Barbri Review
Quiz yourself by thinking what should be in
each of the black spaces below before clicking
on it to display the answer.
Help!
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| Summary of freehold estates- Fee simple absolute; Language to create | "To A and his heirs";
"To A"
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| Summary of freehold estates- Fee simple absolute; Duration | Absolute ownership, of potentially infinite duration
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| Summary of freehold estates- Fee simple absolute; Transferability | Devisable, descendible, alienable
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| Summary of freehold estates- Fee simple absolute; Future interest | NONE
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| Summary of freehold estates- Fee tail; Language to create | "To A and the heirs of his body"
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| Summary of freehold estates- Fee tail; Duration | Lasts only as long as there are lineal blood descendants of grantee
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| Summary of freehold estates- Fee tail; Transferability | Passes automatically to grantee's lineal descendants
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| Summary of freehold estates- Fee tail; Future interest | Reversion (if held by grantor);
Remainder (if held by third party);
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| Summary of freehold estates- Defeasible fees; Fee simple determinable: Language to create | "To A so long as ...";
"To A until ...";
"To A while ...";
Language providing that upon the happening of a stated event, the land is to revert to the grantor
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| Summary of freehold estates- Defeasible fees; Fee simple determinable: Duration | Potentially infinite, so long as event does not occur
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| Summary of freehold estates- Defeasible fees; Fee simple determinable: Transferability | Alienable, devisable, descendible, subject to condition
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| Summary of freehold estates- Defeasible fees; Fee simple determinable: Future interest | Possibility of reverter (held by grantor)
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Language to create | "To A, but if X event happens grantor reserves the right to re-enter or re-take";
Grantor must carve out right of re-entry
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Duration | Potentially infinite, so long as the condition is not breached and thereafter, until the holder of the right of entry timely exercises the power of termination
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Transferability | Alienable, devisable, descendible, subject to condition
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Future interest | Right of entry/Power of termination (held by grantor)
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| Summary of freehold estates- Defeasible fees; Fee simple subject to an executor limitation: Language to create | "To A, but if X event occurs, then to B"
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Duration | Potentially infinite, so long as state contingency does not occur
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Transferability | Alienable, devisable, descendible, subject to condition
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| Summary of freehold estates- Defeasible fees; Fee simple subject to condition subsequent: Future interest | Executory interest (held by third party)
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| Summary of freehold estates- Life estate; Language to create | "To A for life";
"To A for life of B"
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| Summary of freehold estates- Life estate; Duration | Measure by life of transferee or by some other life (pur autre vie)
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| Summary of freehold estates- Life estate; Transferability | Alienable, devisable, and descendible if PUR AUTRE VIE and measuring life is still alibe
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| Summary of freehold estates- Life estate; Future interest | Reversion (if held by grantor);
Remainder (if held by third party)
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| Four categories of freehold estates | 1. Fee simple absolute,
2. Fee tail,
3. Defeasible fees (of where there are three species),
4. Life estate
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| Four categories of freehold estates- KNOW FOR BAR | Language creating estate;
Distinguishing characteristics;
Estate devisable (can it pass by will);
Estate descendible (will it pass by statute of intestacy);
Alienable (transferable inter vivos, or during holder's lifetime);
Future interests
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| Fee simple absolute | Common law words "and his heirs" are not necessary so "To A" sufficient
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| Fee simple absolute- Distinguishing characteristics | This is ABSOLUTE OWNERSHIP of potentially infinite duration;
If it freely devisable, descendible, and alienable
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| Fee simple absolute- Accompanying future interest?; O conveys to a or to a and his heirs is alive and well | NOTHING, only A has absolute ownership;
This leads us to Bruce Willis rule of property- "A living person has no heirs";
Thus, while A is alive, he only has prospective heirs so they are powerless
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| Fee tail- Distinguishing characteristics | Virtually abolished in U.S. today, never tested;
Would pass directly to grantees lineal blood descendants NO MATTER WHAT;
Today, attempted creation of fee tail creates instead FEE SIMPLE ABSOLUTE
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| Fee tail- Accompanying future interest? | Yes;
In O, the grantor, it was called reversion;
In third party, it was called remainder
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| Defeasible fees- Fee simple determinable | Grantor must use CLEAR DURATIONAL LANGUAGE;
If the stated condition is violated, forfeiture is automatic
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| Defeasible fees- Fee simple determinable; Distinguishing characteristics | This estate, like all defeasible fees, is divisible, descendible, and alienable, but always subject to the condition
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| Defeasible fees- Fee simple determinable; Paul conveys B to Ringo so long as premises used as recording studio. Ringo has? | Fee simple determinable
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| Defeasible fees- Fee simple determinable; Ringo conveys to M, who seeks to convert recording studio into bowl-a-rama. May Mick do so? | No, not without forfeiting estate
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| Defeasible fees- Fee simple determinable; Mick Jagger rule of property | You may convey less than waht you started with, but you cannot convey more; OR
"You cannot always get what you want"
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| Defeasible fees- Fee simple determinable; Accompanying future interest | It is possibility of reverter in the grantor
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| Defeasible fees- Fee simple determinable; Frank Sinatra conveys P to Orville so long as popcorn is never made on premises. Classify the interest- | Orville: Fee simple determinable so long as popcorn never made on premises
Frank: Possibility of reverter;
"FSPOR" (Frank Senatra doesn't Prefer Orville Redenbacher)
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| Defeasible fees- Fee simple subject to condition subsequent | Grantor must use clear durational language AND carve out the right to re-enter
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| Defeasible fees- Fee simple subject to condition subsequent; Ross conveys to Rachel, but if coffee is ever consumed on premises, grantor reserves the right to re-enter and re-take | Rachel: Fee simple subject to conditions subsequent
Ross: Right of entry (power of termination)
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| Defeasible fees- Fee simple subject to condition subsequent; Distinguishing characteristics | This estate is NOT automatically terminated, but if can be cut short AT GRANTOR'S OPTION, if stated condition occurs
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| Defeasible fees- Fee simple subject to condition subsequent; Accompanying future interest: "My prerogative" | Right of entry, synonymous with power of termination
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| Defeasible fees- Fee simple to executory limitation; To Barry Manilow, but if Manilow ever performs music on premises, then to Mandy | Barry: Fee simple subject to M's shifting executory interest
Mandy: Shifting executory interest
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| Defeasible fees- Fee simple to executory limitation; Distinguishing characteristics | This estate is just like the fee simple determinable only now, if the condition is broken, the estate is automatically forfeited in favor of someone other than grantor
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| Defeasible fees- Fee simple to executory limitation; Accompanying future interest? | Shifting executory interest
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| Defeasible fees- Rules of construction; Words of mere desire, hope, or intention | 1. Are insufficient to create a defeasible fee;
a. Cts disfavor restrictions on the free use of land,
B. Cts will not find a defeasible free unless clear durational language is used
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| Defeasible fees- Rules of construction; Words of mere desire, hope, or intention: "To A for purposes of constructing day care center", "To A with ope that he becomes lawyer", "To A with expectation that the premises will be used as video store" | In each of these instances, A is vested with fee simple absolute, and NOT defasible fee
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| Defeasible fees- Rules of construction; Absolute restraints on alienation | 2. Void,
a. An absolute restraint on alienation is an absolute ban on power to sell or transfer, that is not linked to a reasonable time limited purpose
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| Defeasible fees- Rules of construction; Absolute restraints on alienation: O conveys, to A so long as she never attempts to sell | Absolute restraint on alienation that is void;
A: Fee simple absolute,
O: Nothing
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| Defeasible fees- Rules of construction; Absolute restraints on alienation: O conveys, to A so long as she does not attempt to sell until year 2014, when clouds on title will be resolved | A: Fee simple determinable,
O: Possibility of reverter;
Here, restraint is linked to reasonable, time limited purpose, thus it is GOOD (not absolute restraint, just tempered)
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| Life estate | This is an estate that must be measure in explicit life time terms, and NEVER in terms of years;
Romantic estate- "Love you for all the days of my life", NOT in terms of years
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| Life estate- O conveys, to A for life | A: Life tenant b/c life estate(A is known as ),
O: Reversion(Meaning that at the end of A's lifetime, the estate reverts back to O or O's heirs)
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| Life estate- Pur autre vie; To A for life of B | A life estate measure by a life other than the grantees
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| Life estate- Pur autre vie; O conveys, to Madonna, for the life of David Letterman | Madonna: Life estate pur autrie vie,
O: Reversion (At end of David Letterman's life, the estate reverts back to O or O's heirs)
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| Life estate- Pur autre vie; O conveys to Madonna for life. Madonna then sells here entire interest to David Letterman (Remember Mick Jagger rule) | David: Life estate pur autrie vie,
O: Reversion (At the end of Madonna's life, estate reverts back to O or O's heirs)
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| Life estate- Distinguishing characteristics of life estate | Life tenant entitlement are rooted in important doctrine of WASTE
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| Life estate- Distinguishing characteristics of life estate; Life tenant entitled to- | All ordinary uses and profits from the land
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| Life estate- Distinguishing characteristics of life estate; Life tenant must not- | Commit waste (hurt future interest holders)
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste | Overt conduct causing a drop in value
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste, Voluntary waste and natural resources G/R | Life tenant must not consume or exploit natural resources on property (such as timber/oil/minerals), unless one of four exceptions [PURGE]
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste, Voluntary waste and natural resources PU exception | Prior use, meaning that prior to grant, the land was used for exploitation ;
Life tenant may continue to exploit, unless otherwise agreed;
Prior Use and Open Mines Doctrine- Limited to mines already open so life tenant must not open any new mines
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste, Voluntary waste and natural resources R exception | Repairs;
Life tenant may consume natural resources for repairs and maintenance
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste, Voluntary waste and natural resources G exception | Grant;
Life tenant may exploit if granted that right
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Voluntary or affirmative waste, Voluntary waste and natural resources E exception | Exploitation;
Land suitable only to exploit
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Permissive waste or neglect | When land is allowed to fall into disrepair;
Practice or pattern of neglect
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Permissive waste or neglect, Permissive waste and obligation to repair | Life tenant must simply maintain the premises in reasonably good repair
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Permissive waste or neglect, Permissive waste and the obligation to pay all ordinary taxes | The lief tenant to pay all ordinary taxes on the land, to extent of income or profits from land;
If there is no income or profit, life tenant is required to pay all ordinary taxes to extent of premises fair rental value
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| Life estate- Distinguishing characteristics of life estate; Three species of waste: Ameliorative waste | Life tenant must not engage in acts that will enhance that property's value, unless all future interest holders are known AND consent;
Protecting sentimental value
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| Life estate- Accompanying future interest? | If held by O, the grantor, it is called a reversion;
If held by third party, it is a remainder
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| Future interests- Future interests capable of creation in the grantor; Possibility of reverter | It accompanies only the fee simple determinable
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| Future interests- Future interests capable of creation in the grantor; Right of entry, also known as power of termination | It accompanies only the fee simple subject to condition subsequent
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| Future interests- Future interests capable of creation in the grantor; Reversion | The future interest that arises in a grantor who transfers an estate of lesser quantum than she started with, other than a fee simple determinable or fee simple subject to condition subsequent
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| Future interests- Future interests capable of creation in the grantor; Reversion: O, the holder of fee simple absolute conveys, to A for life. O conveyed less than what she started with. | She has reversion
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| Future interests- Future interests capable of creation in the grantor; Reversion: O, the holder of fee simple absolute conveys, to A for 99 years, O has conveyed less than what she started with | She has reversion
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| Future interests- Future interests capable of creation in the grantor; Reversion: O, the holder of fee simple absolute conveys, To A for life, then to B for 99 years. O still conveyed less than that with which she started | Remember that fee simple absolute can endure forever;
O has reversion
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| Future interests- Future interests in transferees; Vested remainder | 1. Indefeasibly vested remainder,
2. Vested remainder subject to complete defeasance (also known as vested remainder subject to total divestment),
3. Vested remainder subject to open
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| Future interests- Future interests in transferees; Contingent remainder | ...
