Term
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Definition
| Any affirmative action beyond the right of maintenance causing harm to the premises |
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Term
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Definition
| Inaction, where the tenant has failed to maintain |
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Term
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Definition
| Affirmative act that alters the property but increases the value of the property |
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Term
| Duties to avoid permissive waste |
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Definition
| 1) pay taxes 2) pay interest on mortgage and 3) ordinary repairs, NOT replacement |
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Term
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Definition
| Future interest kept by the grantor when grantor gives less than the duration of the estate he currently holds; alienable and not subject to RAP |
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Term
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Definition
| Future interest kept by the grantor when the grantor grants a fee simple determinable and reverts automatically upon the condition happening; alienable and not subject to RAP |
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Term
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Definition
| Future interest retained by the grantor when grantor grants a fee simple subject to condition subsequent; cannot be transferred inter vivos but not subject to RAP |
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Term
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Definition
| Future interest retained by the grantee that becomes possessory, if at all, upon the termination of the preceding estate. Only follow life estates. |
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Term
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Definition
| Nothing stands in the way of it becoming possessory because we know who will take and when. Subject to open for class gifts that have yet to close |
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Term
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Definition
| Remainder will not become possessory until the occurrence of a condition, i.e. grantee not in existence, identity of exact taker unknown, etc. |
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Term
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Definition
| Cuts short the interest preceding it upon the occurrence of some condition. Shifting = one grantee to another grantee; Springing = grantor to grantee |
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Term
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Definition
| Contingent remainders, vested remainders subject to open, executory interest, options to purchase, rights to first refusal |
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Term
| Perpetuity Savings Clause |
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Definition
| "...during the lifetime of A or B, or within 21 years after the death of A or B" |
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Term
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Definition
| Right of survivorship and right to partition. Created by the 4 unities: TTIP= time, title, interest, possession. |
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Term
| Involuntary destruction of a jt tenancy |
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Definition
| 1) Conveyance by one of the jt tenants, 2) mortgage in a title theory state, 3) K of sale, 4) Creditor's sale of the interest in the jt tenant |
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Term
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Definition
| Presumption if ambiguous. Right to partition but no right to survivorship. Only unity needed is equal rights of possession. |
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Term
| When one co tenant is accountable to other co tenants for profits |
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Definition
| 1) ouster, 2) agreement to share, 3) lease of the property by the co T, 4) depletion of natural resources |
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Term
| When one co tenant is entitled to contribution from other co tenants |
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Definition
| 1) necessary repairs, 2) mortgage payments where all co T signed for it, 3) paying taxes or other gvt obligations |
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Term
| Creation of a periodic tenancy |
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Definition
| 1) express agreement, 2) implication: lease is silent and periodic tenancy is presumed for the time of the rent period, 3) operation of law: oral lease violating SOF or hold over tenant |
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Term
| Requirements for termination of a periodic tenancy |
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Definition
| 1) must be a full rental period in advance, unless yearly (6 mos needed) and 2) must terminate on the right day |
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Term
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Definition
| Lease is silent as to duties = 1) duty to pay rent and 2) not commit waste. Lease says duty to repair and maintain = T liable for all damage even ordinary wear and tear |
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Term
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Definition
| 1) Deliver actual possession, 2) Implied warranty of habitability, 3) implied covenant of quiet enjoyment |
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Term
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Definition
| T transfers the entire leasehold. T and assignees liable for covenants that run with the land on privity of K/E theory |
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Term
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Definition
| When T transfer only a portion of the lease period. Sub has no liability to LL because no POE or POK. |
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Term
| Landlord liability in tort |
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Definition
| Only for 1) latent defects, 2) short term lease for a furnished dwelling, 3) common areas under the LL's control, 4) negligent repairs, and 5) public use |
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Term
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Definition
| Not removable by either T or S. Fixture = did the person installing intend for it to stay with rental property. Factors: 1) degree of attachment, 2) general custom, 3) degree of damage if removed, 4) trade fixture? |
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Term
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Definition
| When the easement directly benefits the use and enjoyment of a specific piece of land. Burdened property = servient estate; benefited property = dominant estate |
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Term
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Definition
| there is no dominant estate |
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Term
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Definition
| express, implied, prescription |
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Term
