Absolutely Vested Remainder |
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Definition
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Term
| Vested Remainder Subject to Open |
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Definition
| At least one person is vested, but others could join the class (ex: unborn child). |
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Term
| Vested Remainder Subject to Complete Divestment |
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Definition
| Condition subsequent could divest the vested remainder (ex: But if..., life estate after life estate and 2nd does not outlive 1st). |
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Term
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Definition
| Closes open classes in vested remainders subject to open so the interest can vest. |
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Term
| Doctrine of Worthier Title |
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Definition
| Applies to remainder or executory interest in grantor's heirs. Remainder/executory interest converted to reversion in grantor. |
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Term
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Definition
| One instrument, creates estate in a transferee, and also creates a remainder in the transferee's heirs. Transferee gets the remainder. |
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Term
| Destructibility of Contingent Remainders |
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Definition
| Contingent remainder destroyed if it does NOT vest at or before the termination of the preceding estate. |
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Term
| Rule Against Perpetuities |
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Definition
| NO interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Applies to contingent remainders, executory interests, and vested remainders subject to open. |
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Term
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Definition
| Condition that could later divest another interest. |
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Term
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Definition
| Jurisdictional. Only invalidate an interest if it actually vests after 21 years. |
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Term
| Uniform Statutory Rule Against Perpetuities USRAP |
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Definition
| Wait and see until 90 years after rather than 21 years. |
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Term
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Definition
| Judicial tool for reforming a conveyance in a manner consistent w/ intentions of grantor. Ex: change age to 21 or say kids born while life in being alive. |
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