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| Future interests- Future interests in transferees; Executory interest | 1. Shifting executory interest,
2. Springing executory interest
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| Future interests- Future interests in transferees; Tasks in assessing | 1. Must distinguish vested remainder (of which there are three kinds), from contingent remainders,
2. Must distinguish three kinds of vested remainders form each other,
3. Must distinguish all remainders from executory interests
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| Future interests- Future interests in transferees; Vested remainder v. Contingent remainders: What is a remainder? | Future interest created in GRANTEE that is capable of becoming possessory upon expiration of prior possessory estate created in same conveyance in which remainder is created
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| Future interests- Future interests in transferees; Vested remainder v. Contingent remainders: What is a remainder? Remainderman is sociable | Never travels alone so always accompanies a preceding estate of KNOWN FIXED DURATION;
Preceding estate is usually a lief estate or term of years
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| Future interests- Future interests in transferees; Vested remainder v. Contingent remainders: What is a remainder? Remainderman is patient and polite | Never follows defeasible fee (only preceding estates of known fixed duration);
Cannot cut short/divest a prior transferee;
Present estate is defeasible fee, future interest NOT remainder;
Instead, xecutory interest if held by someone other than grantor
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Vested | If it is BOTH created in an ascertained person and is not subject to any condition precedent
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent | If it is created in an unascertained person or is subject to condition precedent or both
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Remainder is contingent b/c it is created in as yet unborn or unascertained persons | "To A for life, then to B's first child" A is alive, B no children;
"To A for life, then to B's heirs" A alive, and B alive;
"To A for life, then those children of B who survive A" Do not know who will survive
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Remainder that is continent b/c subject to condition precedent | A condition is condition precedent when it appears BEFORE the language creating remainder or is woven into grant to remainderman
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Remainder that is continent b/c subject to condition precedent, "To A for life, then if B graduates college to B" A alive, B in high school (not satisfied condition | B: Contingent remainder,
O: Reversion (If B never graduates, O or O's heirs);
If B graduates from college during A's lifetimes, B's contingent remainder transformed automatically to indefeasibly vested remainder
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Remainder that is continent b/c subject to condition precedent, "To A for life, then B reach 21 to B" A alive, B 19 | B: Contingent remainder,
O: Reversion (If B never reaches 21, estate reverts back to O and O's heirs);
If B attains age of 21 during A's lifetime, B contingent remainder is transferred automatically to indefeasibly vested remainder
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and rule of destructibility of contingent remainders | At common law, contingent remainder was destroyed if it was still contingent at time of preceding estate ended
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and rule of destructibility of contingent remainders, "To A for life, and B reach 21 to B" A died leaving behind B who is 19- Common law | B contingent remainder is destroyed. Thus O or O's heirs would take in fee simple absolute
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and rule of destructibility of contingent remainders, "To A for life, B reach 21 to B" A died leaving behind B who is 19- Destructibility Rule | Has been abolished;
So, if B is still under 21 when A dies, hold the estate subject to B's springing executory interest. Once B 21, B takes
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and "Shelley" Rule, Common law | Only one setting;
O conveys, to A for life, then on A's death to A's heirs, A is alive;
Present and future interest merge giving A fee simple absolute;
It would apply even in the face of contrary grantor intent
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and "Shelley" Rule, Today | Virtually abolished;
When O conveys To A for life, then to A's heirs, A has life estate and O has reversion (since A could die without heirs)
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and Doctrine of Wortheir Title (Rule against remainder in grantor's heirs) | Vialbe;
Applies when O, who is alive, tries to create future interest in his heirs (unknown)
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and Doctrine of Wortheir Title (Rule against remainder in grantor's heirs)- O, who is alive, conveys to A for life, then to O's heirs | If Doctrine did not apply, A has life estate, and O's heirs have contingent remainder since O is still alive and living person has no heirs
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and Doctrine of Wortheir Title (Rule against remainder in grantor's heirs)- Void | Contingent remainder in O's heirs is void;
A has life estate and O has reversion;
Promotes free transfer of land
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| Future interests- Future interests in transferees; Remainders are vested or contingent: Contingent remainders and Doctrine of Wortheir Title (Rule against remainder in grantor's heirs)- Rule of construction (not law) | Grantor's intent controls;
If grantor clearly intends to create a contingent remainder in his heirs, grantor's intent is binding
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| Future interests- Future interests in transferees; Vested remainders: Indefeasibly vested remainder | Holder of this remainder is certain to acquire an estate in future with, no conditions attached
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| Future interests- Future interests in transferees; Vested remainders: Indefeasibly vested remainder, "To A for life, remainder to B" A is alive, B is alive | A: Life estate,
B: Indefeasibly vested remainder;
What if B predeceases A? At common law, B's future interest passes by will or intestacy
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to complete defeasance (Vested remainder subject to total divestment) | Remainderman exists, taking is not subject to any condition precedent;
However, right to possession could be cut short because of condition subsequent;
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to complete defeasance (Vested remainder subject to total divestment), Condition precedent v. Contingent remainder- Comma Rule | When conditional language in a transfer follows language that, taken alone and set off by commas, would create vested remainder, the condition is a condition subsequent, and you have vested remainder subject to complete defeasance
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to complete defeasance (Vested remainder subject to total divestment), Condition precedent v. Contingent remainder- Comma Rule, Conditional language | By contrast, if conditional language appears before language creating the remainder, condition is a condition precedent, and you have a contingent remainder
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to open | Remainder vested in group of takers, at least one of whom is qualified to take;
But each class member's share is subject to partial diminution b/c additional takers can still join in
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to open, "To A for life, then to B's children" A alive, B two children | C and D: Vested remainders subject to open
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to open, Open v. Close | Open: If others can still join,
Closed: When no others can join
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| Future interests- Future interests in transferees; Vested remainders: Vested remainder subject to open, Open v. Close- Given class closed, Common law Rule of Convenience | Class closes whenever any member can demand possession;
Setting bright line- Once A dies, unborn children shut out;
Womb rule: Child in womb shares
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| Future interests- Future interests in transferees; Remainders v. Executory interest: Executory interest | Future interest created in transferee (third party), which is not remainder and which takes effect by either cutting short some interest in another person (shifting) or in grantor or his heirs (springing)
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| Future interests- Future interests in transferees; Remainders v. Executory interest: Shifting executory interest | It always follows defeasible fee and cuts short someone other than grantor;
Violate rule against perpetuities?
