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Fee Simple Determinable (Possibility of Reverter) Terminates automatically on a given event. Words like "for" "so long as" "during" "until". Statements of motive not enough. POR is transferable, descendable, devisable.
Fee Simple Subject to Condition Subsequent (and Right of Entry) Grantor reserves the right to terminate ("right of entry") on happening of an event. Words like "provided that", "but if". Right of entry normally transferable.
Fee Simple: Determinable + Subject to Condition Subsequent (What happens?) Condition subsequent rules; forfeiture is optional at grantor's election rather than automatic. Policy disfavors forfeiture.
Fee Simple Subject to Executory Interest An estate with a condition subsequent that passes to a 3rd party on the event.
Life Estate: Rights/Duties Life tenant gets any ordinary uses and profits from the land, but can't injure remaindermen. Future interest holder may sue to enjoin such uses or recover money spent on performing life tenant's obligations.
Life Estate: Affirmative (Voluntary) Waste. (When can they use natural resources?) 1) Necessary for repair or maintenance of land 2) Land is only suitable for such use 3) Expressly or impliedly permitted by grantor Mines: Can mine existing mines but not open new ones
Life Estate: Permissive Waste (What must they do/pay for?) 1) Must preserve land and structures in reasonable state 2) Pay interest (not principal) on mortgage 3) Pay ordinary taxes on the land 4) Pay special assessments for short-timed public improvements Duty limited to profit or reasonable rent of the land
Life Estate: Ameliorative Waste (When can they alter/demolish buildings?) Common law: Never Now: Market value of future interests isn't diminished and either 1) The remaindermen don't object OR 2) A substantial permanent change in neighborhood conditions has deprived property of reasonable productivity in current form.
Leasehold Tenant: Ameliorative Waste (When can they alter/demolish buildings?) Never, even if neighborhood has changed and value increased
Reversion Estate that remains in grantor conveying less of an estate than she owns. All reversions are vested (not subject to RAP).
Remainder Future interest in 3rd party that becomes possessory on natural expiration of preceding estate - must be expressly created.
Indefeasibly Vested Remainder A remainder in an existing, ascertained person, not subject to a cond. precedent. (Not subject to divestment or diminution). Contrast to a vested remainder subject to open (kids, etc.)
Doctrine of Worthier Title If O grants "to A for life, then to the heirs of O", it becomes "to A for life" with O having a reversion. This is a rule of construction so it can be overcome with clear enough language.
Destructibility of Contingent Remainders (Common Law) Contingent Remainders are destroyed if not vested (condition not met) at the termination of preceding estate. Abolished in most places.
Rule in Shelley's Case (Common Law) If O grants "to A for life, then to A's heirs", it becomes "to A for life" in fee simple. Abolished in most places.
Executory Interest (Shifting vs. Springing) Either divests or cuts short an estate. Not vested, so subject to RAP. Springing divests the estate from the grantor. Shifting divests it from anyone else.
Rule of Convenience An open class closes when some member of the class can call for distribution. Babies in gestation get included.
Charitable Trust Must have a charitable purpose and 1) Must have indefinite beneficiaries 2) May be perpetual (no RAP unless shifting charity-to-private or vice-versa) 3) cy pres applies, allows trustees to select alternate charity due to impracticability.
Rule Against Perpetuities No interest in property is valid unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest. Contingent remainders, executory interests, vested remainders subject to open, options to purchase...
Rule Against Perpetuities: How to Strike Cut off the bad part "to A as long as no liquor consumed, then to B" becomes "to A as long as no liquor consumed", with reversion to O
Joint Tenancy Right of survivorship. Need equal TTIP: At same time, equal title, interest, and possession. Severed by an inter vivos conveyance (transferee takes as tenant in common). Judgment liens, mortgages don't sever.
Tenancy by the Entirety Marital estate akin to joint tenancy. Only severed by death, divorce, mutual agreement, or execution by a joint creditor. One spouse acting alone can't do antyhing.
Tenancy in Common Concurrent estate, no right of survivorship, can have different interests. Duty to share profits from exploiting the land and 3rd party rents but not other profits.
