Real Property Flashcards
A satisfies all AP requirements to a portion of Bs land. But A never meant to take Bs land, was simply mistaken. A apologizes to B and stops using Bs land. Does B now own the land?
No once A acquired title by AP the only way to give it back to B was to transfer it by deed.
Delivery (present intent to transfer) of deed is presumed when:
Grantor executes and records deed.
Terminating a Covenant/Easement/Equitable Servitude (8)
1 - Writing expressly terminating. 2 - Lands merge back into one. 3- Severing it from land by conveying it separate from the land. 4 - Abandonment: clear intent + affirmative act. Statements alone not enough. 5 - End of necessity; destruction of structure related to easement; condemnation. 6 - AP/Prescription. 7 - Estoppel. 8 - Not recorded and then subsequent BFP. Not terminated but not enforceable against BFP.
L to T for 5yrs. Commercial. 1 - What kind of Tenancy? L reserves right to terminate if T misses monthly rent. 5yrs expires → T stays. 2 - What kind of Tenancy? 3 - What can L do now? 4 - What would the terms be? 5 - What if commercial greater than a year? What if residential? What if commercial less than a year?
1 - Tenancy for Years. 2 - Tenancy at Sufference. 3 - L can evict or create a new periodic tenancy. 4 - Same terms as previous. 5 - Since it was a commercial greater than a year it turns into a periodic tenancy of year to year. If residential it would turn into a periodic tenancy of month to month; also if it was commercial of under a year.
2000 - O creates subdivision plan with one tract reserved for public school. 2006 - O sells a bunch of lots to man. 2007 - Man sells the school tract to friend. 2008 - School votes to erect school. Friend objects. Who wins?
1 - no consideration needed for a public dedication.
2 - once land dedicated school can accept at any time until dedication is revoked by the original grantor.
What Mortgagee actions discharge the Mortgagor from liability to the Mortgagee after Mortgagor transfers property to a transferee who assumes the mortgage?
Mortgagee waiving an acceleration clause; due-on sale clause does not discharge original Mortgagor’s liability. Discharge occurs if: Mortgagee → 1) Releases transferee; or 2) modifies terms of loan with transferee; or 3) releases Mortgagor; or 4) impairs the property. Think → when Mortgagee transfers to transferee and transferee assumes then while Mortgagee is still liable she can seek reimbursement from Transferee, but if Transferee is let off the hook then Mortgagee has no protection nor benefit of bargain. We assume Transferee paid less by assuming mortgage.
A enters into Mortgage with B. A was under duress when did so. A later sells to C. C pays less because C is assuming mortgage. Can C assert As duress defense? What about if A gifted it to C?
1 - No, C cannot get benefit of the lower price for assuming the mortgage and also assert As defenses to the Mortgage. That would be unjust enrichment.
2 - If C was donee then C can assert As defenses.
Dedicated for Public Use
When O dedicates property for public use; the public has an easement so the O cannot do anything in contravention of the public’s easement. Public must accept the dedication; implied acceptance counts.
Acceptance and Deeds
If its beneficial then grantee is generally presumed to have accepted. Acceptance relates back in time to when deed was transferred even if grantee never knew about it. But BFP; Creditor could defeat it under recording statute. Once Accepted Grantee can only give it back through new deed transfer.
Air Rights v. Sunlight
Air Rights - O has right to reasonable use and enjoyment as long as doesnt interefere with another’s reasonable sue and enjoyment. Think excessive noise/aircrafts.
Sunlight: No rights to sunlight or to a view. No cause of action if neighbor erects building that blocks your view or your sun - unless bad-faith purpose.
A and B own adjoining parcels of land. Only bushes in between. Both want a wall. Reach deal. B pays for wall in exchange for wall sitting on As property. A then sells property to C. A tells C about wall and the deal. C wants to tear wall down. B says no. Who wins?
Wall as Fixture: Fixtures built on RP become party of property. As wall is on Cs land C can do what he wants with it.
