Property Flashcards

Question

easement in gross

Answer 1

Holder has personal/commercial advantage unrelated to use/enjoyment of land Servient land burdened No benefited/ dominant tenement Examples Right to place a billboard on another’s lot Right to swim in anothers pond Utility company’s right to lay power lines on another’s lot Not transferable unless it is for the commercial purposes

Answer 2

P- prescription ( adverse possession Continuous uninterrupted use Open and notorious Actual but not exclusive Hostile I- implication Preexisting use/ quasi easement N- necessity G- grant In writing signed by thee holder of the servient tenement ( unless outside SoF)

Answer 3

E- estoppel Oral expression of n intent to abandon an easement won’t terminate an easement unless its also committed to writing or accompanied by action Servient owner materially changes positions in reliance N- necessity When need ends unless easement was reduced to an express grant D- destruction ( of servient land) C-condemnation ( of servient land by gov eminent domain power wi) R-release ( by holder to servient owner) A- abandonment( physical action, an intent to never use easement again ) M- merger ( easements & servient land held by same person) Prescription ( by servient owner)

Answer 4

Mere privilege to enter another’s land for narrow/delineated purpose Creation No writing required Freely revocable at will of licensor Profit Entitles holder to enter servient land & take some resource Creation, termination,alienation(transfer) = same as easements Can also be extinguished through surcharge Surcharge = misuse that overly burdens the servient estate)

Answer 5

Covenant =promise to do or not do something negative / restrictive= refrain from doing something ( i promise not to build for commercial purposes) Affirmative = do something related to land ( I promise to maintain our shared fence) Distinguish by remedy Money damages: construe as covenant at law Injunction: construe in equity as equitable servitude

Answer 6

W- writing I-intent Intended that the covenant would run T-touch & concern Affecting parcel owner in her use of that parcel of land Affirmative covenants touch & concern the nad if they require the holder of the servient estates to do something that increases her obligations in connection with the land H-HOrizontal & vertical privity Horizontal ( original parties to the arrangement, grantor- grantee relationship not just two people agreeing ) Requires they be in succession of estate They shared some interest in the land independent of the covenant Vertical ( b/n original party and a successor to their interest) Some non-hostile nexus such as K, devise, or descent N- Notice Successor must have had notice of the promise when she took possession

Answer 7

W- writing I-intent T- touch & concern V- Vertical privity

Answer 8

Promise equity will enforce against successors of burdened land (regardless of whether it runs with land at law) Bar exam= indicate want injunctive relief= triggers this

Answer 9

W-writing I- Intent T- touch &concern N- Notice ES- Equitable servitude

Answer 10

Under common scheme doctrine, ct will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise Common scheme doctrine Scheme of development ( including D’s lot) when sales began D had notice of promise when they took Notice in 3 forms (AIR) A- actual = literal knowledge I- inquiry= lay of land, general observation R- record= public docs If scheme arises after some lots ate sold, no implied servitude Must be from inception

Answer 11

Neighborhood conditions have change Person seeking enforcement violating similar restriction on nown land ( unclean hands) Benefited party acquiesced in violation of sevituded by a burden party Benefitted party acted in way that reasonable person would have abandoned covenant (estoppel) Benefitted party fails to bring suit w/i reasonable time (laches)

Answer 12

unconventional means to title of a real prop. Acquired by acting as an owner for a specified length of time under claim of right or color of title Possession for statutorily prescribed time can ripen into title if elements met (OCEAN) AP Elements (OCEAN/ All Horses Eat Old Corn) Actual Possession- physically on the land in possession/control and using it in the nature of the land Accrues that statute of limitation must file for ejection to get a person to leave the property as a trespasser before SOL is over and they claim AP Hostile, Adverse and under claim of right- Hostile and under claim of title, on the land and using it w/o T.O’s permission as if it was their own Exclusive Possession- Exercise dominion over prop, using land in a way that excludes other ( T.O, another AP, anyone on land W/O AP permission) Open and Notorious- use land in a way to put reasonably attentive owners on notice (Constructive notice), an ordinary person would notice a person is present and using the land Objective test used to decide constructive notice Reflects the sleeping principle: purpose to penalize the negligent and dormant owner for sleeping upon his rights Continuous for the statutory period- continuous, not constant, can come and go in the ordinary course given the nature of the prop in question so long as it is for the duration of the statutory period

Answer 13

combine periods of time together to satisfy the time requirement for SoL if there is privity between APs Privity looks at successive and mutual relationships (blood, lease, or service), is recognized by law Ancestor-heir (blood, intestate) Grantor-grantee (deed) Devisor-devisee (will) Testator-executor (will) Assignor-assignee ( K/debt) Donor-donee ( NC, deed of gift) Leasor-leasee (§22-2) Not Tacking if new AP forces out old AP or AP leaves w/ intent to relinquish claim (Abandonment)