Leasehold: Tenancy for Years Terminates automatically. Usually L can terminate for breach of any of leases covenants or a surrender (surrender must be in writing if over 1 year) Leases over 1 year must be in writing.
Leasehold: Periodic Tenancies Automatically renewed unless notice of termination. Notice must be one full period in advance (6 months notice for yearly lease) and timed to end of period.
Leasehold: Tenancy at Will Must be express, otherwise periodic payments will make it a periodic tenancy. If L has a right to terminate, courts will give T one; but not vice-versa.
Leasehold: Hold-over Doctrine L can evict T or bind him to a new periodic tenancy. Commercial tenants held to same tenancy as past payments, up to 1 year. Residential held as month to month. Rent can be upped if L notified T before the hold-over began. Seasonal leases = no hold-over
Tenant Liability for Covenants to Repair If a T covenants to repair: 1) L remains obligated to repair damages not caused by a residential T under "implied warranty of habitability". Not so for non-residential T. 2) T Not liable to rebuild structural damage unless expressly stated.
Tenant Duties 1) To repair (not commit waste) 2) To not use premises for illegal purpose 3) To pay rent
Landlord Duties No default duty to repair/maintain 1) Duty to deliver possession 2) Quiet enjoyment: no party will interfere with T's possession (no eviction) 3) Implied Warranty of Habitability
Quiet Enjoyment Neither L nor a paramount title holder will interfere with possession (either): 1) Actual Eviction: exclude T from entire property 2) Partial Eviction 3) Constructive Eviction
Implied Warranty of Habitability Breach defined by local housing codes. Nonwaivable, only for residential T's. On breach T may: 1) Terminate the lease 2) Make repairs and offset cost with future rent 3) Abate the rent to fair rental in view of the defects 4) Pay in full and sue
Partial Eviction Excluding T from part of the premises. If it's landlord action, this relieves entire rent obligation. If 3rd party, relieves liability for the % evicted.
Constructive Eviction L does or fails to do something making the property uninhabitable, T may terminate lease and seek damages. T must vacate within reasonable time. Must be a result of L's actions.
Assignment (of Lease, by Tenant) Assignment takes full remaining term. Asignee is in privity of contract with L, both take on all duties that run with the land (including paying rent). Assignor still in privity of contract and liable for rent.
Sublease (of Lease, by Tenant) Sublease takes part of term. Sublettor not in privity of contract, not liable to L unless he expressly assumes covenants. L can terminate lease for non-payment from original T which terminates sublease too.
Assignment (during Lease, by Landlord) Once T's have reasonable notice of assignment must pay rent to new owner. All covenants that run with land go to assignee. Original landlord also still liable on these covenants made in lease.
Landlord Tort Liability to Tenant Common law: nothing. Today: Landlord must disclose any dangerous conditions he knows/should know (and is liable for any defect for furnished short-term residence).
Landlord Tort Liability to Public L is liable for public injuries where 1) knows/should know of dangerous condition 2) has reason to believe T may admit public before repairing condition 3) fails to repair condition.
Landlord-Tenant: Fixtures Any agreement is controlling. Otherwise T can remove annexed chattels by end of lease term if removal doesn't substantially damage premises, must repair any damage.
3rd Party Lien on Chattel Affixed to Land PMSI for an affixed chattel on mortgaged land wins against mortgage company if "fixture filing" recorded within 20 days after affixed to land. Otherwise first to record wins.
Easement in Gross Transferability If it's for personal enjoyment, not transferable. If it's for commercial interest (billboard etc.), transferable.
Easements by Express Grant / Reservation Must be in writing if 1+ year, comply with requirements of a deed. A grantor creates easement by reservation by reserving a right to land for some purpose, but can usually only reserve this right for himself.
3 Types of Implied Easement 1) Easement Implied by Existing Use ("Quasi-Easement") 2) Easement Implied w/o Existing Use (Subdivision Plat or Profit a Prendre) 3) Easement by Necessity
Easement Implied by Existing Use ("Quasi Easement") 1) Prior to the division of a single tract 2) Apparent and continuous use exists on "servient" part 3) Reasonably necessary for the enjoyment of "dominant" part and 4) Court determines parties intended the use to continue after division
Easement Implied w/o Existing Use a) Subdivision Plat: When lots are sold in a subdivision with reference to a map showing streets leading to lots, lot buyers have implied easements to the streets. b) Profit a Prendre: Holder of this has implied easement to pass over surface
Easement by Necessity A subdivision deprives one lot access to a public road or utility line. Owner of servient parcel has right to locate the easement by necessity.