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| Future interests- Future interests in transferees; Remainders v. Executory interest: Springing executory interest | Cuts short O, the grantor;
To A, if and when he marries. A unmarried. Violate RAP? No b/c will nobody end of A's life whether condition met or not
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| Rule Against Perpetuities (RAP)- The Rule | Certain kinds interest are void if there is any possibly, however, remote, that given interest may vest more than 21 years after death of measuring life
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; 1. Determine which future interests have been created by conveyance | RAP potentially applies only to contingent remainders, executory interests and certain vested remainder subject to open
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; 1. Determine which future interests have been created by conveyance: RAP does NOT apply to- | 1. Future interest in O,
2. Indefeasibily vested remainders,
3. Vested remainders subject to complete defeasance
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; 2. Identify conditions precedent to vesting of suspect future interest | What has to happen for future interest holder to take
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; 3. Find measuring life | Look for person alive at date of conveyance and ask whether person's life or death is relevant to condition's occurrence
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; 4. 21 years | Know with certainty, within 21 years of death of measuring life, if our future interest holder(s) can or cannot take? If so, good, if not future interest void;
Preceding conveyance, therefore
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; Common law is miserable | Presumes anything is possible;
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| Rule Against Perpetuities (RAP)- 4 step technique for assessing potential RAP problems; Fertile Octogenarian Rule | Presumes that a person is fertile no matter his/her age
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| Rule Against Perpetuities (RAP)- Common law; "Bad as to one, bad as to all" | A gift to an open class conditioned on members surviving to age beyond 21 violates CL;
To be valid, it must be shown that the condition precedent to every class members taking will occur within the perpetuitites period
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| Rule Against Perpetuities (RAP)- Common law; "Bad as to one, bad as to all": Disposition vesting too remotely | If it is possible that disposition might vest too remotely with respect to any member of the class, the entire class gift is void
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| Rule Against Perpetuities (RAP)- Common law; Shifting executory interest | Many violate RAP;
An executory interest with no limit on the time within which it must vest violates the RAP
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| Rule Against Perpetuities (RAP)- Common law; Shifting executory interest: Charity-to-charity exception | A gift from one charity to another will NOT violate RAP
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| Rule Against Perpetuities (RAP)- Reform of the RAP; "Wait and see" or "Second look" Doctrine | Majority;
Validity of any suspect future interest is determined on basis of facts as they now exist, at the end of the measuring life;
Eliminates the "what if" or "anything is possible" line of inquiry
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| Rule Against Perpetuities (RAP)- Reform of the RAP; Uniform Statutory Rule Against Perpetuities (USRAP) | Codifies, and in addition provides for an alternative 90 year vesting period
🗑
|
||||
| Rule Against Perpetuities (RAP)- Reform of the RAP; Both "Wait to see" and USRAP embrace: Cy Pres Doctrine | "As near as possible";
If given disposition violates rule, ct may reform it in a way that most closely matches grantor's intent while still complying with RAP
🗑
|
||||
| Rule Against Perpetuities (RAP)- Reform of the RAP; Both "Wait to see" and USRAP embrace: Reduction of any offensive age contingency to 21 years | Automatically reduce to 21 to allow transfer to survive
🗑
|
||||
| Concurrent Estates- Concurrent ownership | 1. Joint tenancy,
2. Tenancy by entirety (A marital interest b/w married partners with right of survivorship),
3. Tenancy in common (Two or more own with NO right to survivorship)
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy | Two or more own with right of survivorship
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Distinguishing characteristics | 1. Right to survivorship (when one joint tenant dies his right goes automatically to the surviving tenants),
2. Joint tenant's interest is alienable it is NOT devisible or descindible b/c right of survivorship
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Creation, Four unities (T-TIP) | Joint tenants must take their interest-
T: At the same TIME
T: By the same TITLE (in same instrument)
I: With IDENTICAL interest
P: Rights to POSSESS the whole
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Creation, Grantor must clearly express right of survivorship | Joint tenancies are disfavored;
Thus, in addition to the 4 unities, grantor must clearly state the right of survivorship
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Creation, Use of a straw | "Strawman"= middle man to create joint tenancy
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance, Severance and sale | Joint tenant can sell/transfer interest during lifetime w/o knowledge/consent of others;
One joint tenants sale severs joint tenancy as to seller's interest b/c disrupts 4 unities, so buyer tenant in common;
Joint tenancy remains in tact if more than on
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance, Doctrine of Equitable Conversion (equity regards as done that without out to be done) | In equity, a joint tenant's mere act of entering into a K for sale of her share will severe joint tenancy as to contracting parties interest
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance and partition, Voluntary agreement | "A peaceful way to end the relationship"
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance and partition, Partition in kind | Ct action for physical division of blackacre if in best interest of ALL; (Ex: Agriculture)
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance and partition, Forced sale | Ct action if in best interest of all, where blackacre is sold and proceeds divided proportionally
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance and mortgage | One joint tenant's execution of mortgage or a lien on his/her share will sever joint tenancy as to now encumbered share only in minority of states to follow the title theory of mortgages
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Joint tenancy: Severance and mortgage, Majority | Lien theory, whereby joint tenant's execution of a mortgage on his/her interest will not severe joint tenancy;
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy by the entirety: Creating | Between married partners with right to survivorship;
Only created within context of the marriage;
Arises presumptively in any conveyance to married partners unless stated otherwise;
Key- Very protected, "Can't touch this"
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy by the entirety: Very protected, Creditors | Of only one spouse can't touch this tenancy
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy by the entirety: Very protected, Unilateral conveyance | Neither tenant, acting alone, can defeat right of survivorship by unilateral transfer to another
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: 3 features | 1. Each co-tenant owners an individual part, and each has right to possess the whole,
2. Each interest is divisible, discendible, and alienable (no surviroship rights),
3. Presumption favors tenancy in common
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Possession | Each co-tenant is entitled to possess the whole;
If one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, he has committed wrongful ouster
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Rent from co-tenant in exclusive possession | Absent ouster, a co-tenant in exclusive possession is not liable to the others for rent
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Rent from third parties | A co-tenant who leases all or part of the premises to a third party must account to his co-tenants providing them their fair share of the rent income
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Adverse possession | Unless has ousted other co-tenant, one co-tenant in exclusive possession for statutory adverse possession period cannot acquire title to exclusion of others;
Why not? Hostility element absent. No hostility b/c there was no ouster
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Carrying Costs | Each co-tenant is responsible for his/her fair share of carrying costs(such as taxes and mortgage interest payments), based upon his undivided share
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Repair | Repairing co-tenant enjoys right to contribution for reasonable repairs provided that she has told the others of the need
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Improvements | During life of co-tenancy, no right to contribution for improvements;
However, at partition, improving co-tenant entitled to credit, equal to increase in value due to efforts;
At partition, "improver" bears full liability for drop in value due to effort
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Waste | Co-tenant must not commit waste;
1. Voluntary (willful destruction),
2. Permissive (neglect), and
3. Ameliorative (changes that increase value);
Co-tenant can bring a waste action during the life of the co-tenancy
🗑
|
||||
| Concurrent Estates- Concurrent ownership; Tenancy in common: Rights and duties of co-tenants, Partition | A joint tenant or tenant in common has right to bring an action for partition
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Tenancy for years (Estate for Years/Term of Years) | Lease for a fixed period of time;
When know of termination date from start, you have the tenancy for years;
No notice needed to terminate;
Term of years greater than 1 year must be in writing b/c SoF
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Periodic tenancy | Lease for successive intervals until proper notice to terminate;
Created expressly or by implication;
Terminates by notice (usu. written);
Notice- CL: At least equal to period itself unless otherwise agreed (except: more than yr= 6 mos notice)
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Periodic tenancy: Arise from implication by- No mention of duration | 1. Land leased w/no mention of duration, but provision is made for payment of rent at sent intervals;
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Periodic tenancy: Arise from implication by- Oral terms of years | 2. Oral term of years in violation of the SoF creates implied periodic tenancy measured by way rent is tendered;
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Periodic tenancy: Arise from implication by- Holdover | 3. Holdover in residential lease if L elect to hold over T wrongfully stayed on past the conclusion of original lease
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Periodic tenancy: Bar Notes | By private agreement, parties may lengthen or shorten common law prescribed notice provisions (freedom of K);
Periodic tenancy must end at conclusion of a natural lease period
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Tenancy at will | Tenancy for no fixed duration;
Unless parties expressly agree to tenancy at will, payment of regular rent will cause ct treat this as implied periodic tenancy;
Terminate by either party at any time, but reasonable demand to quite is usu. needed
🗑
|
||||
| Landlord/Tenant- Four leasehold or non-freehold estates; Tenancy at sufferance | Created when tenant has wrongfully held over, past expiration of original lease;
Give wrongdoer a leasehold estates to permit L either collect rent;
Last only until L evicts or elects to hold T to new tenancy
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's liability to third parties (tort law) | T responsible for keeping premises in reasonably good repair;
