prop 2 dean kelly

Question 1

types of implied easements and

Answer 1

implied by prior use
implied by necessity
implied by estoppel
by grant & reservation

Question 2

easement by prescription

Answer 2

• by prescription
  • CHUNG
    
    • continuous
      
      • frequency like a title owner of that type of property
    • adverse/hostile
      
      • are you there without permission of TO?
      • looks to state of mind of TO; as long as they didn’t grant permission
        
        • sometime looks at state of mind of trespasser like bad faith or good faith (mistaken)
      • exercise dominion like titled owner
      • possession not shared with TO
    • use
    • notorious /open
      
      • would put a reasonable owner on notice
      • upon reasonable inspection by owner, they must be able to see that someone is using their land
    • goes on for statutory time

Question 3

implied by necessity

Answer 3

• implied by necessity
  • title held in common ownership pre-severance
  • easement is necessary at time of severance as parcel is landlocked (at the time of sale you must not have access)
    
    • neccessary = no effective use of the land could be made w/o easement
    • landlocked parcel: no legally enforceable access to public road except via grantors property
    • last as ling as necessity does
    • NULL - necessary, unified, landlocked

Question 4

implied by prior use

Answer 4

• implied by prior use
  • common ownership of land before severance (unified ownership)
  • use before severance that is apparent and continuous
    
    • using one part of property to benefit another part of the property
    • that is apparent and continuous
      • when the parcels were separated one of the parcels visible and it was reasonably apparent that made some use of the other parcel **
  • necessary any beneficial to enjoyment of land
    
    • Necessary = “reasonably convenient” & is an elastic concept

Question 5

implied by estoppel

Answer 5

• implied by estoppel
  • Conduct by owners of the serivent estate typically the express or implied grant of license to cross or otherwise access the servient estate
• A detrimental change in position by another party made in
• Reasonable reliance
  • result
    
    • license becomes irrevocable, and last “so long as it natures calls for” (probably permanently)

Question 6

expressed easements

Answer 6

• affirmatively created by the parties in writing that satisfies the requirements for a deed
  
  • the terms of an easement determine its scope and any use of the servient property within that scope is permitted
  • only if terms are ambiguous will courts look to the parties intent

writing requirement:
- writing that satisfies requirements for deed-ie:
- identify grantor, grantee, and easement created
- indicate present intent to create easement
- reasonably describes property and;
- is signed by grantor

Question 7

3 requirements for the burden of an express easement to attached to land flow to subsequent owners (run with the land)

Answer 7

• writing
  
  • typically in deed or referenced in a deed
  • looking for language of specificity by reading easements
    
    • only if terms are ambiguous will courts look to the parties intent - as demonstrated by their postcreation conduct - and what is reasonable considering the easements purpose
  • satisfies statute of frauds
• intent to run
  
  • (expressly stated) words showing intent - “is intended to run with the land to successor owners” or “is intended to bind all heirs and assigns” (pg560-561)
  • implied by circumstances and nature of the easement, ex. ingress or egress
  • presumption that easements are appurtenant (meaning there are two parcels)
    
    • burden of proof is on the other side to demonstrate that it is not appurtenant and that the benefit was for a specific person)
• notice to servient estate holder
  actual
• • actual knowledge
    
    • (known at the time of purchase; state of mind of the buyer, looking for evidence of knowledge),

inquiry
- - physical condition of property is giving you evidence that someone has right to easement visible appearance **of the easement of land
- seeing tire tracks, puts you on inquiry notice

record
- form the fact that the document creating the easement is recorded in public records
- would a proper title search reveal this notice
- normally using the record accounting office

Question 8

surcharge on servient estate

Answer 8

• is easement being used in a way that creates an excess or unreasonable burden on the servient estate beyond what easement allows
• looks to see if there is an unreasonable interference with property of another (nuisance law)
• once there is an overuse of easement, balance both interest to see if there is use beyond the intent of what the easement is
  
  • remedy will not be termination
  • regulation of use
• if unclear if there is surcharge or overuse of easement we must balance interest of parties
  
  • easement holders interest in development/use
  • interests of servient estate holder in security

Question 9

covenant

Answer 9

functions as negative easement
include either
(1) real covenants or (2) equitable servitudes

Question 10

real covenant

Answer 10

real covenant (money & injunction)
- in writing
in writing (in compliance with SOF)
- form document
- in deed to each parcel
- original deed or reference in later deed

• touch and concern
• what kinds of restrictions legitimately will create a corresponding benefit to land
• traditional test: does covenant have to do with the land?
  
