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Property II
Land Use, Tenancies, Easements, Takings, Co-Ownership, Estates+Future Interests
90
Law
Professional
05/01/2013

Additional Law Flashcards

 


 

Cards

Term
Nuisance:
Rule
Definition
Substantial AND unreasonable interference w/ another's use and enjoyment of his property
Term
Nuisance:
Substantial
Definition
Impacts of the interference. How bad is it? Aesthetics/annoying NOT substantial.
Term
Nuisance:
Unreasonable
Definition
Context: character of the neighborhood. Is the pig in the parlor?
Intensity: is the impact too much?
Term
Nuisance:
Interference
Definition
How was the property used/enjoyed and how has that changed?
Term
Nuisance:
Remedy
Definition
Balancing of the equities: try to ensure everyone can use efficiently.
Term
Non-Conforming Use
Definition
Use that was lawful before the passage of a zoning ordinance that does NOT conform to the ordinance. Cannot be eliminated immediately.
Term
Vested Rights
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.
Term
Variance
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.
Term
Special Exception
Definition
Conditional use, determined by legislature will NOT ordinarily be detrimental to neighborhood.
Term
Rezoning
Definition
Must have rational basis relating to police powers.
Term
Zoning
Definition
Cannot be arbitrary and capricious.
Term
Categorical Taking:
Lucas
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.
Term
Regulatory Taking:
Penn Central
Definition
3 factor balancing test: economic impact on owner; reasonable investment-backed expectations; character of gov't action.
Term
Exactions:
NollanDolan
Definition
There must be an essential nexus and rough proportionality between the exaction and the impact of the proposed development.
Term
Public Use Doctrine
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.
Term
Takings:
Remedy
Definition
Just compensation OR terminate the reg and pay owner for any damages that occurred while it was in effect.
Term
Easements:
Appurtenant
Definition
Requires 2 properties. Dominant receives benefit. Servient is burdened. NOT severable from the land.
Term
Easements:
In Gross
Definition
1 burdened property and a benefiting party. Do NOT run w/ the land. Assignable. NOT divisible.
Term
Easements:
Affirmative
Definition
Entitles holder to enter servient and make affirmative use of it.
Term
Easements:
Negative
Definition
Restricts servient owner's use for the benefit of someone else.
Term
License
Definition
Permissive use. Revocable at will.
Term
Irrevocable License
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.
Term
Easements:
Express Grant
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.
Term
Easements:
Prescriptive
Definition
actual use, open and notorious, adverse, continuous and uninterrupted.
Term
Implied Easements:
Prior Use
Definition
At the time of severance: unity of title; apparent and continuous use; and reasonable necessity for the use.
Term
Implied Easements:
By Necessity
Definition
At the time of severance: unity of title and strict necessity. Continuing necessity also required.
Term
Easements:
Scope
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
Term
Surcharge
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.
Term
Easements:
Termination
Definition
Express terms, merger, release, abandonment, estoppel, presciption, lack of necessity, frustration of purpose.
Term
Covenant
Definition
Promise to use property in some way to benefit others. Becomes a property issue AFTER a conveyance.
Term
Runs w/ the Land
Definition
Intended to bind the property AND survive transfer.
Term
Real Covenants:
Burden
Definition
Writing, intent to bind properties, notice, horizontal AND vertical privity, touch and concern.
Term
Real Covenants:
Benefit
Definition
Writing, intent to bind properties, vertical privity, touch and concern.
Term
Touch and Concern
Definition
Covenant substantially alters the rights of ownership.
Term
Equitable Servitudes
Definition
Writing, intent to bind the properties, notice, touch and concern.
Term
Negative Reciprocal Easements
Definition
Exception to writing requirement for equitable servitudes. Inquiry notice of a common plan: enough compliance.
Term
Covenants:
Termination
Definition
Merger, release, acquiescence, abandonment, unclean hands, laches, estoppel, unconscionable.
Term
Abandonment
Definition
Intent to relinquish AND an act in furtherance.
Term
Term of Years or Fixed Term
Definition
Fixed commencement and termination.
Creation: writing
Duration: fixed
Termination: automatic
Term
Periodic or Month-to-Month/Year-to-Year
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)
Term
Tenancy at Will
Definition
Creation: specific agreement that either party can terminate at will
Duration: until termination by either party
Termination: notice or death
Term
Tenancy at Sufferance
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)
Term
Tenancy:
Assignment
Definition
ALL T's interests are transferred. A AND T liable to L because of privity.
Term
Tenancy:
Sublease
Definition
T retains some rights. SL NOT liable to L because NO privity.
Term
Duty of Good Faith and Fair Dealing in Alienation
Definition