Easement by Prescription Adverse (without permission); Open, Notorious (discoverable on inspection); Continuous and uninterupted; for statutory period. Can't get one in public land.
Adverse Possession Actual (actual entry giving exclusive possession); Hostile (adverse); Open and Notorious; Exclusive; Continuous.
License vs. Easement License is not an interest in land, is revocable by licensor at will. License is personal to licensee, any attempt to transfer results in revocation. A failed attempt to create easement creates a license (oral easement > 1 year, etc.)
Termination of Easement: Merger Easement holder gets an interest in servient tenement of equal or greater duration than the easement privilege. Easement not automatically revived if there's later separation.
Termination of Easement: Abandonment Holder of easement demonstrates by physical action an intent to permanently abandon the easement. Can't be word or non-use alone. Oral expressions + long period of non-use may qualify.
Termination of Easement: Estoppel If owner of servient estate changes position in reasonable reliance on representations or conduct of easement holder, easement terminates.
Irrevocable Licenses 1) Estoppel: Licensee invests substantial time/money in reliance of license; license lasts long enough for holder to be reimbursed by benefit. 2) License + Interest: License lasts as long as the interest.
Profits Entitles profit holder to take resources from the land; has an implied easement to enter land for this purpose. Same rules as easement but can be extinguished by surcharge - overburdening the land through misuse.
Covenants Running with the Land at Law (Real Covenants) A written promise, usually found in a deed, to do or not do something on the land. Runs with the land - subsequent owners can usually enforce or be burdened by covenants.
Equitable Servitudes A covenant, not necessarily written, that equity enforces against assignees of burdened land if they have notice, usually via an injunction.
Real Covenant: Requirements for Burden to Run 1) Intent (of original parties for burden to run) 2) Notice (Actual/Inquiry/Record) 3) Horizontal Privity (original parties shared an interest in land) 4) Vertical Privity: Successor needs entire durational interest of the covenantor 5) Touch + Concer
Real Covenant: Requirements for Benefit to Run 1) Intent (of original parties) 2) Vertical Privity (can be full estate or any smaller estate) 3) Touch and Concern
Negative Equitable Servitude: Creation by Common Scheme 2 req's: 1) Common Scheme: When subdivision sales began, there was a plan for all parcels to have same NES. Shown by recorded plat, general pattern, or oral statements to early buyers. 2) Notice (grantee must know of covenants in other deeds: A/I/R)
Equitable Servitude: Requirements for Burden to Run 1) Intent 2) Notice 3) Touch + Concern (no privity required)
Equitable Servitude: Requirements for Benefit to Run 1) Intent 2) Touch + Concern (no privity required)
Equitable Servitude: Defenses to Enforcement 1) Unclean hands 2) Acquiescence of benefited party to a violation 3) Estoppel: benefited party acts so that a RP believe covenant abandoned 4) Laches (too slow to sue) 5) Neighborhood changed so significantly enforcement would be inequitable
Doctrine of Equitable Conversion When contract signed, equity regards buyer as owner of real property. Seller's interest in proceeds are personal property. Bare legal title in seller is held in trust, but right to possession follow this, so seller can possess until closing.
Risk of Loss Before Closing Majority rule: risk of loss on buyer. If destroyed, seller must credit and insurance proceeds against purchase price from buyer.
Death of Party Before Closing Seller's interest passes as personal property, buyer's as real property. If seller dies, heirs/devisees must give up their bare legal title at closing. If buyer dies, heirs/devisees may demand conveyance at closing.
Warranty of Marketable Title (Only Until Closing) Implied covenant of marketable title at closing. Not ok: 1) Defects in Record Chain 2) Adverse Possession 3) Future interest by unborn/unascertained party 4) Encumbrances (mtg., lien) but can pay off w/ proceeds at closing 5) Existing zoning violatio
Tender of Conveyance Performance Obligation to pay and convey are concurrent conditions. Neither party in breach till other performs (even after closing date). Tender excused if other party repudiates or tender impossible (incurable unmarketable title)
Timing of Conveyance Timing not of the essence unless specified: 1) Contract so states 2) Circumstances show intent that timing of essence 3) One party gives notice of such If so, party who fails to perform at close is in breach and may not enforce contract.