T liable for injuries sustained by 3rd parties T invited, even where L expressly promised to make all repairs
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (when lease is silent): Standard | 1. Standard: T must maintain premises and make ordinary repairs
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (when lease is silent): T must not commit waste | 2. Not commit waste-
a. Voluntary,
b. Permissive,
c. Ameliorative
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (when lease is silent): Law of fixtures | 3. Fixtures-
a. When removes commits voluntary waste,
b. Fixture is once movable chattel, by virtue of annexation (attachment) to realty objectively shoes,
c. T MUST NOT REMOVE, NO MATTER THAT HE INSTALLED
d. Passes with ownership of land
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (when lease is silent): Law of fixtures, Tenant installation | Qualifies as fixture-
1. Express agreement controls,
2. Absence of agreement, T remove chattel installed so long as removal NOT cause substantial harm to premises,
3. If removal cause substantial damage, then objective judgment T shows fixture stays pu
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (Express covenanted in lease to maintain property in good condition for duration of lease): Common law historically | At common law historically T liable for any loss to the property, including loss due to force of nature
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to repair (Express covenanted in lease to maintain property in good condition for duration of lease): Majority | T may end the lease if premises are destroyed without T's fault
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to pay rent: T breach and in possession of premises | L's only options evict through ct or continue relationship & sue for rent owed;
If L moves to evict, entitled to rent from T until T (tenant at sufferance) vacates;
L MUST NOT engage in self-help;
Self-help flatly outlawed, punishable civilly/criminall
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to pay rent: T breach duty but is out of possession (SIR), Surrender | L could choose to treat T's abandonment as implicit offer of surrender which L accepts;
Surrender: T shows by words/actions wishes to give up lease;
If unexpired term greater than 1 yr must be in writing to satisfy SoF
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to pay rent: T breach duty but is out of possession (SIR), Ignore abandonment | Hold T responsible for unpaid rent, just as if T were still there;
Option available only in a minority of states
🗑
|
||||
| Landlord/Tenant- Tenant's duties; T's duty to pay rent: T breach duty but is out of possession (SIR), Re-let premises on wrongdoer tenant's behalf | Hold T liable for any deficiency;
Majority: L must at least TRY to re-let, this is a opportunity to L to minimize losses;
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Duty to deliver possession: Majority (English Rule) | Requires that L put T in physical possession of premises;
If at start of T's lease a prior holdover T is still in physical possession of premises L has breached and new T gets damages
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied covenant of quiet enjoyment | Applies to both residential and commercial leases;
T has right to quite use and enjoyment of premises, w/o interference from L
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied covenant of quiet enjoyment: Breach by actual wrongful eviction | This occurs when wrongfully evicts T or excludes T from premises
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied covenant of quiet enjoyment: Breach of constructive eviction (SING) | 1. Substantial interference (due to L's actions or failures, chronic problem),
2. Notice (must tell L of problem and L fails to act meaningfully),
3. Goodbye (T must get out/vacate w/in reasonable time after L fails to fix problem)
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied covenant of quiet enjoyment: Breach of constructive eviction (SING), L liable for acts of other tenants | G/R: L is not liable for acts of other tenants ;
Exception: 1)L must not permit nuisance on site, 2)L must control common area
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Duty to deliver possession: Minority (American Rule) | Obliges L to deliver legal possession, but not actual possession
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability | Applies only to residential leases;
Habitability= Places of human dwellings
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: Non-waivable, Standard | Premises must be fit for basic human dwelling (bare living requirements met);
May be supplied by case law or housing codes;
Sorts of problem to trigger breach include: No- heat in winter, running water, plumbing
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: T's entitlements when breached (MRRR) | 1. Move,
2. Repair (& deduct),
3. Reduce,
4. Remain
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: T's entitlements when breached (MRRR), Move | Move out and end lease;
But, T does not have to get out
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: T's entitlements when breached (MRRR), Repair | Allowable by statute in a growing number of jurisdiction;
T may make reasonable repairs and deduct their cost from future rent
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: T's entitlements when breached (MRRR), Reduce | Or, withhold all rent until the ct determines fair rental value;
Typically, T must place withheld rent into escrow to show her good faith
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Implied warranty of habitability: T's entitlements when breached (MRRR), Remain | Remain in possession;
Pay rent and affirmatively seek money damages
🗑
|
||||
| Landlord/Tenant- Landlord's duties; Retaliatory eviction | If T lawfully reports L for housing code violation, L barred from penalizing T by, for example, raising rent/ending lease/harassing T/other reprisals
🗑
|
||||
| Landlord/Tenant- Assignment v. Sublease | In absence in lease, a T may freely transfer interest in whole (assignment) or in party (sublease);
In lease, L can prohibit T from assigning or subletting w/o L's;
However, L consents waives right to object to all future, unless L reserved right
🗑
|
||||
| Landlord/Tenant- Assignment v. Sublease; Assignment | L/T2 in privity of estate= liable to each other for original lease covenants running w/land;
L/T2 not in privity of K unless T2 assumes all promises in original lease;
L/T1 no longer in privity of estate, but remain in privity of K (secondarily liable)
🗑
|
||||
| Landlord/Tenant- Assignment v. Sublease; Sublease | L and sublessee in neither privity of estate nor privity of K;
T2 liable to T1 and vice versa (relationship between sublessee and subleasor)
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law of caveat lessee | Let T be ware;
L under NO duty to make premises safe
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law exceptions (CLAPS): Common areas | Hallways and stairwells;
L must maintain safely
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law exceptions (CLAPS): Latent defects rule | L must WARN T of hidden defects that L knows or should know about;
Merely a duty to warn, no duty to repair
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law exceptions (CLAPS): Assumption of repairs | L who voluntarily makes repairs must complete them with reasonable care;
This includes repairs made by others
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law exceptions (CLAPS): Public use rule | L who leases public spaces (convention hall/museum), and who should know, b/c of nature of defect and length of lease that T will not repair, is liable for any defects on premises
🗑
|
||||
| Landlord/Tenant- Landlord's tort liability; Common law exceptions (CLAPS): Short term lease of furnished dwelling | L is liable to any defect on site
🗑
|
||||
| Servitude- Summary; Affirmative easements: Creation | 1. Prescription,
2. Implication,
3. Necessity,
4. Grant
🗑
|
||||
| Servitude- Summary; Affirmative easements: Parties bound | Easement appurtenant is transferred automatically with dominant tenement;
Easement in gross for commercial purposes is assignable
🗑
|
||||
| Servitude- Summary; Affirmative easements: Remedy | Injunction or damages
🗑
|
||||
| Servitude- Summary; Affirmative easements: Form of servitude | Real covenants
🗑
|
||||
| Servitude- Summary; Affirmative easements: Method of creation | Writing signed by grantor
🗑
|
||||
| Servitudes- Summary; Negative easements: Creation | Can be created only by writing signed by grantor
🗑
|
||||
| Servitudes- Summary; Negative easements: Parties bound | ...
🗑
|
||||
| Servitudes- Summary; Negative easements: Remedy | Injunction or damage
🗑
|
||||
| Servitudes- Summary; Real covenants: Creation | Writing signed by grantor
🗑
|
||||
| Servitudes- Summary; Real covenants: Parties bound, Burden | Burden of promise will run to successor of burdened lost if WITHIN requirements are satisfied-
1. Writing,
2. Intent,
3. Touch & concern,
4. Horizontal and vertical privity,
5. Notice
🗑
|
||||
| Servitude- Summary; Real covenants: Parties bound, Benefit | Benefit of promise will run to successor of benefited lot is WITV-
1. Writing,
2. Intent,
3. Touch and concern,
4. Vertical privity
🗑
|
||||
| Servitudes- Summary; Real covenants: Remedy | Damages
🗑
|
||||
| Servitudes- Summary; Equitable servitude: Creation | Writing signed by grantor
🗑
|
||||
| Servitudes- Summary; Equitable servitude: Parties bound | Successors bound if WITNess-
1. Writing,
2. Intent,
3. Touch and concern,
4. Notice (privity not required)
🗑
|
||||
| Servitudes- Summary; Equitable servitude: Remedy | Injunction
🗑
|
||||
| Servitudes- Summary; Reciprocal negative servitude (general scheme doctrine): Creation, Majority | In subdivision, residential restriction contained in prior deeds conveyed by common grantor will bind subsequent grantees whose deeds contain no restriction if at start of subdividing, grantor had-
1. Common scheme,
2. Unrestricted lost holders had noti
🗑
|
||||
| Servitudes- Summary; Reciprocal negative servitude (general scheme doctrine): Creation, Minority | Will not bind subsequent grantees unless their lots are expressly restricted in writing
🗑
|
||||
| Servitude- Summary; Reciprocal negative servitude (general scheme doctrine): Parties bound | Where common scheme exists, subsequent purchasers with notice are bound
🗑
|
||||
| Servitudes- Summary; Reciprocal negative servitude (general scheme doctrine): Remedy | Injunction
🗑
|
||||
| Servitudes- Easements; Defined | The grant of a non-possery that entitles its holder to some form of use or enjoyment of anther's land called the servient tenement;
Common examples: lay utilities lines, giving right of war
🗑
|
||||
| Servitudes- Easements; Can be affirmative or negative | Affirmative: Right to do something on servient land;
Negative: Entitled holder to prevent servient land from doing something that would otherwise be permissible
🗑
|
||||
| Servitudes- Easements; Can be affirmative or negative: Negative categories (LASS) | L: Light,
A: Air,
S: Support,
S: Stream water artificial flow;
Minority view also recognizes R: Right to scenic view;
Only created expressly, by writing, signed by grantor (not natural or automatic)
🗑
|
||||
| Servitudes- Easements; Appurtenant to land or held in gross | Appurtenant: Benefits holder in physical use or enjoyment of property (it takes 2);
In gross: Confers upon holder only some personal/pecuniary advantage not related to use or enjoyment of land (servient land burdened, no benefit/dominant tenement, only 1
🗑
|
||||
| Servitudes- Easements; Transferability: Appurtenant easement | Passes automatically with dominant tenement, regardless whether it is mentioned in conveyance;
Burden also passes automatically with servient estate unless new owner is bona fide purchaser w/o notice of easement
🗑
|
||||
| Servitudes- Easements; Transferability: Easement in gross | Not transferable unless it is for commercial purposes;
Only one parcel is involved (servient land)
🗑
|
||||
| Servitudes- Easements; Creation of affirmative easement (PING) | P: Prescription (lease common)
I: Implication,
N: Necessity,
G: Grant (most common)
🗑
|
||||
| Servitudes- Easements; Creation of affirmative easement (PING): By prescription | An easement may be acquired by satisfying the elements of-
C: Continuous use for statutory period,
O: Open and notorious use,