Answer 14

Nothing T.O. does w/ title after the AP enters on land will have any effect on AP except… Someone has a future interest in the prop, “To A for life, then to B” Future interest operative at death Only AP from A, not B b/c B is not the owner yet so no SoL for ejectment yet, have to wait u ntil A dies to try and adversely possess B’s land *Someone has mortgagee on land- no SoL until Bank foreclose Surface and Mineral estates severed: house/ land on top of the surface has one owner, mineral in grounds below the surface has another owner Disabilities: owner under disabilities at the time AP begins Infancy, insanity, imprisonment= 3 “i”s in disabilities All disabilities at the time of AP trying to begin must be removed + w/e SoL says Governmental entity is the owner Immuned from AP unless used in a proprietary capacity

Answer 15

Two step process Contract (conveys equitable title) Closing (deed passes legal title) SoF Applicable K must be in writing Signed by party against whom enforcement sought Must also include Identify parties Describe prop State consideration

Answer 16

Allows buyer to enforce oral K by specific performance if K is certain and clear and Acts prove existence of contract Acts usually satisfied by ⅔ of following Buyer took possession Buyer paid purchase price or significant portion Buyer made substantial improvements

Answer 17

Legal title: deed (right to possess) Equitable title: K (risk of loss) Buyer bears risk unless K says otherwise once K is signed and each party is entitled to specific performance , equity regards the Buyer as the owner of real prop and the seller’s rights to the proceeds of the sale is considered personal prop If seller dies , takers of her real prop must transfer title at closing and the proceeds pass to the decendent’s takers of her personal property

Answer 18

seller’s implied promise to provide title reasonably free from doubt/threat of litigation on closing Common defects that render title unmarketable are Defects in record chain of title- most often adverse possession Encumbrances (mortgages, liens,easements, restrictive covenants) Zoning violations: existing zoning violation makes unmarketable Title must be marketable on the day of closing

Answer 19

Seller liable for failure to disclose latent material defects To be failure to disclose Seller must know or have reason to know of defect Seller must reliaze that the buyer is unlikely to discover the defects AND Defect must be serious enough that the buyer would probably reconsider the purchase Seller can disclaim specific types of defects to be held liable ( “ seller is not liable for any defects in the roof) No implied Warranty of fitness or habitability Buyer beware EXCEPTION: sale of new home by builder

Answer 20

To pass title , must be “LEAD”: lawfully executed and delivered Lawful execution requires Writing signed by grantor Unambiguous description Identification of parties Words of intent No consideration needed

Answer 21

Legal standard testing grantor’s present intent (did they have present intent to be bound) Delivery presumed if deed Handed to grantee Acknowledge by the grantor in front of a notaru or Recorded Rejection defeats delivery Acceptance is presumed but if grante expressly rejects the deed, the deed is ineffective to pass title Can be accomplished by delivery by third party if third party is an escrow agent

Answer 22

warrants title against all defects in title whether t hey arose before or after the grantor took title Grantor promises to warrant and defend grantee’s title against the lawful claims and demands of all persons whomsoever Look at which covenant breached and then majority minority rule to see if remote grantee can sue Majority: cannot sue for a present covenant only a future covenant Minority: can sue for a present of future covenant

Answer 23

contains warranties only against the grantor’s own acts but not the acts of the other Defect is a mortgage on land executed by grantor’s predecessors, grantor not liable Grantor limits his promise to defend grantee’s title against claims and demands of persons claiming an interest in the property ( by, through, or under the grantor)

Answer 24

contains no warranties of any kind, conveys whatever title the grantor has, if grantee takes nothing by deed, the grantee cannot sue the grantor Do not contain any covenants or promises regarding title, nor do they purport to transfer any particular interest in the land

Answer 25

some consideration paid by the grantee in order to raise a presumption that the grantee is a bona fide purchaser entitled to the protection of the recording acts against prior unrecorded instruments deed must contain a description of the parcel of land conveyed that locates the parcel by describing its boundaries document under seal ( deed to land is effective when signed sealed and delivered

Answer 26

covenant of seisin covenant of right to convey covenant against encumbrance Present covenants broken if ever at time the deed is delivered, present covenants do not run with the land ( SoL starts at time of delivery of deed) Either the grantor has ( title to prop, right to convey, an encumbrance) or he doesnt

Answer 27

grantor warrants that he owns the estate that he purports to convey (in fact owns the estate)

Answer 28

grantor warrants that he has the right to convey the property ( in fact the person who is authorized/ has right to sign over )

Answer 29

the grantor warrants that there are no servitudes/liens encumbrances on the property at the time of the conveyance Encumbrance: claim or liability attached to prop that may lessen its value; a prop right that is not an ownership interest Easement Mortgage Judgment lien GR: the existence of an encumbrance constitutes a breach of the covenant against encumbrances