Sale of Existing Land/Buildings: Liability for Defects Theories of liability: 1) Misrepresentation/Fraud: S knowingly made a false statement of material fact, B relied, it materially affected value of property. 2) Active Concealment 3) Failure to disclose: S knows/should know of serious, non-apparent defec
Sale of Existing Land/Buildings: Disclaimer General disclaimer ("as is") is not enough to overcome S liability, unless it identifies a specific type of defect ("seller not liable for defects in roof")
Title Insurance Insures good title as to the policy date and promises to defend record title if litigated. Protects only the purchaser. Does not run with land.
Deed Formalities 1) In writing 2) Signed by grantor 3) Reasonably identify the parties and land. Blank grantee is OK, blank land descrip. isn't unless specified.
Void/Voidable Deed Voidable deed only set aside if it hasn't passed to BFP, void always set aside. Void: forged, undelivered, fraud in factum. Voidable: minors, duress, mistake, fraud in inducement...
Fraudulent Conveyance A deed may be set a side if made: 1) with actual intent to hinder, delay, defraud a creditor of grantor OR 2) without receiving reasonable value, and grantor is or becomes insolvent as a result.
Rules of Deed Construction (Descriptions) 1) Natural Monuments 2) Artificial Monuments 3) Courses / Angles 4) Distances 5) Names (Blackacre) 6) Quantity (# of acres)
Boundary Cases in Deeds If deed mentions a variable boundary (like water), slow and imperceptible change changes the legal boundary. Accretion (deposit of soil) belongs to abutting owner. Avulsion (sudden change in water) doesn't change ownership rights.
Delivery of Deed Refers to grantor's intention to make a deed presently effective, even if possession postponed. Can be manual delivery, notarization by grantor, or anything showing intent to deliver. Title passes on delivery. Oral conditions ignored.
Delivery of Deed to 3rd Party, No Conditions Valid delivery where grantor tells 3rd party to give it to grantee. If there's no instructions and 3rd party is grantor's agent, no delivery has happened.
Delivery of Deed to 3rd Party w/ Conditions, Commercial Party Valid, parol evidence OK to show delivery conditional. Grantor can only revoke if condition hasn't occurred and it's contractually stopped from doing so. Title doesn't pass if grantee wrongfully gets deed before condition.
Delivery of Deed to 3rd Party w/ Conditions, Donative Transaction Donor can revoke if not contractually obligated not to unless the condition is his death. Can't revoke if condition is his death if his intent was to create a future interest in donee.
General Warranty Deed Covenants: 1) Seisin: Grantor has estate conveyed (title and possession) 2) Right to Convey (title) 3) Against (Existing) Encumbrances 4) Quiet Enjoyment: Grantee won't be disturbed by 3rd party claims of lawful title 5) Warranty 6) Further Assuranc
Breach of General Warranty Covenants (When are they breached?) Covenants of: Seisin, Right to Convey, Encumbrances: can only be breached at time of conveyance. Covenants of: Quiet Enjoyment, Warranty, Further Assurances only breached upon disturbance of grantee's possession (run w/ grantee's estate)
(Statutory) Special Warranty Deed Word "grant" creates 2 limited assurances in some states 1) Grantor hasn't conveyed same estate or any interest to anyone but grantee 2) Estate is free from encumbrances made by the grantor
Quitclaim Deed Releases whatever interest grantor has. No covenants of titles included or implied.
Estoppel by Deed If grantor purports to convey an estate she doesn't own but later gets, grantee gets the deed by estoppel. This doesn't work against BFP's, though.
Notice Statute A later BFP who doesn't have notice (actual or constructive) wins.
Race-Notice Statute A later BFP who doesn't have notice (actual or constructive) wins, if he records first.
Race Statute Rare. Whoever records first wins.
Shelter Rule A person who takes from a BFP wins whereever the BFP would have won, even if they have notice of an unrecorded conveyance.