Wall as Easement: Not here because no writing and no Estoppel. No Prior Use because Wall wasn’t built when both lands were owned by same person and owner used one to benefit the other.
O to Banker for life, and then to my heirs; but if none of my heirs survive the banker, then to my lawyer. A and B are Os heirs when O dies. A & Bs interests: 1 - at time? 2 - when O dies? 3 - what’d lawyer have?
4 - Doctrine of Worthier Title Impact?
5 - Shelley’s Case doesn’t apply here but how could it?
1 - A and B had expectancies at transfer because not yet the heirs. 2 - Once O dies and A/B are heirs → they have Vested Remainders subject to complete divestment. 3- Lawyer had a shifting executory interest.
4 - DWT impact: When grantor gives interest in heirs she gives interest back to self. Once she gets it she can give to heirs if she wants to. DWT would have given O a Reversion.
5 - Shelley transforms O to Banker for life and then to his heirs → into O to Banker. Banker with FSA instead of LE.
Tenant abandons premises during a lease. What’s it treated as? What options does LL have?
Abandonment is treated as offer to surrender Ts rights under lease. LL can either: 1) accept surrender. T no longer liable for future rents. LL can implicitly accept by silence to T; and either re-renting or retaking possession. OR 2) Reject the surrender. T still liable for future rents. BUT → majority rule: LL must mitigate by treating as a vacant stock. LL can get deficiency. minority rule (very pro-LL): LL doesnt need to mitigate. REMEMBER: LL cannot recover for future rents until they become due.
Can Junior Interest holder foreclose when there are Senior interest holders?
Of course, but the foreclosure sale will not extinguish the senior interests.
Recording Act and Subsequent Purchasers of Value wrinkle.
Donees cannot beat prior purchasers of value based on recording statute. But Race cannot help a subsequent purchaser from defeating a Donee when Donee recorded first.
O devises in Will house to A; residuary of estate to B. Also GENERALLY all my debts paid by residuary of estate. A gets house subject to mortgage.
1 - CL Exoneration of Liens Doctrine?
2 - Modern doctrine?
1 - A is entitled to have the mortgage/encumbrance paid off from the residuary.
2 - Absent a specific intent to the contrary, A would take house subject to the encumbrance; and no payment from residuary.
What is a Private Nuisance action and who can bring it?
What is a Public Nuisance and who can bring it?
Private Nuisance is a “substantial, unreasonable interference with another individual’s use or enjoyment of her property.” Anyone with possessory rights can bring the claim. Subjective mental state of Nuisance-causer doesn’t matter → can be intentional; reckless; negligent; result of abnormally dangerous conduct.
Public Nuisance: an unreasonable interference with the health, safety, or property rights of the community. Must show that you suffered a different kind of harm than the rest of the people to bring a claim.
Specific Performance as a Remedy for Real Property Contract Breach. 1 - Buyer; 2 - Seller. 3 - Abatement?
1 - Buyer can get SP because of unique nature of land, money wont necessarily compensate. 2 - Under mutuality of remedies theory S can also get SP and force Buyer to buy land. But some courts dont like forcing Buyer to give Seller money because its not unique like land. 3 - If Buyer seeks SP but some breach from S devalues Property then Buyer can get abatement to compensate for the defect.
Minority Strict Foreclosure Rule
Mortgagee brings equity action for order requiring Mortgagor to pay obligation within specific period of time or else: 1) forfeit equity of redemption; and 2) Mortgagee takes title.
Subjacent Support - O transfers mineral rights below land to A. A removes oil minerals from property. 1 - O had existing building when transfer → building damaged from A. Liability? 2 - O puts up building after transfer → building damaged from A. Liability?
1 - When O has existing building before transfer → A is going to be strictly liable for damaging it.
2 - When O puts building up after the transfer A is only liable for negligence.
O to A for life or until A vacates premises/gets married, then to B. What interest does B have?