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Definition
| Arises with an express grant of an easement to someone else, or the reservation of an easement when land is sold to another |
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Term
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Definition
| Previous use by a common owner: must be 1) continuous, 2) apparent, 3) reasonably necessary. Absoltue right of access: an implied easement by necessity exits when property is landlocked |
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Term
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Definition
| Arises like title by adverse possession. 4 requirements: 1) use is adverse, 2) use must be continuous and uninterrupted for the statutory period, 3) use is visible and notorious, 4) use is without permission |
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Term
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Definition
| Benefit transfers automatically with the dominant estate in an easement appurtenant. For easements in gross, commercial easements can be transferred but personal cannot. |
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Term
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Definition
| Always binding on subsequent holders of the servient estate if they have notice. |
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Term
| Terms of easement are silent as to use |
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Definition
| Two presumptions: 1) Easement is perpetual, 2) use presumed is that of a reasonable development of the dominant estate, i.e. what would have been reasonably contemplated by the parties when the easement was created |
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Term
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Definition
| Holder of the easement is responsible for repairs and can always go onto the land to repair. Must make reasonable restoration of servient estate after repairs |
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Term
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Definition
| 1) abandonment by action, 2) Prescription, 3) unity of ownership, 4) Release, 5) Estoppel, 6) End of necessity |
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Term
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Definition
| Limited privilege of use, and is not a property interest. Revocable at will of the licensor. If someone tried to create and easement and messed up, they have a license. |
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Term
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Definition
| Gives the right to go onto the land and take a natural resource away. An implied easement always attaches. |
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Term
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Definition
| Right to restrict someone else's use of their land. Two types: covenants at law and equitable servitudes, distinguished by the relief sought (covenant at law = money damage; equitable servitude = injunction) |
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Term
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Definition
| Runs with the land if 1) touch and concern the land, 2) intent, 3) notice, and 4) privity |
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Term
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Definition
| Makes the land more valuable or more useful |
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Term
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Definition
| Original parties to the covenant |
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Term
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Definition
| Successor in interest and the original party from whom they got the property |
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Term
| Burden of covenant at law to run |
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Definition
| To run, must have both horizontal and vertical privity. |
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Term
| Benefit of covenant at law to run |
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Definition
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Term
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Definition
| 3 requirements: 1) intent, 2) notice, 3) touch and concern. NO PRIVITY needed. |
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Term
| Mutual rights of enforcement of equitable servitudes |
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Definition
| Two req: 1) intent and 2) notice |
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Term
| Adverse Possession Requirements |
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Definition
| HELUVA: Hostile, exclusive, lasting (SOL), uninterrupted, visible, actual. Neither knowledge by the rightful owner or claim of right by the trespasser are needed. |
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Term
| Constructive adverse possession |
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Definition
| Exception to Actual possession requirement of adverse possession. If you actually possess a part, you can get constructive possession for the whole if the amt actually possessed bears a reasonable relation to the whole AND the property must be unitary. |
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Term
| Adverse possession against concurrent owners |
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Definition
| 1) can occur only when the possessor excludes the other cotenants from possession and the statute runs. Clock starts running with the exclusion, not the co tenants absence. |
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Term
| Lasting element for future interest situations |
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Definition
| Life estate plus future interest = clock starts running when the life tenant dies. Fee simple determinable = happning of the condition starts the clock running. Fee simple on a condition subsequent = clock doesn't start running until the grantor exercises the right of entry |
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Term
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Definition
| Allowed, but periods must pass directly from one adverse possessor to another, no gaps. Does not have to be against the present owner for the entire statutory period of time |
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Term
| Disability in adverse possession |
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Definition
| If O is under a disbility (minor, insane, or in jail) at the time the adverse possession begins, the adverse possession clock does not start to run until O is free from disability. |
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Term
| Who do recording statutes protect? |
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Definition
| Subsequent purchasers, but NOT judgment creditors |
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Term
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Definition
| Notice Acts, race notice, and pure race. NC: pure race! |
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Term
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Definition
| Protect subsequent grantees who are BFPs (those who give value and who take without notice of the earlier transaction) |
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Term
| Race notice recording statute |