Ademption Devise of a specifically devised piece of property fails if property is no longer in testator's estate (same with specific bequests). If part of property still in estate, remainder passes to devisee.
Benefit of Holder in Due Course Status Takes note free of personal defenses (no consideration, fraud in inducement, waiver, estoppel, payment) but not real defenses (infancy, incapacity, duress, illegality, forgery...)
Holder in Due Course Status for a Mtg. Note 1) Note is negotiable in form ("to bearer", "to the order of"...) 2) Original note indorsed and signed by payee 3) Delivered to transferee 4) Transferee takes note in good faith, for value
Payment to Original Mortgagee After Transfer of Note If note is negotiable, payment doesn't count; holder can demand payment even if mortgagor didn't have notice of transfer. If note is nonnegotiable, payment to original mortgagee is effective against transferee until mortgagor receives notice of transfer.
Transfer by Mortgagor: Assumption Clauses If grantee signs assumption agreement, he becomes primarily liable to lender, w/ original mortgagor secondarily liable as a surety. Otherwise original mortgagor fully liable. Due-on-sale clause lets lender demand full payment if mortgagor transfers.
Lien Theory Mortgagee has a security interest only, mortgagor is owner of land until foreclosure. Mortgagee cannot have possession before foreclosure.
Title Theory Mortgagee has legal title until mortgage paid; is entitled to possession on demand at any time.
Redemption in Equity Any time prior to foreclosure sale, mortgagor may redeem property by paying amount due. May have to pay full balance for an acceleration clause. Right can't be waived within mortgage.
Statutory Redemption Some states allow mortgagor to redeem property for a fixe
Foreclosure Sale Always OK by judicial sale, sometimes non-judicial sale under a power of sale. Usually an auction; the lender is permitted to bid.
Purchase Money Mortgage Priority PMM's have priority over prior non-PMMs. Subsequent mortgages might have priority under a recording act. Between 2 PMM's, seller's PMM has priority over 3rd party's PMM. Two 3rd party PMMs: first in time has priority.
Proceeds of Foreclosure Sale 1) To sale expenses, attorneys' fees, court costs 2) To principal/interest on foreclosed loan 3) To junior interests 4) To mortgagor. Mortgagee retains COA against mortgagor for deficiency.
Liability for Adjacent Lateral Support Landowner strictly liable if his excavation causes adjacent land to cave in. Only strictly liable for damaging buildings this way if the land under the building would've caved in w/o the building. Otherwise, only liable for negligent excavation.
Liability for Subjacent Support Underground occupant of land must support surface and buildings existing when sugjacent estate was created. Liability for new buildings requires negligence.
Riparian Doctrine Water belongs to those owning bordering land. Natural flow theory: A riparian owner can be enjoined from substantial diminution of water. Reasonable Use Theory: Owner can only be enjoined if use substantially interferes w/ reasonable use of another.
Prior Appropriation Doctrine (Water) Individuals acquire rights by actual use; appropriation of rights by priority of beneficial use.
Groundwater Doctrines Absolute Ownership: Land owner can take as much water as they want Reasonable Use: Same, but exporting only allowed if doesn't harm others Correlative Rights: Underground water owned as joint tenants Appropriative Rights: Priority of use is determinati
Surface Water Theories Can capture any amount. Natural Flow: Cannot alter natural drainage patterns Common Enemy: Owner can take any measures to get rid of water (usually can't damage others' land) Reasonable use: Balance utility/harm
Takings A regulation that deprives all economic use of land is a taking. One leaving land w/ very little value has balancing test: 1) social goals, 2) diminution in value, 3) owner's reasonable expectations for property
Unconstitutional Exactions Trading zoning approval for giving up land only OK if: 1) govt. demands are rationally connected to a new burden of the zoned land, 2) dedication is reasonably related in nature and extent to the impact of development.
Failure to Disclose 1) Seller knows/has reason to know of defect, 2) Defect not apparent, and 3) Defect serious, would make buyer reconsider purchase
MA Consumer Protection An unfair/deceptive act causes a person to act differently than they otherwise would. Need to file a 30 day demand letter before lawsuit (if you're an individual)
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