A: Actual use,
H: Hostile use (w/o servient owners consent);
Permission defeats acquisition, requires use be hostile
🗑
|
||||
| Servitudes- Easements; Creation of affirmative easement (PING): By implication (easement implied from existing use) | Ct may imply easement if-
1. Previous use was apparent, and
2. Parties expected it would continue b/c it is reasonably necessary to dominant lands use and enjoyment
🗑
|
||||
| Servitudes- Easements; Creation of affirmative easement (PING): By necessity | Landlocked setting;
An easement of right of way will be implied by necessity if grantor conveys portion of his land with no way out, except over part of his remaining land
🗑
|
||||
| Servitudes- Easements; Creation of affirmative easement (PING): By grant | An easement to endure for more than 1 yr must be in writing that complies with formal elements of deed;
B/c of SoF;
Writing evidence easement is called deed of easement
🗑
|
||||
| Servitudes- Easements; Scope of easement determined by- | Terms of the grant or the conditions the created it;
Unilateral expansion NOT allowed
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Estoppel | Servient owner materially changes his/her position in reasonable reliance on easement holder's assurance that easement will NOT be enforced
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Necessity | Easement created by necessity expire as soon as that need ends;
However, if easement, attributable to necessity, was nonetheless created by express grant it won't end automatically when need ends
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Destruction of servient land | Ends easement, other than through willful conduct of servient owner
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Condemnation of servient estates | By eminent domain ends the easement
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Release | Written release, given by owner to servient owner
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Abandonment | Easement holder must demonstrate by physical action intent to never use easement again;
Abandonment requires physical action by easement holder
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Merger doctrine (Unity of ownership) | Easement extinguished when title to easement and title to servient land becomes vested in same person;
If complete unity of title achieved, easement is extinguished, even though may be later separation of title easement not revived
🗑
|
||||
| Servitudes- Easements; Termination of an easement (END CRAMP): Prescription | Servient owner may extinguish easement by interfering with it in accordance with elements of adverse possession;
Remember COAH
🗑
|
||||
| Servitudes- License; Defined | Mere privilege to enter another's land for some delineated purpose
🗑
|
||||
| Servitudes- License; Licenses not subject to | Statute of frauds;
Thus, do not need a writing to create a license
🗑
|
||||
| Servitudes- License; Licenses are freely revocable | At the will of the licensor unless estoppel applies to bar revocation
🗑
|
||||
| Servitudes- License; Classic license cases | Ticket case: Tickets create freely revocable licenses;
Neighbors talking by fence: Oral easement not allowed b/c SoF so revocable license;
Estoppel: Apply to bar revocation only when licensee has invested in reasonable reliance on license's continuati
🗑
|
||||
| Servitudes- Profit | Entitles holder to enter servient land and take from it soil or minerals within soil such as timber, minerals, or oil
🗑
|
||||
| Servitudes- Profit; Share | Same as easements
🗑
|
||||
| Servitudes- Covenant; Defined | Promise to do or not do something related to land;
It is unlike easement b/c it is not grant of property interest, but rather contractual agreement or promise regarding land
🗑
|
||||
| Servitudes- Covenant; Restrictive covenants | Covenants can be negative;
Promise to refrain from doing something related to land
🗑
|
||||
| Servitudes- Covenant; Affirmative covenant | Promise to do something related to land
🗑
|
||||
| Servitudes- Covenant; Covenant v. equitable servitude | Money damages= construe as covenant (remedy at law);
Injunction= construe equitable servitude (equitable remedy)
🗑
|
||||
| Servitudes- Covenant; Covenant parlance | One tract is burdened by promise and another is benefits;
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN) | 1. Writing,
2. Intent,
3. Touches and concerns the land,
4. Horizontal and vertical privity,
5. Notice;
Harder than benefit to run so try the burden side first
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Writing | Original promise b/w original parties was in writing
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|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Intent | Original parties intended that the covenant would run;
Cts are generous in finding requisite intent
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|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Touches and concerns the land | Promise must affect parties' legal relations as landowner, and not simply as members of the community at large;
Covenant to pay money to be used in connection w/land and covenant to compete do touch and concern land
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|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Horizontal and vertical privity- Horizontal | Nexus b/w original parties;
Requires that they be in succession of estate, meaning they were in a grantor/ee, landlord/tenant, mortgagor/ee relationship;
(Likely sticking point);
Usu. on bar as consequence of parties grantee/or relationship
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|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Horizontal and vertical privity- Vertical | Nexus b/w originally burdened party and originally burdened party's successor;
Simply requires some hostile nexus, such as K/divise (will)/descent (heir);
Only time vertical privity absent is if A-1 acquired her interest through adverse possession
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|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Burden (WITHIN), Notice | Successor had notice of promise when took land
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Benefit (WITV) | Standing to bring suit-
1. Writing,
2. Intent,
3. Touch and concern,
4. Vertical privity;
Horizontal privity not required for benefit to run
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Benefit (WITV), Writing | Original promise b/w original parties was in writing
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Benefit (WITV), Intent | Original parties intended benefit would run
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Benefit (WITV), Touch and concern | Promise affects the parties as land owners
🗑
|
||||
| Servitudes- Covenant; Covenant parlance capable of binding successors (run w/land): Benefit (WITV), Vertical privity | Non-hostile nexus b/w original party and original party's successor
🗑
|
||||
| Servitudes- Equitable servitude; Defined | Equitable servitude is promise that equity will enforce against successors who had notice of the promise;
It is accompanied by injunctive relief
🗑
|
||||
| Servitudes- Equitable servitude; Bind successors (WITNES) | 1. Writing,
2. Intent,
3. Touch and concern,
4. Notice;
Privity not required
🗑
|
||||
| Servitudes- Equitable servitude; Bind successors (WITNES), Writing | Generally, original promise was in writing;
Not always
🗑
|
||||
| Servitudes- Equitable servitude; Bind successors (WITNES), Intent | Parties intended promise would bind successors
🗑
|
||||
| Servitudes- Equitable servitude; Bind successors (WITNES), Touch and concern | Parties affects the parties as land owners
🗑
|
||||
| Servitudes- Equitable servitude; Bind successors (WITNES), Notice | Successors of the burdened land had notice of the promise
🗑
|
||||
| Servitudes- Equitable servitude; Implied equitable servitude: General and common scheme doctrine | Two elements-
1. When sales began, subdivider (A) had a general scheme of residential development which included Ds lot,
2. Defendant lotholder (B) had notice of the promise contained in prior deeds-
a. Actual,
b. Inquiry,
c. Record
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|
||||
| Servitudes- Equitable servitude; Implied equitable servitude: General and common scheme doctrine, Fact pattern | Subdivides land and sales. Some deeds state covenant for residential use, and other for commercial use do not state covenant. Enjoin from use lot for commercial use? Yes, general/common scheme or reciprocal negative (implied equitable) servitude
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|
||||
| Servitudes- Equitable servitude; Implied equitable servitude: General and common scheme doctrine, Defendant lotholder (AIR) | A: Actual notice (literal knowledge of earlier promise),
I: Inquiry notice (Neighborhood conforms to common restriction, lay of the land),
R: Record notice (notice sometimes imputed to buyers on basis of public docs, less burdensome to title searcher)
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|
||||
| Servitudes- Equitable servitude; Equitable defenses to enforcement: Changed conditions | Changed circumstances alleged by party seeking release from the terms of an equitable servitude must be so pervasive that entire area has changed;
Mere pockets of limited change are never good enough
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|
||||
| Adverse Possession- Basic concept | Possession for a statutorily prescribed period of time can, if certain elements are met right then into title
🗑
|
||||
| Adverse Possession- Elements | 1. Continuous,
2. Open and notorious,
3. Actual,
4. Hostile;
State of mind irrelevant
🗑
|
||||
| Adverse Possession- Elements; Continuous | Uninterrupted for statutory period
🗑
|
||||
| Adverse Possession- Elements; Open and notorious | Sort of possession that usual would make under circumstances
🗑
|
||||
| Adverse Possession- Elements; Actual | Entry must be literal;
Won't allow for symbolic form of entry (no declaration of intent manifested by letter)
🗑
|
||||
| Adverse Possession- Elements; Hostile | Possessor does not have true owners consent to be there
🗑
|
||||
| Adverse Possession- Tacking | One adverse possessor may tack on to his time with land his predecessor's time, so long as there is privity, which is satisfied by any non-hostile nexus, such as blood/K/deed/will;
NOT allowed when there has been an ouster
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|
||||
| Adverse Possession- Disabilities | Statute of limitation will not run against true owner who is afflicted by disability at the start of the adverse possession;
Common disabilities include insanity/infancy/imprisonment
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|
||||
| Land Conveyance- The purchase and sale of real estate; Every conveyance of real estate consists of two-step process | 1. Land K, which endures until step 2,
2. Closing, where deed becomes our operative document
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, SoF- Standard | Must be in writing, signed by the party to be bound (by D, charged), describing blackacre, and stating some consideration
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, SoF- Amount of land recited is more than actual size of parcel | Remedy- Specific performance with pro rata reduction in price
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, SoF- Exception | Doctrine of Part Performance (equity intervenes for oral K):
1. Takes possession,
2. Remits all or part of price,
3. Makes substantial improvements;
Must have 2 of 3
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Risk of loss | Apply equitable conversion;
Equity regards as done, that which ought to be done;
Once K signed, B own's the land subject of course to condition that he pay purchase price at closing
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Risk of loss- Destruction | If in interim b/w K and closing, Blackacre destroyed through no fault of either party B bears risk of loss unless K says otherwise
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- Marketable title | Seller promises to provide at the closing;
Standard: Title free from reasonable doubt;
Free from law suits and threat of litigation
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- Unmarketable title | 1. Adverse possession,
2. Encumbrances,
3. Zoning violation