Answer 30

covenant of general warranty covenant of quiet enjoyment covenant of further assurances Future covenant not breached until the grantee or his successor is evicted from the property, buys up the paramount claim, or is otherwise damaged

Answer 31

the grantor warrants that he will defend against lawful claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title

Answer 32

the grantor warrants that the grantee will not be disturbed in possession and enjoyment of the property by persons assertion of superior title

Answer 33

the grantor promises that he will execute any other documents required to perfect the title conveyed (if missed a page to sign will come back and sign it )

Answer 34

B wins if records properly before A “ A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is first recorded

Answer 35

B wins if BFP when took (last BFP to take wins) A conveyance of an interest in land shall not be valid a gainst any subsequent purchaser for vale, without notice thereof, unless the conveyance is recorded

Answer 36

B wins if BFP and records properly before A A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded

Answer 37

Purchaser (didn’t take by gift, will, inheritance) Pay valuable consideration Take w/o notice of prior conveyance

Answer 38

Actual B learns of A (literal knowledg) Inquiry B charged with what inspection would’ve revealed Record B on notice of deeds properlu recorded in chain of title

Answer 39

Sequence of recorded documents capable of giving record notice to later takers

Answer 40

Anyone who takes from a BFP will prevail against any interest the BFP would’ve prevailed against

Answer 41

Recorded deed that isn’t connected to chain of title (incapable of giving constructive notice)

Answer 42

Grantor purports to convey to grantee realty they don’t then own Grantor later acquires title to the property Title automatically vests in grantee Grantor is estopped from enying validity of preacquisition conveyance Watch out for BFP. early recording is outside chain of title

Answer 43

Purchase money mortgage: lender’s security interest in real estate that their loan enables debtor to acquire Mortgage creation Debt (note)+ lien in land to secure debt (mortgage) In writing (legal mortgage) Transfer of interest Oindorsing the note and delivering it to the transferee or Executing a separate document of assignment Recording statutes protect mortgagees If recorde,mortgage sticks with the land Whos personally liable on debt If O (mortgagor) sells Blackacre to B: B assumes mortgage: Both O and B liable B takes subject to mortgage: only O, but if recorded, Blackacre can be foreclosed

Answer 44

The land is sold, sale proceeds fo to satisfying the debt Deed in lieu of foreclosure Permits the mortgagee to take immediate possession w/o foreclosure sale Since not an actual foreclosure it doesn’t operate to terminate any junior liens that may be present on the mortgaged real estate Junior liens are paid off in order of their priority any remaining surplus goes to debtor Effect of forclosure on interests Junior interests terminated (paid in descending order from sale proceeds) Necessary parties: all junior lienholders+debtor Senior interests unaffected (buyer takes subject to them) Priority of creditors Creditor must record First in time, first in right Purchase money mortgage: first priority in parcel financed

Answer 45

Debtor can redeem land prior to foreclosure sale by paying Cut off by foreclosure sale No clogging equity of redemption Debtor cannot waive right to redeem in mortgage itself

Answer 46

Variance Permission to depart from zoning restriction Show undue hardship+ no diminution to neighboring property values Nonconforming use Previously allowed use cannot be eliminated all at once unless just compensation paid Cumulative zoning Land ranked and cateforized to create hierarchy of uses (single family home to highest use) single family home 2 family home apartment buildinging striip mall factory Special use permit Must be obtained even though zoning proper for intended use( hospitals, drive in

Answer 47

capable of passing by will

Answer 48

capable of passing y intestacy (no will)

Answer 49

capable of transfer inter vvivos (during lifetime)

Answer 50

“To A “ or “to A and his heirs” A living person has no heirs, only have heirs apparent ( they have no power) Potentially limitless duration Devisable,descendible, alienable

Answer 51

Terminates automatically on happening of stated event created by clear durational language: “so long as”, “while”, “during””until” devisable , descendible, alienable Always subject to the condition If prescribed condition happens automatically reverts to grantor Reverter to grantor only future interest

Answer 52

Use of conditional language+ explicit right to re-enter No automatic termination (grantor exercises it prerogative/ option to choose to terminate)

Answer 53

Use of conditional language+ explicit right to re-enter No automatic termination (grantor exercises it prerogative/ option to choose to terminate)

Answer 54

To A but if X event occurs, then to B Third party, not grantor, takes if condition betrayed Forfeiture automatic Rules of construction Words of mere desire, hope, intention don’t create defeasible fee Absolute restraints on alienation are void