  • does it affect quality, value or mode of enjoying the burdened and benefitted

reasonableness test is now the majority

• intent to run with land
• specific language of intent
  
  • “binds heirs or assigns”
  • “intended to run with land”
• if deed is silent, consider
  
  • presumption of intent to run if touches and concerns land
  • is cov primarily beneficial if it does run
• notice
• actual
  
  • LO in fact knows of easement or was told otherwise was aware
• inquiry
  
  • visible signs from observing the property would indicate property is burdened
• record
  
  • proper title search would reveal existence of an easement
  • direct chain of title → old rule
• privity

horizontal (seller and buyer; at time property is made or sold) is there a property transaction? → when promise if first created!**

property transaction and promise is created

vertical (did original owner transfer out property to which property is attached)

Question 11

equitable servitude

Answer 11

equitable servitude (injunction)
- in writing
in writing (in compliance with SOF)
- form document
- in deed to each parcel
- original deed or reference in later deed

• touch and concern
• what kinds of restrictions legitimately will create a corresponding benefit to land
• traditional test: does covenant have to do with the land?
  
  • does it affect quality, value or mode of enjoying the burdened and benefitted
• intent to run with land
• specific language of intent
  
  • “binds heirs or assigns”
  • “intended to run with land”
• if deed is silent, consider
  
  • presumption of intent to run if touches and concerns land
  • is cov primarily beneficial if it does run
• notice
• actual
  
  • LO in fact knows of easement or was told otherwise was aware
• inquiry
  
  • visible signs from observing the property would indicate property is burdened
• record
  
  • proper title search would reveal existence of an easement
  • direct chain of title → old rule

no privity requirement

Question 12

restraints against ailenation

Answer 12

• unreasonable restriction on sale or transfer may be unenforceable
  
  • depends upon if its reasonable or unreasonable

Question 13

gross covenants

Answer 13

gross covenants generally not enforceable

• benefit cannot be enforced by someone who doe snot own land to which the covenant is attached
  exceptions
• homeowners association
• government
• charity

Question 14

implied covenants

Answer 14

implied reciprocal negative servitude = implied covenant

implied covenant is when a person is bound by the restrictions in other deeds when there is a common owner, notice, and evidence of a common scheme.

implied covenants → where developer demonstrates a common plan or scheme of restricts and notice

common gtantor/developer
- must have the same owner or developer of all the land

evidence of common scheme
- multiple conveyances
- Substantial uniform restrictions
- map or plat
- voting rights among owners

notice - but it will be presumed for the exam

Question 15

covenants reasonableness

Answer 15

(all covenants can be challenged for lack of reasonableness)

• post purchase rule changes are evaluated more strenious
• pre purchases have a strong presumption of validity

balance: (SIC) (societial interest, indivudial interest, community interest)

• consider community interest
  
  • economic interest (effect on marketability); reliance/freedom in regulating community life
• consider individual owners interests
  
  • reliance on understanding
  • discriminatory impacts
• consider societal interest
  rule ahsomst unreasonable restraints on aileenation

Question 16

real estate transactions phases

Answer 16

• pre contract phase
  • needs SOF
    
    • be written
    • including the essential terms of contract
    • singed by party to be charged
• contract period (executory period)
• closing

Question 17

equitable conversion

Answer 17

equitable conversion

• once they have signed property right within contract, treat buyer as if they already own property
• risk of loss is on buyer if catastrophic event

Question 18

misrepresentation & fraudulent non-disclosure

Answer 18

used to be cavat emptor

now we require that latent defects be disclosed
which can include defects

along with matieral defects
(defects that change the value of property)

• fraudulent non-disclosures
  
  • failure to disclose when an owner has a legal duty to speak; silence can be fraudulent disclosure
    