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- Unmarketable title, Adverse possession | If even part of the title rests on adverse possession, it is unmarketable;
Seller must be able to provide good record title
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- Unmarketable title, Encumbrances | Marketable title means unencumbered fee simple;
Thus, servitudes and mortgages render title unmarketable, unless buyer has waived them;
Seller right to satisfy outstanding mortgage at closing, with proceeds so not unmarketable if parties understand
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- Unmarketable title, Zoning violations | Umarketable when blackacre violates zoning ordinance;
Only violation of zoning ordinance
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- False statements of material facts | Seller promises not to make any false statements of material facts
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- False statements of material facts, Majority | States now hold seller liable for failure to disclose latent material defects;
Example: Material lies and material omissions
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, Implied promises- False statements of material facts, General disclaimer of liability | "Property sold as is" or "with all faults";
Disclaimer won't excuse seller from liability from fraud, or failure to disclose
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, No implied warranties of fitness or habitability | "Caveat emptor": Buyer be ware
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: Land K, No implied warranties of fitness or habitability- Exception | Implied warranty of fitness and workmanlike construction applies to sale of new home by a builder/vendor
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing | Controlling document is deed;
Deed passes legal title from seller to buyer
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD) | LEA: Lawful execution of deed, and
D: Deliver
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Lawful execution of deed | Standard: Must be writing signed by grantor;
Deed need not recite consideration, nor must consideration pass to make a deed valid;
Description: Does not have to be perfect, nonetheless requires unambiguous with good LEAD
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement satisfied | Satisfied when grantor physically or manually transfers the deed to the grantee;
Permissible to use mail, agent, or messenger
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|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement not require | Not require actual physical transfer of instrument itself;
Test of present intent: Did grantor have present intent to be bound irrespective of whether or not deed was handed over
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement expression of rejection by recipient | Defeats delivery
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement transferred to grantee | If a deed, absolute on its face, is transferred to grantee with an oral condition drops out (not provable) and delivery is done
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement by escrow | Grantor may deliver an executed deed to third party known as escrow agent, w/instructions that the deed be delivered by grantee once certain conditions met;
Once conditions met title passes to grantee
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, How deed passes legal title (LEAD)- Delivery requirement by escrow advantage | If grantor dies or becomes incompetent or is otherwise unavailable before express conditions are met title still passes from escrow agent to grantee
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, Covenants for title and types of deed- Quitclaim | It contains no covenants;
Grantor isn't even promising has title to convey;
This is worst deed buyer could hope for;
Grantor did implicitly promise in the land K to provide marketable title AT CLOSING, but any problems post closing seller off hook
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, Covenants for title and types of deed- General warranty deed | Best deed b/c warrants against all defects in title incl. due to grantors predecessors;
General warranty deed typically contains 6 covenants;
Present covenant breached at time of delivery;
Future covenant not breached until grantee disturbed in possess
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, Covenants for title and types of deed- General warranty deed present covenants | SOL for breach of present covenant begin to run instant of delivery;
Covenant-
1. Of seisin (promise own estate),
2. Of right to convey (power to transfer, no temporary restraint on alienation/disability),
3. Against encumbrances (no servitudes/liens)
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, Covenants for title and types of deed- General warranty deed future covenants | SOL for breach will not begin to run until future date;
Covenant-
1. For quiet enjoyment (not disturbed by 3rd party claim),
2. Of warranty (grantor promise to defend),
3. For further assurance (grantor promises what is needed in future to perfect tit
🗑
|
||||
| Land Conveyance- The purchase and sale of real estate; Two-step process: The closing, Covenants for title and types of deed- Statutory special warrant deed | Statute in many states, deed contains promises grantor makes ONLY ON BEHALF OF HIMSELF-
1. Grantor promises no conveyed blackacre to anyone but grantee, or
2. Blackacre free from encumbrances made by grantor;
No representation on behalf of predecessors
🗑
|
||||
| The Recording System- Rules; Notice jurisidction | If B is bona fide purchaser, and we in a NOTICE jurisdiction, B wins regardless whether or not she records before A does
🗑
|
||||
| The Recording System- Rules; Race-notice jurisdiction | If B is bona fide purchaser and we are in a race-notice jurisdiction, B wins if she records property before A does
🗑
|
||||
| The Recording System- Recording acts | Exist to protect only bona fide purchasers and mortgagees (creditors)
🗑
|
||||
| The Recording System- Bona fide purchaser | One who-
1. Buys blackacre for value, and
2. Without notice that someone else got there first
🗑
|
||||
| The Recording System- Routine value questions; Bargain basement sale | Remits substantial pecuniary consideration then buyer of value
🗑
|
||||
| The Recording System- Fact pattern | O conveys blackacre to A. Later, O conveys blackacre, the same parcel, to B. O double dealer, skipped town. Battle of A v. B. Who wins? Notice v. race-notice
🗑
|
||||
| The Recording System- Forms of notice (AIR); Actual notice | Prior to B's closing, B learns of A
🗑
|
||||
| The Recording System- Forms of notice (AIR); Inquiry notice (constructive): Exam of blackacre | Whether he looks or not, B is on inquiry notice of whatever an exam of blackacre would show;
Buyer of real estate has duty to inspect before transfer of title
🗑
|
||||
| The Recording System- Forms of notice (AIR); Inquiry notice (constructive): Reference to unrecorded transaction | If recorded instrument makes reference to an unrecorded transaction grantee is on inquiry notice of whatever a reasonable follow up would show
🗑
|
||||
| The Recording System- Forms of notice (AIR); Record notice (constructive) | B is on recorded notice of A's deed if at the time B takes A's deed was recorded properly
🗑
|
||||
| The Recording System- Routine value questions; Case of doomed donee | Recording statutes do not protect donees, heirs, devisees, unless shelter rule applies
🗑
|
||||
| The Recording System- Recording statutes; Notice statute | A conveyance of an interest in land (O to A) shall not be valid against any subsequent purchaser for value (B), w/o notice thereof, unless the conveyance is recorded (A)
🗑
|
||||
| The Recording System- Recording statutes; Race-notice statute | Any conveyance of an interest (O to A) in land shall not be valid against any subsequent for value (B), w/o notice thereof, whose conveyance is first recorded (B)
🗑
|
||||
| The Recording System- Recording statutes; Race-notice statute: To prevail | B must-
1. Bona fide purchaser, and
2. Win the race to record
🗑
|
||||
| The Recording System- Recording statutes; Notice statute: Bona fide purchaser | If, at time B takes, he is bona fide purchaser, he wins;
It won't matter that A may ultimately record first, before B does;
It won't matter, in A v. B contest, that B never records
🗑
|
||||
| The Recording System- Chain of title problems; Shelter rule | One who takes from BFP will prevail against any entity that transferor/BFP would have prevailed against;
Transferee "takes shelter" in status of her transferor, thereby steps into shoes of BFP even though fails to meet requirements
🗑
|
||||
| The Recording System- Chain of title problems; Problem of wild deed | If deed, entered on the records (A to B), has a grantor unconnected to chain of title (O to A), the deed is wild deed;
It is incapable of giving record notice of its existence
🗑
|
||||
| The Recording System- Chain of title problems; Estoppel by deed | One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance if he later acquires that previously transferred interest
🗑
|
||||
| Mortgages- Defined | Conveyance of security interest in land, intended by parties to be collateral for the repayment of a debt
🗑
|
||||
| Mortgages- Creating | Union of two elements-
1. Debt, and
2. Voluntary lien in debtors land to secure debt;
Debtor: Mortgagor,Creditor: Mortgagee
🗑
|
||||
| Mortgages- Creating; Legal mortgage | Mortgage typically must be in writing to satisfy SoF;
AKA- note, mortgage deed, deed of trust, sale lease back, security interest in land
🗑
|
||||
| Mortgages- Equitable | As between immediate parties parol evidence is admissible to show parties intent;
Look to presence of third party (sue for fraud and sale proceeds)
🗑
|
||||
| Mortgages- Parties' rights | Unless and until foreclosure, debtor/mortgagor has title and right to possess;
Creditor/mortgagee has a lien
🗑
|
||||
| Mortgages- Transfer parties interests | Mortgage automatically follows properly transferred note
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Endorsing & Deliver | Endorse and deliver note to transferred
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Executing separate doc of assignment | ...;
If note endorsed and delivered, transferee eligible to become holder in due course(takes note free of any personal defenses that could have been raised against original creditor)
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Executing separate doc of assignment, Personal defenses | Include- lack of consideration, fraud or inducement, unconscionability, waiver, estoppel;
Holder in due course may foreclose mortgage despite personal defense, but subject to real defenses maker might raise
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Executing separate doc of assignment, Real defenses (MAD FIFIIII) | M: Material
A: Alteration
D: Duress
F: Fraud
I: In the
F: Factum (lie about instrument)
I: Incapacity
I: Illegality
I: Infancy
I: Insolvency
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Executing separate doc of assignment, Criteria 1-3 | 1. Note must be negotiable (made payable to name mortgagee),
2. Original note must be indorsed, signed by mortgagee,
3. Original note must be delivered to transferee (photocopy unacceptable)
🗑
|
||||
| Mortgages- Transfer parties interests; Creditor/mortgagor can transfer interest by: Executing separate doc of assignment, Criteria- | 4. Transferee must take note in good faith w/o notice of any illegality,
5. Transferee must pay valuefor note (some amt. more than nominal)
🗑
|
||||
| Mortgages- Transfer parties interests; Debtor/mortgagor | Recording statutes protect mortgagees;
If O, our debtor/mortgage, sells Blackacre, which is now mortgaged;
Lien remains on land if properly recorded;
All recording statutes apply to mortgages as well as deeds so later buyer takes subject to recorded li
🗑
|
||||
| Mortgages- Transfer parties interests; Debtor/mortgagor: Notice state | Buyer takes subject to lien b/c buyer has record notice of it;
If jurisdiction matters, Buyer wins if BFP when took and prior grantee or mortgagee has not yet recorded
🗑
|
||||
| Mortgages- Transfer parties interests; Debtor/mortgagor: Race-notice state | Buyer takes subject to lien b/c buyer has record notice and win race to record;
🗑
|
||||
| Mortgages- Transfer parties interests; Personal liability of debt | O, debtor/mortgage, sells Blackacre to B;