Answer 55

Measured in lifetime terms (not in term sof years) “To A for life” (A=life tenant) duration= for the life of a person Pur Autr vie- “ for the life of another” Life tenant’s rights and duties Life tenant may alter or demolish buildings if Market value of future interests is not diminished and either The remaindermen do not object or substantial and permanent change in the neighborhood conditions hasdeprived prop in its current form of reasonable productivity or usefulness

Answer 56

All ordinary uses and profits from land Don’t commit waste Voluntary:actual overt conduct causing drop in value GR: life tenant can’t consume or exploit natural resources on prop some exceptions is open mine doctrine: if mining done on the land prior to the LE, the life tenant can continue mining but is limited to the mines already open Permissive: failure to make reasonable measures to protect land (neglect) ameliorative : change that benefits the property economicallyLife tenant may alter or demolish buildings if Market value of future interests is not diminished and either The remaindermen do not object or substantial and permanent change in the neighborhood conditions hasdeprived prop in its current form of reasonable productivity or usefulness

Answer 57

Possibility of reverter Accompanies fee simple determinable Right of entry/power of termination Accompanies fee simple subject to condition subsequent Reversion Accompanies when grantor conveys estate of lesser duration life estate, term for yrs

Answer 58

Possession on natural expiration of preceding estate ( life estate or term of years) “To A for life, then to B” (A=life tenant; B=remainderman) Contingent: taker as yet unascertainable or subject to the condition precedent Condition precedent: appears before language introducing you to remaindermen vested: ascertainable , strongest remainder, guaranteed to get previous estate after prior has terminated Ready to become possessory whenever and however all preceding estates expire no condition precedent Condition subsequent= appears after language that, alone and set off by commas, creates remainder

Answer 59

Indefeasibly vested- remainder certain of becoming possessory in the future & cant be divested Vested remainder subject to open ( subject to partial divestment) Has a condition subsequent Open to a class ( can stll be added, siblings, children, some group) “ to A for life, then to B’s children B’s children= class Rule of convenience: class closes when any member can demand possession of property= closes at either A or B’s death Womb rule: if in womb when A or B dies they are included in class Vested Remainder subject to complete defeasance Subject to condition subsequent Grantee faces the possibility of being divested at future date if condition subsequent is not satisfied Typically followed by executory interest “But if” language “O to A for life, then to B; but if B gets a tattoo, to C

Answer 60

Rule in Shelly case Doctrine of worthier title

Answer 61

Cut short prior taker Shifting: follows defeasible fee, cuts short someone other than grantor Shifting (fwd to another grantee)- divesting another grantee Sprining: cuts short grantor Springing (backward to grantor)- divests the transferor

Answer 62

Certain future interests are void if there’s any possibility they might vest more than 21 years after a person alive at the time of the grant has died Basic concept: if at time interest created the interest can/might vest in interest too remotely it is voided Mechanics of the rule 1) determine if future interest subject to Rule Applies only to interest not vested at time of the conveyance that creates them ( don’t apply to present possessory estates) Applies to 3 interest: contingent remainders, executory interests, and class gifts ( vested remainders subject to open) 2) what has to happen for future interest holder to take 3) find measuring life Validating Life: person found who will enable proof that contingent interest wil vest or fail w/i life, or at death of that person or w/i 21 years after that person’s death Look for persons who lives are causually connected w/ the vesting or termination of the interest ( can effect condition) Must be alive in being at time interest created including those en ventre sa mere 4) determine if given interest might not vest w/i the perpetuity period “ lives being in 21 years” Prove contingent interest is certain to vest or terminate no later than 21 years after death or some person alive at the creation of the interest

Answer 63

Executory interests w/o time limit Age contingency beyond age 21 in an open class Unborn widow Don’t know who will be married to at time of death Fertile octogenarian Gift to grandchildren Slothful executor Transfer based on probate of will

Answer 64

Wait and see statute: validity determined per facts as they come to be, Basis of facts existing at the end of the life estate rather than at the creation of the interest USRAP: provides alternative 90-year vesting period Cy pres: court can redraft “ as near as possible” to grantor’s intent

Answer 65

Disabiling Absolute ban on transfer= void forfeiture= attempted transfer forfeits interest= valid if reasonable/time limited promissory= attempted transfer breaches covenant= valid if reaosnable/time limited discriminatory= based on race, religion,ethnicity= void An absolute restraint on the power to sell or transfer is repugnant to public policy and thus void The prohibition against restraints on alienation will not extend itself to restraints on the power to sell or transfer that are reasonable in their nature and purpose and time limited

Answer 66

a junior mortgage prevails over the modification if the modification materially prejudices the holder of the junior mortgage, If prejudice then order of priority changes and Jr has priority over Sr’s Prejudice if Increasing the amount of principal; or Increasing the interest rate Do not prejudice if Extension of the mortgage maturity date Rescheduling installment payments

Property Flashcards

(90 cards)