    • sellers must typically disclose
      
      • known
      • latent
      • defects that
        
        • materially affect the value or desirability of property

as is clause, would defeat fraudelent non-disclosure suit,but cannot overcome someone who lied

Question 19

the closing & transfer of deed

Answer 19

• writing
• intent to relinquish ownership when deed is given
• **delivery
  turns on the grantors intent that title pass immediately, even if possession is postponed
• acceptance

deed is evidence of transfer of title

Question 20

title assurances

Answer 20

• contract executory period
  
  • seller is obligated to provide marketable title
  • in contract period, there is am implied covenant of marketable title
    
    • if seller cannot give marketable title, the buyer can withdraw
• closing, post-closing
  
  • at closing seller must provide marketable title
  • unless contract provides otherwise, the terms of the purchase and sale agreement are no longer enforceable post closing
• merger
  
  • contract merges into the deed and the deed replaces contract

Question 21

title claim after closing deed

Answer 21

general warranty deed
special warranty deed
quit claim deed

Question 22

general warranty

Answer 22

grantor warrants and defends against any title defects regardless of whether they arose during the period of grantors ownership or that of the predecessor owner (includes 6 covenants)

covenant of seisin
promise that the grantor owns the property and the particular estate she is purporting to transfer

essentially a promise that they own in fee simple

covenant of right to convey
promise that the grantor has the power to transfer the property

covenanrt against ecumberances
a promise by the grantor that there are no encumbrances against the property other than those stated in the deed or those recorded

violation of zoning law, existence of zoning law, violation of covenant is an encumbrance, existence of easement/covenant

coevant of waranty
promise by the grantor to compensate the grantee the if a claimant

covenant of quiet enjoyment
a promise by the grantor to compensate the grantee if a claimant with superior title prevails
against claims that exist at time of closing

covenant of further assurances
promise by the grantor to take the necessary steps in the future and proactively defend against and cure any title defenses

grantor has obligation to act, not just to pay compensation for losses

Question 23

special warranty deed

Answer 23

• grantor warrants and defends against title defects were created during her period of ownership (caused by her) but not by a predecessor owner
• seller is promising they will make buyer whole for any defects in title for anything that happenned during their time of ownership

Question 24

quit claim

Answer 24

grantor makes no warranties whatsoever

Question 25

**present v future covenants** within gen warranty

Answer 25

**present v future covenants** **present (at the time of closing)** - **seisin** - **right to convey** - **encumbrances** statute of limitation for breach start **at the date of closing** **future** - warranty (means general warranty deed) - quiet enjoyment - further assurances

Question 25

race recording

Answer 25

first in time, first in right whoever was first to duly record (duly meaning, recorded in a way to give a future buyer notice)

Question 26

notice recording

Answer 26

- the later buyer prevails over an earlier owners unrecorded interest is the subsequent purchaser has no notice of the pre-existing interest - **who recorded first without notice of pre-existing interest?** - notice takes away priority - **have to have no notice!** - most recent BFP gets notice

Question 27

race - notice

Answer 27

first to duly record without notice BFP is a person who has no notice and duly records first in time if you lose in notice; cant win in race-notice either

Question 28

shelter rule

Answer 28

anyone who takes from the BFP will generally be entitled to the same protection under the recording act as the BFP the transferee takes shelter in the statuts of her transferor, and thereby, steps into the shoes of the BFP even though she otherwise fails to meet the requirement of the BFP status

Question 29

estoppel by deed

Answer 29

one who conveys property in which he has no interest is estopped from denying the validity of the conveyance if he subsequently acquires the tittle that he had previously purported to transfer buyer must do record search, to ensure, person who is selling them property is the actual owner;

Question 30

wild deed

Answer 30

**wild deed** a deed that is not findable with a proper grantor/grantee - a wild deed is a recorded deed that is not connected to chain of title typically because it was recorded too late - it doesn’t impact constructive notice because a subsequent purchaser could not feasibly find it must check grantee/grantor index to trace back to original owner to ensure the chains of title match

Question 31

equitable right of redemption

Answer 31

occurs by either paying entire amount due on the loan, or in some states, just catching up with the payments by paying the past amounts due but not paid - its a second chance with some extra time occurs at the pre-foreclosure stage