🗑
|
||||
| Mortgages- Transfer parties interests; Personal liability of debt: Subject to mortgage | B assume no personal liability, only O is personally liable, but if recorded mortgage sticks with the land, thus if O doesn't pay mortgage may be foreclosed
🗑
|
||||
| Mortgages- Transfer parties interests; Personal liability of debt: Assumed mortgage | Assumed mortgage: Both O & B personally liable, B primarily liable, O remains secondarily liable
🗑
|
||||
| Mortgages- Foreclosure | Mortgagee must foreclose by proper judicial action
At foreclosure, land is sold;
Sale proceed go to satisfying debt
🗑
|
||||
| Mortgages- Foreclosure; Proceeds less than amount owed | Mortgagee brings deficiency judgment against debtor
🗑
|
||||
| Mortgages- Foreclosure; Proceeds more than amount owed (surplus) | Junior liens paid in order of priority, remaining surplus goes back to debtor
🗑
|
||||
| Mortgages- Effect of foreclosure on various interests; Terminate interests | Terminates interest junior to mortgage, but not affect senior interests;
Junior lien holder no longer look to Blackacre for satisfaction once foreclosure over
🗑
|
||||
| Mortgages- Effect of foreclosure on various interests; Terminate interests: Interest subordinate | Interests subordinate to those of foreclosing party are necessary parties to foreclosure action
🗑
|
||||
| Mortgages- Effect of foreclosure on various interests; Terminate interests: .... | Debtor/mortgagor considered a necessary party and must be joined, particularly if creditor wishes to proceed against debtor for personal deficiency judgment
🗑
|
||||
| Mortgages- Effect of foreclosure on various interests; Terminate interests: Failure to include necessary party | Results in preservation of party's claim, despite foreclosure and sale;
If necessary party not joined, his mortgage remains on the land
🗑
|
||||
| Mortgages- Effect of foreclosure on various interests; Senior interest | Foreclosure does not affect;
Buyer at sale takes subject to interest;
Buyer is NOT personally liable on senior debt, but practical matter if senior mortgage is not paid, sooner or later, senior creditor will foreclose
🗑
|
||||
| Mortgages- Priorities; As creditor | Must record;
Until properly record mortgage you have no priority
🗑
|
||||
| Mortgages- Priorities; Once recorded | Priority determined by norm of first in time, first in right
🗑
|
||||
| Mortgages- Priorities; Purchase money mortgage | A mortgage give to secure a loan that enables debtor to acquire encumbered land
🗑
|
||||
| Mortgages- Priorities; Purchase money mortgagee's superpriority | Purchase money mortgagee's extension of value, debtor would not have come to acquisition of reality in first place;
"Floating lien": after acquired collateral clause permissible
🗑
|
||||
| Mortgages- Priorities; Subordination agreements | Are allowed;
Senior creditor may agree to subordinate its priority to a junior creditor;
Allow private sidebar arrangements
🗑
|
||||
| Mortgages- Redemption; In equity | Equitable redemption is universally recognized up to date of sale;
At any time prior to foreclosure sale debtor can try to redeem the land
🗑
|
||||
| Mortgages- Redemption; In equity: Valid foreclosure | Once taken place the right to equitable redemption is gone
🗑
|
||||
| Mortgages- Redemption; In equity: How exercised? | By paying off the missed payments, plus interest, plus costs
🗑
|
||||
| Mortgages- Redemption; In equity: Acceleration clause | Permits mortgagee to declare full balance due in event of default;
If mortgage contains acceleration clause the full balance, plus accrued interest, plus costs must be paid
🗑
|
||||
| Mortgages- Redemption; In equity: Waiver | No, not in mortgage instrument;
Prohibited- It would clog the equity of redemption
🗑
|
||||
| Mortgages- Redemption; Statutory redemption | Gives debtor/mortgagor statutory right to redeem for some fixed period AFTER foreclosure sale has occurred (6 mos to 1 yr)
🗑
|
||||
| Mortgages- Redemption; Statutory redemption: Applies | After foreclosure;
Amount to be paid usu. foreclosure sale price rather than original debt
🗑
|
||||
| Mortgages- Redemption; Statutory redemption: Mortgagor have right | Possess Blackacre during statutory period
🗑
|
||||
| Mortgages- Redemption; Statutory redemption: Mortgagor redeems effect is | Nullify the foreclosure sale (undone)
🗑
|
||||
| Lateral Support- Land is improved | Improved by building and adjacent landowner's excavation causes improved land to cave in, excavator liable only if negligent
🗑
|
||||
| Lateral Support- Strict liability | Does not attach to excavator's actions unless P shows that b/c D's actions P improved lands would have collapsed, even in its natural state;
P must show improvements did not contribute to land collapse
🗑
|
||||
| Water Rights- Allocation of water in water courses (streams, rivers, lakes); Riparian doctrine | Water belongs to those who own land ordering watering course;
People are known riparians, who share right of reasonable use of water;
One riparian liable if his/her use unreasonably interferes with others use
🗑
|
||||
| Water Rights- Allocation of water in water courses (streams, rivers, lakes); Prior appropriation doctrine | Water belongs initially to state, but right to divert and use acquired by an individual, regardless whether or not he happens to be riparian owner
🗑
|
||||
| Water Rights- Allocation of water in water courses (streams, rivers, lakes); Prior appropriation doctrine: Rights determined by | Priority of beneficial use;
Norm of allocation first in time, first in right;
Any productive or beneficial use, including use for agriculture, sufficient to create appropriation right
🗑
|
||||
| Water Rights- Ground water | Water beneath surface of earth that is not confined to known channel;
Surface owner entitled to make reasonable use of groundwater so use must NOT be wasteful
🗑
|
||||
| Water Rights- Surface water | From rain, springs, melting snow, and have not yet reached a natural watercourse or basin
🗑
|
||||
| Water Rights- Surface water; Common enemy rule | Surface water is a nemesis;
Landowner may change drainage or make other changes or improvements to combat the flow of surface water;
Many cts modified to prohibit unnecessary harm to others land
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| Possessor's Rights- Trespass | Invasion of land by tangible physical object;
To remove bring an enjectment action
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| Possessor's Rights- Private nuisance | Substantial and unreasonable interference with another use and enjoyment of land
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| Possessor's Rights- Private nuisance; Nuisance and hypersensitive P | Specialized use (heightened sensitivities), no nuisance
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|
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| Eminent Domain- Defined | 5th amendment power for government to take property for public use in exchange for just compensation;
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| Eminent Domain- Explicit takings | Acts of governmental condemnation;
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| Eminent Domain- Implicit or regulatory takings | A governmental regulation, that although not intended to be taking, has same effect;
Economic wipe out of investment
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| Eminent Domain- Remedy for regulatory taking | Government must either-
1. Compensate owner, or
2. Terminate regulation and pay owner for damages that occurred while in effect
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|
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| Zoning- Defined | Pursuant to its police powers, government may enact statutes to reasonably control land use
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|
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| Zoning- Variance | Principals means to achieve flexibility in zoning;
Proponent must show- 1. Undue hardship, and 2. Variance won't decrease neighboring property values;
Granted or denied by administrative action (typically zoning board)
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|
||||
| Zoning- Non-conforming use | A once lawful, existing use now deemed non-conforming by new zoning ordinance;
Cannot be eliminated all at once unless just compensation is paid
It could be deemed an unconstitutional taking
🗑
|
||||
| Zoning- Unconstitutional exaction; Defined | Exactions are those amenities government seeks in exchange for granting permission to build;
If not, exaction unconstituional
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|
||||
| WY- Estates in land; Present possessor estates: Fee tail | Abolished;
A gift or grant to a person and the heirs of his body conveys an absolute fee
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|
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| WY- Estates in land; Present possessor estates: Life estates by marital right (Legal life estate) | Abolished dower and curtesy
🗑
|
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| WY- Estates in land; Future interests: Shelley's Case | Rule against remainder in grantee's heirs;
Abolished
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|
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| WY- Estates in land; Future interests: Doctrine of worthier title | Abolished
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|
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| WY- Estates in land; Concurrent estates: Joint tenancy, Creation | Express language required,
Ineffective attempt to create tenancy by entirety generally gives right to tenancy in common;
However, if conveyance includes express right of survivorship, joint tenancy created
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|
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| WY- Estates in land; Concurrent estates: Joint tenancy, Transactions that may not result in severance | Mortgages;
Lien theory state;
One joint tenant execution of mortgage on her interest does not cause severance
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|
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| WY- Estates in land; Concurrent estates: Joint tenancy, Tenancy by entirety | Arises presumptively in any conveyance made to husband and wife
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|
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| WY- Landlord and tenant; Nature of leasehold: Periodic tenancies, Creation | By implication and operation of law;
Only implied tenancy is tenancy at sufferance;
Does not arise by implication or operative law
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|
||||
| WY- Landlord and tenant; Nature of leasehold: Tenancy at will | Generally held tenancies at will do not arise in WY
🗑
|
||||
| WY- Landlord and tenant; Nature of leasehold: Forcible entry statutes | Tenants who hold over their terms or fail to pay rent for three days after it is due or subject to proceeding for forcible entry and detainer process
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Residential Rental Property Act, Residential tenants have duty to NOT- 1. | Residential tenants have duty to NOT-
1. Intentionally/negligently destroy, deface, damage, impair, or remove any part of residential unit or knowingly permit such acts,
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Residential Rental Property Act, Residential tenants have duty to NOT- 2. | 2. Interfere with anther's peaceful enjoyment of residential property, or
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Residential Rental Property Act, Residential tenants have duty to NOT- 3. | 3. Unreasonably deny access, refuse entry, or withhold consent to entry residential rental unit to the owner, agent, or manager for purpose of making repairs to or inspecting unit and showing until for rent or sale
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Rent deposits | L must return security deposit or provide written description and itemized list of deduction to tenant within 30 days after termination of rental agreement, or 15 days after receiving tenant's new mailing address, which ever is later
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Utility deposits | Not applied to outstanding utility charges must be refunded within 10 days;
If landlord does not comply with deposit provisions, tenant may recover full deposit and ct costs