B has two interests. If A dies before vacating or getting married → B has a vested remainder. If A vacates or gets married → B has a shifting executory interest.
O to my Grandchildren who reach 21, no matter if they are born after I die. 1 - Inter Vivos & RAP? 2 - Will & RAP?
1 - If an inter vivos conveyance RAP voids the interest because O could have more children while he’s alive. RAP can only use validating lives that are in being at the time of the conveyance so future children cannot be validating lives.
2 - If its by will then Os children can be validating lives because Os grandchildren born to his children either vest or forever fail to vest within 21 years of their parents (Os children) dying. If it was O to my Grandchildren who reach 22 then we have different issues.
A satisfies all AP requirements to a portion of Bs land. But A never meant to take Bs land, was simply mistaken. A apologizes to B and stops using Bs land. Does B now own the land?
No once A acquired title by AP the only way to give it back to B was to transfer it by deed.
O owns property. She uses gravel road from one side of land to get to highway on other side of land. She’s used it for 18 years. Buyer knows she’s been using it. The gravel road gives “significantly better access” to the highway then a county road which is also accessible from that far side of the land. O divides land in half and sells half far from highway to A. Does A have an Easement by Implication? Elements?
Easement by Implication arises when single Owner when owning whole land: 1) made continuous use of would be easement; 2) it was apparent or buyer knew about it; and 3) it was reasonably necessary to the now-purported dominant land’s use and enjoyment. Here: it was continuous because for 18 years. Buyer knew about it. And significantly better access is reasonably necessary. Remember this is not strict necessity, like I’m landlocked and I need an easement by necessity.
Rule of Convenience. Example of how it saves a Class. A conveys BA to B for life, then to Bs grandchildren. 1 - At time B has one grandchild, X. 2 - At time B has no grandchildren.
1 - At time of conveyance X is vested and has a VRSO. When B dies, class closes because X is entitled to immediate possession. Therefore only grandchildren alive at Bs death will get an interest. 2 - At time of conveyance no vested grandchildren. B could still have other children not alive at time of conveyance. It could be those unborn children who have grandchildren. Because they weren't lives in being at time of conveyance they cant be used to validate any of the grandchildren's potential interests.
What is a Private Nuisance action and who can bring it?
What is a Public Nuisance and who can bring it?
Private Nuisance is a “substantial, unreasonable interference with another individual’s use or enjoyment of her property.” Anyone with possessory rights can bring the claim. Subjective mental state of Nuisance-causer doesn’t matter → can be intentional; reckless; negligent; result of abnormally dangerous conduct.
Public Nuisance: an unreasonable interference with the health, safety, or property rights of the community. Must show that you suffered a different kind of harm than the rest of the people to bring a claim.
LL and T enter into Tenancy at Will. Rights of parties in following: LL says only I can terminate the lease at any time? Lease says T can terminate the lease at any time, but silent as to LL?
1 - T may also have same right to terminate the lease at will based on unconscionability.
2 - Its not unconscionable to give only T the right to terminate the lease at will so Court won’t imply that L also has it.
Assume no recording problems. O takes out Future Advance Mortgage from A. 1.5 million commitment. Bank to give 300k immediately. 500k in 1 month. 700k in 2 months. 1.5 months in and with 800k in loans O takes out another loan from B for 500k. 1 - What if Bank was obligated to pay out the 1.5 million? 2 - What if it was optional whether Bank would pay out the scheduled loans? 3 - Import of Notice 4 - Modern Trend?
1 - Future Advance Mortgages are senior to any junior interests so long as they are obligatory future payments. 2 - If they are optional future payments then you go by the order of the payment. Here the 500k loan from B would be senior to the remaining possible 700k from A.
3 - Optional FAM loses out to subsequent mortgage that come before optional loans when FAM has notice of subsequent mortgage. Majority: Actual Notice. Minority: Constructive Notice is enough. 4 - Modern Trend is that even optional FAM has priority over all subsequent mortgages.