Question 32

**statutory right of redemption**

Answer 32

**statutory right of redemption** - right to redeem property after foreclosure happens and after its a new owner - can buy it back after foreclosure at the price it sold at post foreclosure for a set period of time - post foreclosure, deafulting borrower has right to buy back house at sell price

Question 33

short sale

Answer 33

the bank agrees to release the mortgage against the property so the new owner will not have the prospect of foreclosure hovering over transaction; facilitating a sale and likely increases the selling price - **bank and borrower agree the house goes on market and whatever the house sells for is all that the borrower owes to the bank** - **borrower wins because no deficiency** - **bank wins because they get as much money back as possible** - **bank gives up residual right to come after borrower for deficiency**

Question 34

installement land contract

Answer 34

- different arrangement where lender is owner of property, and buyer possess property with understanding they will own property once debt is paid - owner retains titles - buyer lives there and agrees to become owner, after paid in full - if buyer defaults, they must move out, and lender retains value of house and all money put in

Question 35

morgages

Answer 35

**mortgages** grant from the borrower to the lender of the security interest in the property granting them the rirght to foreclose usually includes in a provision for lendee to not commit waste - higher priority creditors get paid first (just meaning who ever recorded first) - junior interest creditors can get rest of money from loanee personally - if anti-deficiency jurisdiction, junior interest are terminated upon foreclosures - when senior parties are foreclosing, they must properly join junior creditors to litigation and must give notice to junior - if notice was given to junior creditor, it is terminated, and new buyer will not be

Question 36

purchase money mortgage

Answer 36

purchase money mortgage lender has priority over earlier recorded judgment lien & PPM gets priority when theres a clause that extends to all other mortgages that person owns (through after acquired property clause) (but PMM will have priority) but PMM still must record or bona-fide purchaser for value will jump them in line - if its judgement lien, and PMM (that didn’t record) then BFP - BFP is first - if PMM did record, then PMM is first then judgement lein then the 3rd, bc they wouldn’t be BFP

Question 37

mechanics lein

Answer 37

dispute between owner and mechanic - mechanic contributes to improving the property, and due to that they create a claim against the property -> stays with property - - dispute between contractor and homeowner - work begins, and its a sale of the house pending → lien dates back to day work begins - can become lien against house - cannot see this as its not in record - so when buyer purchases property, they won’t know its a mechanics lien, but they are stuck with the security interest as it binds the property

Question 38

fraud

Answer 38

- **fraud** - false statement of material fact, that is known to be false, that is intended to induce and does induce detrimental reliance

Question 39

unjust enrichment

Answer 39

- **benefit conferred to TO** - **unjust under the circumstances to allow TO to retain benefit** results in constructive trust

Question 40

statute of frauds

Answer 40

**statute of frauds** - in writing (explaining the property) - identifies parties - signed by party to be charged

Question 41

morgage protection law

Answer 41

equity of redemption statutory right of redemption anti-defeciency rules price grossly inadequate mortgage duty to prevent unjust enrichment

Question 42

termination of easement

Answer 42

merger abandonment

Question 43

latches

Answer 43

unreasonable delay in the enforcement of my rights can be used as defense to say covenant has been terminated

Question 44

vertical privity

Answer 44

focus is whether original owner transfer out property to which promise is attached broken into two catergories strict and relaxed strict looks for transfer of property interest with no future interest retiained relaxed exist if succcessor is in possession even if not owner

Question 45

horiztonal privity

Answer 45

looks for promise during the time of the orginal property transaction - **mutual (simaltaneous);** grantor/ee have shared interest for a period; grantor retains some interest in the property - ex: lease; easement - **Instantaneous**; shared interest for a fleeting moment (typical) - sale; gift; morgage

Question 46

record notice

Answer 46

- **record** - proper title search would reveal existence of an easement - **have to look title that went out form seller in earlier scenarios** - direct chain of title → old rule - **bilateral mutual promise** - can find it through majority record notice - if only buyer that promises - and seek enforcement of promise, the seller never made - l cannot get express covenant there would not be any record notice; then we would go to implied cov

Question 47

termination of covenants

Answer 47

latches acquisance merger abandonment own terms written agreement changed conditions relative hardship