🗑
|
||||
| WY- Landlord and tenant; Tenant duties and landlord remedies: Landlord remedies, Tenant on premises but fail to pay rent | If T does not vacate premises as required by ct order, sheriff may remove T's possessions and prevent tenant from reentering premises w/o further action by ct
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|
||||
| WY- Landlord and tenant; Landlord duties and tenant's remedies: Implied warranty of habitability | RRPA imposes L duty provide/maintain rental units safe/sanitary/habitable condition;
If T reasonable belief not, must provide L written notice of defective condition & corrective action;
L 3 days after notice commence corrective action or T seek redres
🗑
|
||||
| WY- Landlord and tenant; Landlord duties and tenant's remedies: Remedies | After notice L unreasonably refuses or fails to use diligence to correct unsafe condition, ct may award T cost damages and affirmative relief order L make repair or terminate lease;
Damages- rent improperly retained or collected, not atty fees
🗑
|
||||
| WY- Landlord and tenant; Tort liability of L and T: Modern trend, General duty of reasonable care | Personal injuries occurring on rental property, L duty of reasonable care under circumstances;
T and guests who cannot recover under RRPA, may recover for L ordinary negligence in personal injury action
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, Express grant | Recorded express grant must specifically describe location of easement;
If not, or right to locate at later date is valid for ONLY 1 yr from date of execution
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, By necessity | NOT recognized in WY
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, By prescription | Period of time necessary is 10 yrs;
Disfavored by WY
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, Adverse- Presumption | Party's use of easement presumed permissive absent evidence of adverse use;
Rebut: claimant burden establish hostile and adverse use conveyed to owner of subservient property in clear and unequivocal
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, Adverse- Intent | Claimant subjective intent irrelevant
🗑
|
||||
| WY- Rights in land of another; Easements: Creation, Adverse- Initially permitted | Even if use of property initially permitted, use may become adverse if notice given to property owner that user intends to make property his own
🗑
|
||||
| WY- Rights in land of another; Easements: Scope, Absence of location | Not limited to survey;
Void after 1 yr unless adequate description recorded w/in time;
Not stating location= floating
🗑
|
||||
| WY- Rights in land of another; Easements: Scope, Use of servient estate- Gates | Grant of right-of-way w/o reservation of right to maintain gates not necessarily preclude servient estate owner from having;
Unless grant expressly says open or prohibition, may maintain gate across easement if necessary or not unreasonably interfere
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|
||||
| WY- Rights in land of another; Covenants running with land at law: Real covenants, Termination | Also terminated by abandonment (failure to enforce covenant such that substantial violations destroyed its usefulness)
🗑
|
||||
| WY- Rights in land of another; Private road statutes | Provide mechanism by which landowner may petition to exercise state's eminent domain power to condemn private road across another's property in order to establish access b/w own landlocked property and public road
🗑
|
||||
| WY- Rights in land of another; Private road statutes: "No outlet" requirement | Owner of land w/no outlet or connection w/public road may file application w/board of county commissioner in county land in to obtain access across land of another;
Access via lease adjacent land or illogical/uneconomic/unproductive road NOT outlet
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Application for private road must contain | 1. Legal description,
2. Why land has no legally enforceable access,
3. Efforts to purchase legally enforceable access,
4. Proposed access routes,
5. Effected parties,
6. Actions of applicant cause land to lose or not have legally enforceable access
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Notice and hearing | W/in 10 days of filing applicant must give notice to affected parties;
W/in 45 days of receiving notice, affect party shall notify board and applicant in writing of location/description of proposed alternative route;
Board review application w/in 85 day
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|
||||
| WY- Rights in land of another; Private road statutes: Notice and hearing, Once Board finds private road necessary | It will 1) certify petition w/in 20 days to dist. ct in which case location determined, or 2) elect to retain jurisdiction appointing 3 disinterested viewers and appraisers;
If satisfied declares road and record
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Notice and hearing, Appeal | Parties may appeal Board's decision to district ct within 30 days
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Notice and hearing, Affected parties | Private road action, applicant need not join neighboring landowners in proceeding when applicant already hold private record access across neighboring lands
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Notice and hearing, Temporary access | Board does NOT have authority to grant over proposed private road during pendency of action
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Damages | Viewers and appraisers must determine value of property before road;
May include reasonable compensation for improvements on land where road granted
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Vacation of private road | Administrative act so to vacate same process
🗑
|
||||
| WY- Rights in land of another; Private road statutes: Vacation of private road, Before granting Board must | 1. Obtain written agreement from owner of previously landlocked property and landowner over road,
2. Conclude affected property will continue to maintain alternate/legally enforceable/unrestricted access to public road so not cause re-landlock
🗑
|
||||
| WY- Adverse possession; Requirements: Running of statute | Limitation period is 10 years
🗑
|
||||
| WY- Adverse possession; Requirements: Hostile, Boundary line agreements | Fence may be fixed by agrmt if acquiescence for more than 10 yrs;
Fence kept only for convenience or pastures no effect on true boundary line
🗑
|
||||
| WY- Adverse possession; Requirements: Hostile, Boundary line agreements- Fence of convenience | Creates permissive use, and permissive use cannot change possession into adverse title no matter how long;
Permissive use to hostile if-
1. Actual notice,
2 Acts or declaration so great presumed
🗑
|
||||
| WY- Adverse possession; Requirements: Hostile, Payment of property taxes not required | Payment of property taxes not required to establish title by adverse possession, but failure to pay weighed along with other circumstances and tends to weaken claim of ownership
🗑
|
||||
| WY- Adverse possession; Disability: Effect, Statute does not begin to run | 10 SOL does not begin to run against person under legal disability when COA arose
🗑
|
||||
| WY- Conveyance; Land sale Ks: Marketable title, Defects in record chain of title | Defects in formalities of recorded instruments cured after 10 yrs
🗑
|
||||
| WY- Conveyance; Land sale Ks: Seller's liability for defects in property, Warranty of fitness/quality (new construction only) | Implied warranty that new house was constructed in good and workmanlike manner and is suitable for human habitation
🗑
|
||||
| WY- Conveyance; Land sale Ks: Seller's liability for defects in property, Warranty of fitness/quality (new construction only)- Breach | Allows either recovery of money damages for minor defects susceptible of remedy, or rescission and restitution for major defect render house unfit for habitation or not readily remedial
🗑
|
||||
| WY- Conveyance; Land sale Ks: Seller's liability for defects in property, Warranty of fitness/quality (new construction only)- Property disclosure statement, 1-3 | Unless waived by buyer, every seller of vacant land must provide-
1. Whether property offered as unified estate,
2. If fee ownership of underlying mineral estate severed from surface estate,
3. Availability and location of public utilities,
🗑
|
||||
| WY- Conveyance; Land sale Ks: Seller's liability for defects in property, Warranty of fitness/quality (new construction only)- Property disclosure statement, 4-7 | 4. Name of entity maintains roads and level of maintenance available,
5. Availability of water and sewer infrastructures,
6. Availability of fire protection services,
7. Existence and location of easement across land known to seller or recorded
🗑
|
||||
| WY- Conveyance; Land sale Ks: Seller's liability for defects in property, Warranty of fitness/quality (new construction only)- Property disclosure statement, Failure to provide | Does not invalidate transaction, however, willful or negligent noncompliance results in liability for actual damages suffered by buyer
🗑
|
||||
| WY- Conveyance; Deeds: Form and content, Insufficient description- Title remains in grantor | Where K described and as "a parcel of land in the NW1/4 SW1/4 Sec. 16" ct held phrase "parcel of land" insufficient because identified neither size nor specific location
🗑
|
||||
| WY- Conveyance; Covenants for title and estoppel of deed: Quitclaim deeds | Whether an instrument is quitclaim deed is not determined solely on inclusion or omission of warranties;
Rather INTENT of parties controls
🗑
|
||||
| WY- Conveyance; Recording: Requirements for recordation, Instrument must be acknowledge | Unacknowledged instrument is not entitled to be recorded and thus does not provide constructive notice to subsequent purchasers
🗑
|
||||
| WY- Conveyance; Recording: Requirements for recordation, Race-notice statutes | Wyoming has race-notice statutes
🗑
|
||||
| WY- Conveyance; Recording: Requirements for recordation, Who is protect by recording acts | BFP-
1. Purchase in good faith,
2. For valuable consideration (not by gift),
3. With no actual, constructive, or inquiry notice of any alleged or real defect in title, and
4. Who would be prejudiced by cancellation or reformation of deed
🗑
|
||||
| WY- Conveyance; Recording: Record notice, Chain of title- Marketable title acts | Title marketable where grantee (and successors) has unbroken record chain of title for 40 years
🗑
|
||||
| WY- Conveyance; Recording: Record notice, Chain of title- Marketable title acts, Deed received in wrong office | Deeds must be recording in office of county clerk of county where land lies;
Filing or leaving deed in any other office does NOT constitute constructive notice
🗑
|
||||
| WY- Security interest in real estate; Foreclosure | Foreclosure for nonjudicial sale under power of sale;
Foreclose by advertisement and sale if-
1. Default,
2. No other foreclosure proceeding,
3. Duly recorded,
4. Written notice on recorded owner 10 days before
🗑
|
||||
| WY- Security interest in real estate; Foreclosure: Notice of sale | Must be published at least once a week for 4 consecutive wks, and must specify names mortgagor/ee, date mortgage recorded, amt default, description, time/place of sale
🗑
|
||||
| WY- Security interest in real estate; Foreclosure: Sale procedure | Conducted by sheriff, front door of county ct house b/w 10 and 5;
Anyone may bid including mortgagee;
Mortgagor 3 mos from date of sale to redeem paying purchase price + 10% interest, assessment, taxes
🗑
|
||||
| WY- Rights incidental to ownership of land; Natural rights: Water rights | See water outline
🗑
|
||||
| WY- Homestead; Property constituting homestead | Every WY resident entitle to homestead consisting of house and lot or farm not exceeding $10K, secured against rights of creditors;
Attaches regardless how legal title to property held
🗑
|
||||
| WY- Homestead; Transfer of homestead: Married couples | Neither spouse may sell, convey, or encumber homestead w/o joinder of other spouse
🗑
|
||||
| WY- Homestead; Transfer of homestead: Single homesteads | Claimants may convey property without joinder if instrument contains following words "Hereby releasing and waving all rights under and by virtue of homestead exemption laws of this state"
🗑
|
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