L cannot unreasonably w/hold consent to alienation by T. L can only w/hold for commercially reasonable objections.
Term
Duty to Repair:
Voluntary Waste
Definition
T is liable for intentional or negligent damages to the property.
Term
Duty to Repair:
Permissive Waste
Definition
T has a duty to L to ensure damage does NOT worsen.
Term
Defaulting T
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.
Term
Eviction
Definition
Physical dispossession. Relieves T of duty to pay rent.
Term
Eviction:
Self-Help
Definition
NO longer acceptable. Use summary proceedings.
Term
Eviction:
Constructive
Definition
L's action/inaction deprives T of use and enjoyment. T must vacate w/in a reasonable time.
Term
Eviction:
Retaliatory
Definition
Rebuttable presumption of retaliation by L for T enforcing implied warranty of habitability. After T makes repairs, presumption expires.
Term
Implied Warranty of Habitability
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.
Term
L's Tort Liability
Definition
L liable for damages for injuries sustained in common areas, from faulty repairs, and from concealed defects.
Term
Delivery of Possession:
American Rule
Definition
L has NO duty to put T in possession.
Term
Joint Tenancy w/ Rights of Survivorship
Definition
4 unities required at all times: time, title, interest, and possession.
Severance: inter vivos conveyance
Term
Tenancy by the Entirety
Definition
Requires 4 unities + marriage.
Severance: death, divorce, mutual agreement.
Term
Tenancy in Common
Definition
Only unity required is possession. Freely alienable and devisable.
Term
Ouster
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.
Term
Partition in Kind
Definition
Division of the tract into parcels. Favored method.
Term
Partition by Sale
Definition
Property is sold and proceeds divided. Permitted when fair and equitable physical division (in kind) is NOT possible.
Term
Fee Simple Absolute
Definition
NOT defeasible
Term
Fee Simple Determinable
Definition
AUTOMATICALLY reverts to grantor (possibility of reverter). As long as, while, until, during.
Term
Fee Simple Subject to Condition Subsequent
Definition
Reverts to grantor at grantor's election (right of reentry). But if, provided that, on condition that.
Term
Fee tail
Definition
Until end of bloodline. Followed by reversion in grantor. And the heirs of his body.
Term
Life Estate
Definition
Measured by the grantee's life.
Term
Life Estate Per Autre Vie
Definition
Measured by the life of another.
Term
Term of Years
Definition
Specific duration.
Term
Possibility of Reverter
Definition
AUTOMATICALLY vests in grantor. Follows fee simple determinable.
Term
Right of Reentry
Definition
Vests in the grantor at grantor's election. Follows fee simple subject to condition subsequent.
Term
Subject to Executory Limitation
Definition
Defeasible fee that vests in a 3rd party rather than the grantor. Future interests are executory interests.
Term
Shifting Executory Interest
Definition
Future interest that shifts from a 3rd party to another 3rd party.
Term
Springing Executory Limitation
Definition
Future interest that springs out of the grantor.
Term
Reversion
Definition
Grantor retains future interest when he has NOT conveyed entire interest.
Term
Executory Interest
Definition
Either cuts the previous interest short or NOT capable of becoming immediately possessory (ex: built in time gap).
Term
Remainder
Definition
1. Does NOT cut previous interest short
2. Capable of being immediately possessory
Term
Vested Remainder
Definition
1. Ascertainable
2. NO unfulfilled conditions precedent
Term
Contingent Remainder
Definition
Either NOT ascertainable OR there is an unfulfilled condition precedent.
Term
Absolutely Vested Remainder
Definition
Definitely will vest.
Term
Vested Remainder Subject to Open
Definition
At least one person is vested, but others could join the class (ex: unborn child).
Term
Vested Remainder Subject to Complete Divestment
Definition
Condition subsequent could divest the vested remainder (ex: But if..., life estate after life estate and 2nd does not outlive 1st).
Term
Rule of Convenience
Definition
Closes open classes in vested remainders subject to open so the interest can vest.
Term
Doctrine of Worthier Title
Definition
Applies to remainder or executory interest in grantor's heirs. Remainder/executory interest converted to reversion in grantor.
Term
Shelley's Case
Definition
One instrument, creates estate in a transferee, and also creates a remainder in the transferee's heirs. Transferee gets the remainder.
Term
Destructibility of Contingent Remainders
Definition
Contingent remainder destroyed if it does NOT vest at or before the termination of the preceding estate.
Term
Rule Against Perpetuities
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.
Term
Condition Subsequent
Definition
Condition that could later divest another interest.
Term
Wait and See
Definition
Jurisdictional. Only invalidate an interest if it actually vests after 21 years.
Term
Uniform Statutory Rule Against Perpetuities USRAP
Definition
Wait and see until 90 years after rather than 21 years.
Term
Cy Pres
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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