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Definition
| Protects subsequent BFP for vale who take without notice AND are first to record |
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Term
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Definition
| Subsequent purchaser does not have to be a BFP-- can know about the earlier sale and still win if record first |
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Term
| What recording statute has the buzz words "without notice" or "in good faith" |
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Definition
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Term
| What recording statute has the buzz words "without notice" or "in good faith" AND "First recorded" or "recorded first" |
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Definition
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Term
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Definition
| A BFP for value without notice. An heir, donee, or devisee does not take for value. |
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Term
| What notice can prevent a BFP? |
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Definition
| 1) Actual, 2) Record notice = a constructive notice that arises from the record, 3)Inquiry notice = where a reading of the deeds on record discloses an unrecorded transaction, and the subsequent purchaser has to check it out |
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Term
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Definition
| Protects anyone who takes from a BFP whether they are purchasers for value or not and matter what they know |
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Term
| Types of Security Interests |
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Definition
| Mortgage (debtor gives directly to creditor), Deed of Trust (debtor gives to a third party trustee), Installment land K (seller keeps title until loan is paid off) |
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Term
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Definition
| At any time up to the foreclosure sale, debtor can redeem the property. Right to redeem cannot be waived in the mortgage or deed of trust creating agreement, but may be done later if separate consideration |
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Term
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Definition
| First in time, first in right. Can be overcome if do not comply with the recording act. Can be changed by K. |
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Term
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Definition
| PMM gets priority over other mortgages executed at the same time. PMM by seller wins over PMM by financer. |
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Term
| No relation back doctrine |
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Definition
| If owner does anything to increase a senior M, then that M loses its priority over junior ones but ONLY to the extent of the change |
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Term
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Definition
| Wipes out all junior interests; but do not wipe out senior interests. Purchaser at a foreclosure sale takes the property subject to senior interests |
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Term
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Definition
| Junior interests have the right to pay off any mortgage being foreclosed in order to keep their junior interests from being wiped out, making them a necessary party to any foreclosure. If they are not joined, then their interests are not wiped out by it. |
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Term
| Proceeds of foreclosure sale paid out in what order? |
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Definition
| 1) Cost of the foreclosure, including expenses and atty's fees, 2) Pay the M that was foreclosed, including accrued interest, 3) Pay off junior interests, 4) Anything left to mortgagor. Pay first one fully before paying any on the second... If there isn't enough to settle the mortgage, let the ME sue the debtor for the balance due. |
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Term
| Consequences of installment land K |
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Definition
| If the debtor misses a payment, seller can cancel the K, keep all the money paid to date, and get the property back |
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Term
| Transfers of security interests |
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Definition
| Freely transferable, but the transferee takes subject to the M. Mortgagor continue to be personally liable on the note, but grantee is not personally liable unless they specifically assume the mortgage (but will have to forfeit the property.) If grantee assumes the M, the MR continues to be liable as a surety. |
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Term
| Modification of the obligation by the ME |
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Definition
| Discharges the original MR of all liability |
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Term
| Fixture Filing not in compliance with Article 9 |
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Definition
| Security interest will become subordinate to the earlier M on the real property. If it was properly done, the supplier of the chattel can remove it without regard to any earlier M or other security interest in the prop |
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Term
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Definition
| Support from the sides. SL results if land is not supproted and for damage to improvements if the weight of the improvements didn't cause the collapse (the land would have collapsed anyways) |
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Term
| Right of Subjacent Support |
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Definition
| Support of the surface from the bottom. SL. Usually happens when the holder of mineral rights removes minerals and the surface subsides/collapses. Extends to to improvements existing when mineral rights were severed from the land, not for buildings built after the mineral rights were severed |
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Term
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Definition
| Those whose property borders on a lake or stream. Owner can use all the water needed for domestic proposes and make reasonable use for non domestic purposes |
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Term
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Definition
| Small minority. First in time takes-- anyone, not just riparian owner, who makes beneficial use of water, has the right to continue to use it and is protected from those who come later |
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Term
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Definition
| Landowner is entitled to reasonable use of ground water but landowner must use it on the property and not export it elsewhere. |
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Term
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Definition
| No majority approach. 1) Natural flow approach = reasonable steps to deal with flood water 2) Common enemy = can do anything with floodwater, whether reasonable or not. |
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